THE STATE OF NEW HAMPSHIRE

SUPREME COURT

 

In Case No. 2002-0210, Petition of Representative Peter Burling & a., the court on May 24, 2002, made the following order:

The Speaker of the New Hampshire House of Representatives, Gene Chandler, has filed a motion for recusal of Chief Justice David Brock from participating in this case. The motion alleges that because eighteen months ago, the house of representatives voted in favor of four articles of impeachment against the chief justice, his impartiality in these proceedings "might reasonably be questioned," thereby necessitating his recusal. For the following reasons, the motion is denied.

The motion for recusal is untimely, having been filed thirty-six days after the filing of the appeal, Sup. Ct. R. 21A, and with no good cause shown for failure to file a timely motion. Id. We choose, however, to address the motion on its merits, and we conclude that it fails.

It is presumed that a judge will not involve himself or herself in a proceeding in which he or she cannot be impartial. See State v. Crockett, 801 S.W.2d 712, 715 (Mo. Ct. App. 1990). Furthermore, it is not enough for a party to allege bias; rather, the party seeking disqualification of a judge must show some evidence of bias or prejudice. See Brewton v. Kelly, 166 So.2d 834, 836 (Fla. Dist. Ct. App. 1964) (affidavits were filed by individuals personally known by the judge, who were familiar with the impeachment proceedings, and believed the judge was prejudiced against the parties). Such a showing must be "clearly established by the record." DeGrace v. DeGrace, 520 A.2d 987, 989 (Vt. 1986) (quotations omitted).

No evidence has been offered to support the claim that the chief justice lacks impartiality in this matter. Throughout the impeachment proceedings, the chief justice participated in a manner respectful to the legislature’s right to invoke such a process and respectful of those engaged in the process. The chief justice never testified during the proceedings with rancor against any member of the house of representatives, nor does the motion present any evidence of ill will harbored by the chief justice against the house of representatives. A general allegation that legislative impeachment proceedings invoked against a judge should bar that judge from performing his or her constitutional responsibilities, absent clear evidence of bias or partiality, is unfounded.

In addition, we reject the argument that because the house of representatives voted in favor of articles of impeachment against the chief justice, his recusal in this unrelated matter is necessary to avoid an "appearance of bias." See State v. Linsky, 117 N.H. 866, 882 (1977). If this position were adopted, logic compels that if the judiciary acts in a manner adverse to the legislature, similarly the legislature would then be barred from participating in matters relating to the judiciary. Under this scenario, the governmental functions of the State would quickly become paralyzed. The nature of a democratic system requires that the co-equal branches of government at times conflict. Neither conflict, nor cooperation, should in such circumstances serve as the basis for disqualification.

We conclude that the motion has failed to establish "the existence of bias, or such likelihood of bias, or an appearance of bias that the judge is unable to hold the balance between vindicating the interests of the court and the interests of a party." Blevens v. Town of Bow, 146 N.H. 67, 70 (2001) (quotations omitted).

Brock, C.J., Nadeau, Dalianis, and Duggan, JJ., concurred.

Eileen Fox,
Clerk