In Case No. 99-805, In the Matter of Judith O. Thayer and W. Stephen Thayer, III, the court upon April 25, 2001 made the following order:

Petitioner Judith O. Thayer’s "Emergency Motion for an Order Disqualifying Specially Assigned Justices Fauver, Perkins and Smuckler [sic]" is denied. The court concludes that the motion has no basis in law or fact. See Taylor-Boren v. Issac, 143 N.H. 261, 268 (1998).

The petitioner asserts that the present panel is biased against her and must be recused. Specifically, she asserts that the present panel must be biased because it was selected by an allegedly tainted process and because certain members of the panel allegedly overheard others make passing references to her case, one of which was derogatory. She also argues that the present panel exhibited this bias when it elected to proceed with oral argument, despite her pending motion to strike, asked questions of her attorney-in-fact during oral argument and listened "attentively" to her opponent’s arguments. We disagree.

To establish bias, the petitioner must show that an "objective, disinterested observer, fully informed of the facts, would entertain significant doubt that justice would be done in the case." Taylor-Boren, 143 N.H. at 268 (quotation omitted) (emphasis added). The petitioner must 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 interests of the [petitioner]." State v. Fennelly, 123 N.H. 378, 384 (1983) (quotation omitted). "Rumor, speculation, beliefs, conclusions, innuendo, suspicion, opinion, or similar non-factual matters" are not sufficient to support a finding that a judge’s impartiality may reasonably be questioned. See United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993). Also insufficient are allegations that a judge has previously issued adverse prior rulings, is familiar with the parties or the type of case or defenses, has been the recipient of a baseless personal attack by a party, has been characterized in a certain way in the media, or been the subject of threats or other attempts to intimidate. See id. at 993-94.

The petitioner has failed to sustain this burden. Justices Fauver, Perkins and Smukler were not involved in the appointment of the special panel. Additionally, no deficiencies in the process, as it applies to the justices in question, have been or could be asserted. Moreover, proof that a judge may have overheard a passing reference to a case is not sufficient to support a finding of either actual bias or an appearance of impropriety. Cf. State v. Linsky, 117 N.H. 866, 883 (1977) (exposure of judge to media accounts of a case insufficient to show bias).

The petitioner’s claims that the justices demonstrated actual bias by asking questions or by listening attentively during oral argument also lack merit and warrant no further discussion. See Vogel v. Vogel, 137 N.H. 321, 322 (1993). In addition, the court’s rejection of the petitioner’s untimely request to stay oral argument—without prejudice after all parties have been provided with an opportunity to proffer their position—does not manifest bias in this context.

PERKINS, O'NEILL, SMUKLER, and FAUVER, JJ., superior court justices, specially assigned under RSA 490:3, concurred.


Howard J. Zibel,


Date of clerk’s notice of decision: April 25, 2001