Summerlin v. Stewart, 267 F.3d 926 (9th
It is difficult to gainsay the importance of enforcing with efficient
and sensible sanctions the core due process guarantees in our Constitution.
To look the other way in the face of certain serious constitutional
deficiencies is to render those guarantees " `a form of words,'
valueless and undeserving of mention in a perpetual charter of inestimable
human liberties." Mapp v. Ohio, 367 U.S. 643 (1961). Frequently,
we do use the doctrine of harmless error with respect to a wide
spectrum of constitutional failures, but not such a fault involving
the performance of a judge who was demonstrably not impartial. See
Arizona v. Fulminante, 499 U.S. 279, 306-311 (1991). The Supreme
Court has labeled this kind of systemic defect "structural error"
and rendered it categorically immune from harmless error analysis.
Id. at 309-10; Tumey v. Ohio, 273 U.S. 510 (1927). The reason
for regarding this level of constitutional failure as "structural"
is obvious: impartiality is the sine qua non of judging. Bias or
favoritism is utterly irreconcilable with and necessarily perverts
the judicial function. The rule of law which provides the framework
for our system of justice is thwarted by a judge marching to an
[Summerlin v. Stewart, 267 F.3d 926 (9th Cir. 10/12/2001)]
Code of Conduct for U.S.
Canon 3: A Judge Should Perform
the Duties of the Office Impartially and Diligently
(1) A judge shall disqualify himself or herself
in a proceeding in which the judge's impartiality might reasonably
be questioned, including but not limited to instances in which:
(a) the judge has a personal bias or prejudice
concerning a party, or personal knowledge of disputed evidentiary
facts concerning the proceeding;
(b) the judge served as lawyer in the matter in
controversy, or a lawyer with whom the judge previously practiced
law served during such association as a lawyer concerning the matter,
or the judge or such lawyer has been a material witness;
(c) the judge knows that the judge, individually
or as a fiduciary, or the judge's spouse or minor child residing
in the judge's household, has a financial interest in the subject
matter in controversy or in a party to the proceeding, or any other
interest that could be affected substantially by the outcome of
(d) the judge or the judge's spouse, or a person
related to either within the third degree of relationship, or the
spouse of such a person:
(i) is a party to the proceeding, or an officer,
director, or trustee of a party;
(ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have an interest
that could be substantially affected by the outcome of the proceeding;
(iv) is to the judge's knowledge likely to be a
material witness in the proceeding.
(e) the judge has served in governmental employment
and in such capacity participated as counsel, advisor, or material
witness concerning the proceeding or has expressed an opinion concerning
the merits of the particular case in controversy.
(2) A judge should keep informed about the judge's
personal and fiduciary financial interests, and make a reasonable
effort to keep informed about the personal financial interests of
the judge's spouse and minor children residing in the judge's household.
Summerlin v. Stewart, 267 F.3d 926 (9th Cir.
“Bias or favoritism is
utterly irreconcilable with and necessarily perverts the judicial
function. The rule of law which provides the framework for our system
of justice is thwarted by a judge marching to an unauthorized drummer
[the IRS in this case, if he is a "taxpayer"].”
[Summerlin v. Stewart,
267 F.3d 926 (9th Cir. 10/12/2001)]
ABA Code of Judicial Conduct, Canon 3C(1)(a)
"A judge should disqualify himself . . . where
he has a personal bias or prejudice concerning a party"
[ABA Code of Judicial Conduct, Canon 3C(1)(a) (1980)]
“. . .it certainly violates the Fourteenth Amendment
. . . to subject [a person's] liberty or [475 U.S. 822] property
to the judgment of a court the judge of which has a direct, personal,
substantial, pecuniary interest in reaching a conclusion against
him in his case.”
[Tumey v. Ohio, 273 U.S. 510 (1927)]
More than 30 years ago Justice Black, speaking
for the Court, reached a similar conclusion and recognized that,
under the Due Process Clause, no judge "can be a judge
in his own case [or be] permitted to try cases where he has an interest
in the outcome." In re Murchison, 349 U.S. 133, 136
(1955). He went on to acknowledge that what degree or kind of interest
is sufficient to disqualify a judge from sitting "cannot be defined
with precision." Ibid. Nonetheless, a reasonable formulation of
the issue is whether the situation is one
"which would offer a possible temptation to the average .
. . judge to . . . lead him not to hold the balance nice, clear
Ward v. Village of Monroeville, supra, at 60.
Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986)]