The Myth of the Biased Judge

A few days ago, when writing about some of the things clients should do or bear in mind when working with their divorce or custody attorney, I talked about clients' often erroneous perception that the judge in their case is biased.  I mentioned that, in my experience, few judges suffer from any kind of consistent bias in favor of moms or dads or husbands or wives.  I am also strongly of the view that the overwhelming majority of judges are strictly unbiased in every conceivable respect.

The generally high ethics of our judges was driven home to me today when I received an order from a local Superior Court Judge in which he—on his own motion—decided to recuse himself from a case.  In that case, the mother is seeking to move out of state with the children so that she can attend a four-year university (which we don’t have in Mohave County, Arizona).  Under Arizona law, the father has a right to object to the move and to have the Court determine whether allowing the relocation is in the best interest of the children.  Here, the father did so object (I represent the mother); accordingly, the Court needs to determine whether the mother will be allowed to move out of town with the children.

No one had voiced the slightest concern to this judge, but he simply decided that he should not continue with the case.  I thought that the reasons he gave in his order might help the folks who read this blog understand the lengths to which judges go to be completely impartial, so I have reprinted them below.  Although the Order is a public document, out of respect for the judge, I have not included his name, and have deleted certain other information which might allow identification of the parties:

“The Court set this matter for hearing on the Petition to Prevent Relocation and then questioned itself as to the propriety of hearing this matter. For the past couple of years the Court has witnessed the parent’s interaction with the children on numerous instances, and in most particular, how well the Petitioner has conducted himself with the children, primarily at [certain sports events attended by both the judge and the parents]. In the relocation case, the Court will be called upon to make findings under both A.R.S. §§ 25-403 and 408. The Court has come to the conclusion that it would inevitably have to draw upon its personal observations with the parents of the children, and in particular, that of the Petitioner.

Therefore, in order to avoid the appearance of impropriety, the Court recuses itself in this matter.”

My files are full of orders of this kind, where a judge recuses himself because when he was a private attorney he represented the parents of one of the parties, or because the judge attends the same church as a party, or because the judge has some distant social connection with the parties, and so forth.  I once had a judge recuse himself because an expert witness—not one of the parties but simply one of the witnesses—was someone with whom the judge sometimes plays golf. 

I’m sure that there are biased trial court judges out there somewhere.  But, it has been a long time since I have tried a case in front of one. Most people who think they see evidence of bias on the part of a judge do so from their own biased perspective, or because they don't understand the law that the judge must apply to their case.