How Do I Prove Bias on the Part of the Judge Who Dismissed a Party in My Case?

Full Question:

I want a new trial for a malpractice case, because of political prejudice occurred between the judge and Dr. and he was dismissed after filing a motion.
01/05/2010   |   Category: Courts   |   State: Ohio   |   #20288

Answer:

In some cases, where there is a conflict of interest, the judge may be required to recuse himself from the case. Typically, to show bias on the part of a judge, a relationship between the judge and a party to the case, communications with the judge outside the courtroom, or a financial interest involving the judge is shown.

Please see the following from the Ohio Code of Judicial Conduct:

RULE 2.4 External Influences on Judicial Conduct

(A) A judge shall not be swayed by public clamor or fear of criticism.

(B) A judge shall not permit family, social, political, financial, or
other interests or relationships to influence the judge's judicial
conduct or judgment.

(C) A judge shall not convey or permit others to convey the impression
that any person or organization is in a position to influence the judge.

RULE 2.9 Ex Parte Contacts and Communications with Others

(A) A judge shall not initiate, receive, permit, or consider ex parte
communications, except as follows:

(1) When circumstances require it, an ex parte communication for
scheduling, administrative, or emergency purposes, that does not address
substantive matters or issues on the merits, is permitted, provided the
judge reasonably believes that no party will gain a procedural,
substantive, or tactical advantage as a result of the ex parte
communication;

(2) A judge may obtain the advice of a disinterested expert on the law
applicable to a proceeding before the judge, if the judge gives notice to
the parties of the person consulted and the subject-matter of the advice
solicited, and affords the parties a reasonable opportunity to object or
respond to the advice received;

(3) A judge may consult with court staff and court officials whose
functions are to aid the judge in carrying out the judge's adjudicative
responsibilities, or with other judges, provided the judge makes
reasonable efforts to avoid receiving factual information that is not
part of the record and does not abrogate the responsibility personally to
decide the matter;

(4) A judge, with the consent of the parties, may confer separately
with the parties and their lawyers in an effort to settle matters pending
before the judge;

(5) A judge may initiate, receive, permit, or consider an ex parte
communication when expressly authorized by law to do so;

(6) A judge may initiate, receive, permit, or consider an ex parte
communication when administering a specialized docket, provided the judge
reasonably believes that no party will gain a procedural, substantive, or
tactical advantage while in the specialized docket program as a result of
the ex parte communication.

(B) If a judge receives an unauthorized ex parte communication bearing
upon the substance of a matter, the judge shall make provision promptly to
notify the parties of the substance of the communication and provide the
parties with an opportunity to respond.

(C) A judge shall not investigate facts in a matter independently, and
shall consider only the evidence presented and any facts that may
properly be judicially noticed.

(D) A judge shall make reasonable efforts, including providing
appropriate supervision, to ensure that this rule is not violated by court
staff, court officials, and others subject to the judge's direction and
control.

RULE 2.11 Disqualification

(A) A judge shall disqualify himself or herself in any proceeding in
which the judge's impartiality might reasonably be questioned, including
but not limited to the following circumstances:

(1) The judge has a personal bias or prejudice concerning a party or a
party's lawyer, or personal knowledge of facts that are in dispute in the
proceeding.

(2) The judge knows that the judge, the judge's spouse or domestic
partner, or a person within the third degree of relationship to either of
them, or the spouse or domestic partner of such a person is any of the
following:

(a) A party to the proceeding, or an officer, director, general partner,
managing member, or trustee of a party;

(b) Acting as a lawyer in the proceeding;

(c) Has more than a de minimis interest that could be substantially
affected by the proceeding;

(d) Likely to be a material witness in the proceeding.

(3) The judge knows that he or she, individually or as a fiduciary, or
the judge's spouse, domestic partner, parent, or child, or any other
member of the judge's family residing in the judge's household, has an
economic interest in the subject matter in controversy or in a party to
the proceeding.

(4) [RESERVED]

(5) The judge, while a judge or a judicial candidate, has made a public
statement, other than in a court proceeding, judicial decision, or
opinion, that commits or appears to commit the judge to reach a particular
result or rule in a particular way in the proceeding or controversy.

(6) The judge knows that the judge's spouse or domestic partner, or a
person within the third degree of relationship to either of them, or the
spouse or domestic partner of such a person has acted as a judge in the
proceeding.

(7) The judge meets any of the following criteria:

(a) The judge served as a lawyer in the matter in controversy or was
associated with a lawyer who participated substantially as a lawyer in the
matter during such association;

(b) The judge served in governmental employment, and in such capacity
participated personally and substantially as a lawyer or public official
concerning the particular matter, or has publicly expressed in such
capacity an opinion concerning the merits of the particular matter in
controversy;

(c) The judge was a material witness concerning the matter;

(d) The judge previously presided as a judge over the matter in another
court.

(B) A judge shall keep informed about the judge's personal and
fiduciary economic interests, and make a reasonable effort to keep
informed about the personal economic interests of the judge's spouse or
domestic partner and minor children residing in the judge's household.

(C) A judge subject to disqualification under this rule, other than for
personal bias or prejudice under division (A)(1) of this rule, may
disclose on the record the basis of the judge's disqualification and may
ask the parties and their lawyers to consider, outside the presence of
the judge and court personnel, whether to waive disqualification. If,
following the disclosure, the parties and lawyers agree, without
participation by the judge or court personnel, that the judge should not
be disqualified, the judge may participate in the proceeding. The
agreement shall be incorporated into the record of the proceeding.

For further discussion, please see:

http://jec.unm.edu/resources/judicial_handbook/ethics/ethics06.htm
http://www.projectposner.org/case/2002/286F3d406