THE SENATE	S.B. NO.	1073
THIRTY-SECOND LEGISLATURE, 2023
STATE OF HAWAII

A BILL FOR AN ACT

RELATING TO THE JUDICIARY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that the fair, independent, and impartial administration of justice is a long‑standing value of American jurisprudence. In Hawaii, existing law prohibits judges to hear any case in which they have a disqualifying relationship, pecuniary interest, previous judgment, or other perceived bias or prejudice. The legislature notes that existing law allows a disqualification of a judge to occur in two ways -- mandatory disqualification upon filing of an affidavit by a party to the suit, action, or proceeding, stating that the judge has a disqualifying personal bias or prejudice; and a voluntary recusal by the judge through the judge's submittal of a certificate deeming oneself unable to preside with absolute impartiality in the pending suit or action.

The legislature further finds that at the appellate level, authorizing parties to a suit, action, or proceeding, who believe that a judge or justice presiding over their case on appeal has a disqualifying conflict of interest, to file a motion for a hearing on the judge's or justice's possible conflict of interest, would facilitate a valuable colloquy regarding impartiality, allow the judge or justice the opportunity to rebut any allegation of a disqualifying conflict of interest, and promote transparency within the State's judiciary.

Accordingly, the purpose of this Act is to:

(1) Clarify that the disqualification requirements for judges also apply to justices;

(2) Establish a process by which a party before an appellate court in the State, who believes that the judge or justice presiding over their case may have a disqualifying conflict of interest, may move for a hearing on possible conflict of interest; and

(3) Prohibit the appellate court judge or justice who is subject to the motion to hear or rule on the motion but allow them to file a response or voluntarily recuse themselves from presiding over the pending action or proceeding.

SECTION 2. Section 601-7, Hawaii Revised Statutes, is amended to read as follows:

"§601-7 Disqualification [of judge;] and recusal; judges and justices; disqualifying relationship, pecuniary interest, previous judgment, and bias or prejudice. (a) No person shall sit as a judge in any case in which:

(1) The judge's relative by affinity or consanguinity within the third degree is counsel, or interested either as a plaintiff or defendant, or in the issue of which the judge has, either directly or through [such] the relative, a more than de minimis pecuniary interest; or

(2) The judge has been of counsel or on an appeal from any decision or judgment rendered by the judge;

provided that no interests held by mutual or common funds, the investment or divestment of which are not subject to the direction of the judge, shall be considered pecuniary interests for purposes of this section; [and] provided further that after full disclosure on the record, parties may waive disqualification due to any pecuniary interest. As used in the subsection, "judge" includes justice.

(b) Whenever a party to any suit, action, or proceeding, civil or criminal, [makes and] files an affidavit that the judge before whom the action or proceeding is to be tried or heard has a personal bias or prejudice either against the party or in favor of any opposite party to the suit, the judge shall be disqualified from proceeding therein. Every [such] affidavit shall state the facts and the reasons for the affiant party's belief that bias or prejudice exists and shall be filed before the trial or any hearing [of] on the action or proceeding, or good cause shall be shown for the failure to file [it] the affidavit within [such] that time. No party shall be entitled in any case to file more than one affidavit[;], and no affidavit shall be filed unless accompanied by a certificate of the affiant party's counsel of record declaring that the affidavit is made in good faith. Any judge may [disqualify oneself] recuse themself by filing with the clerk of the court [of] for which the judge [is a judge] presides, a certificate declaring that the judge [deems oneself] is unable for any reason to preside with absolute impartiality in the pending suit or action.

(c) A party to any suit, action, or proceeding, civil or criminal, in any appellate court in the State may file a motion for a hearing on possible conflict of interest when the party believes that any judge before whom the pending suit, action, or proceeding is to be heard may have a disqualifying conflict of interest resulting in a personal bias or prejudice either against the party or in favor of any opposite party to the case. The motion shall state the facts and reasons for the moving party's belief that bias or prejudice exists and shall be filed before the hearing on the action or proceeding, or good cause shall be shown for the failure to file the motion within that time. No party shall be entitled in any case to file more than one motion for a hearing on possible conflict of interest against a particular judge, and no motion shall be filed unless accompanied by a certificate of the moving party's counsel of record declaring that the motion is made in good faith. The remaining judges on the panel or judge presiding in the court of appeal in which the pending suit, action, or proceeding is to be heard shall hear and rule on the motion filed pursuant to this subsection. The judge who is the subject of the motion shall be disqualified from hearing or ruling on the motion, but shall have the opportunity to:

(1) File a response to the motion; or

(2) Recuse themself by filing with the clerk of the court

for which the judge presides, a certificate declaring that the judge is unable for any reason to preside with absolute impartiality in the pending suit, action, or proceeding.

As used in this subsection, "judge" includes justice."

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:

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Report Title:

Appellate Courts; Conflicts of Interest; Judges and Justices; Disqualification and Recusal

Description:

Clarifies that the disqualification requirements for judges also apply to justices. Establishes a process by which a party before an appellate court in the State, who believes that the judge or justice presiding over their case may have a disqualifying conflict of interest, may move for a hearing on possible conflict of interest. Prohibits the appellate court judge or justice who is subject to the motion to hear or rule on the motion but allows them to file a response or voluntarily recuse themselves from presiding over the pending action or proceeding.

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