HOUSE DOCKET, NO. 716 FILED ON: 1/12/2009
HOUSE . . . . . . . . . . . . . . . No. 1476
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The Commonwealth of Massachusetts
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In the Year Two Thousand Nine
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An Act Relative to the Recusal of Judges..
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 1. Chapter 211b, § 11, is amended by adding the following new paragraphs:
Whenever a party to any proceeding makes and files a timely and
sufficient affidavit that the judge before whom the matter is pending has a
personal bias or prejudice either against him/her or in favor of any adverse
party, such judge shall proceed no further therein, but another judge shall
be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.
2. (a) Any justice, judge, or magistrate judge of the Commonwealth of Massachusetts shall disqualify himself/herself in any proceeding in which his/her impartiality might reasonably be questioned.
(b) He/she shall also disqualify himself/herself in the following circumstances:
Where he/she has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
Where in private practice he/she served as lawyer in the matter in controversy, or a lawyer with whom he/she previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
Where he/she has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
He knows that he, individually or as a fiduciary, or his spouse
or minor child residing in his/her 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 substantially affected by the outcome of the proceeding;
He/she or his/her spouse, or a person within the third degree of
relationship to either of them, 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.
A judge shall inform himself/herself about his/her personal and fiduciary financial interests, and make a reasonable effort to inform himself/herself about the personal financial interests of his/her spouse and minor children residing in his/her household.
For the purposes of this section the following words or phrases shall have the meaning indicated:
(1) “proceeding” includes pretrial, trial, appellate review, or other
stages of litigation;
(2) the degree of relationship is calculated according to the civil
law system;
(3) “fiduciary” includes such relationships as executor,
administrator, trustee, and guardian;
(4) “financial interest” means ownership of a legal or equitable
interest, however small, or a relationship as director, adviser, or
other active participant in the affairs of a party, except that:
(i) Ownership in a mutual or common investment fund that holds securities is not a “financial interest” in such securities unless the judge participates in the management of the fund;
(ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization;
(iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest;
(iv) Ownership of government securities is a “financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.
No justice, judge, or magistrate judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.