The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1906-03-16


disqualification in many jurisdictions,
is not so at common law or in Hawaii.
1t NAV exist in many instances, as, for
example, in eases of intimate friends
or opponents, or in case the issue of
which as precedent would affect their
interests or those of the judge himself,
although not in pending or impending
cases. Danger of fayoritism, under
such circumstances, is greater for the
very reason that it is less conspicuous.
It is true also that it is not so much
conscious bias or prejudice as uncon-
scious cerebration, which the judge
himself does not recognize, that may
affect his impartiality. 1t is upon
these considerations that when the re-
lation of attorney and client disquali-
fies a Judge he is not permitted to sit
in the ease although the parties may
waive the objection and request him to
do So.
ANOMALY DISCUSSED.
Referring to the troublesome fact
Judges to sit as substitute justices in
cases wherein they have been counsel,
Justice Hartwell says:
with case disqualified justices of this
court it would be impossible to obtain
rehearings of the same case presented
under any circumstances. The reason
why the statute excludes substitute
judges who have been of counsel and
does not make the same requirement OF
justices of this court may well be that
it was thought that the Legislature had
4 ~ iH.a
made by the Organic Act or that, if
there were such power, it was unwise
to make rigid rule applying to them.
Whatever the reason, however, the dis
qualification is not extended beyond
circuit Judges
The provision of the Organic Act to
which the majority of the court binds
it's decision is this:
''That no person shall sit as a judge
or juror in any case in which his rela-
tive by affinity or by consequently
within the third degree is interested
either as a plaintiff or defendant or in
the issue of which the said judge or
juror may have, either directly or
through such relative, any pecuniary
interest.
THE DISSENTING OPINION.
Chief Justice Frear, dissenting,
says:
TT is commonly stated, and no
doubt correctly, that having been of
counsel was not an absolute disqual-
ification at common law, although the
cases In support of this statement are
comparatively few in number and as a
rule of an unsatisfactory nature. But
= ic hal in
land and America, that it is extremely
desirable to avoid not only the evil of
bias and prejudice on the part of a
judge by reason of his having been
of counsel, but also the appearance OF
such evil, and that judge who has
been of counsel should as matter of
propriety at least decline to sit ex
cept in a case of necessity, as for in
stance, when the court consists OF on
ly one judge and there is no provi-
sion for special or substitute judge.
This probably accounts for the pau
city of decisions on the question, for
as fact judges have generally de-
clined to sit when they have been of
counsel. Indeed such has been the
concensus of opinion as to the inpro-
priety of judge sitting in such case
that, to quote from II Am. & Eng.
Enc. of Law, I'd Ed, 739, AT the pres
ent time il is usually
if not universally provided in the con-
stitutions or statutes of the different
states that one who has been of coun-
sci in the case may not act as judge"
THE REASONABLE CONSTITUTE
TION.
On the seeming discrimination be-
civ nd ,,,,ti
judges Chief Justice Frear has this to
say:
There is greater reason here than
flied by reason of having been of coun-
sci because the statute, if it is valid,
leprives the members of the court of
the power and duty, which is always
recognized in connection with the
common law rule, to decline as a mat
ter of propriety to sit except in rare
cases of necessity. The statute makes
1t the duty of a member of this court
to sit in all cases in which he is not
absolutely disqualified or absent, for
It provides that parties shall be enti-
lied TO hearing before all the justices,
and may not be compelled to go to
trial before less than the full number
thereof, with the proviso that in case
Of the disqualification or absence of
any of the justices in any particular
case his place may be filled by a cir
cult judge; and it would not be COM
petent FOR the legislature to authorize
4 special or substitute judge to take
the place of a justice of the supreme
court except in a case of disqualifica-
lion or absence. See Org. Act, Sec.
g. This statute, moreover seems to |
recognize that having been of counsel |
IS a disqualification, for it provides |
mat the circuit judge who fills the |
place of disqualified or absent su-
oreme court justice shall be one who |
las had no connection with the case
rs counsel. It might be contended, |
rom the fact that this is specifically |
mentioned in connection with substi- |
-ute judges, that it was supposed or |
intended not to be the law in regard |
20 regular members of the court, but /
d1fferent view of special provisions |