The Hawaiian gazette., 1906-03-16


bench counseh for one of the parties
in the case, even where he has taken an
active part in the case and advised
upon the questions in issue.''
THREE OPINIONS FILED.
, SO reads a majority decision of the
Supreme Court, contained in leading
opinion by Justice Wilder and con
curing one by Justice Hartwell. A
dissenting opinion is rendered by Chief
Justice trear. The justice in this case
whose position was questioned is Mr..
Hartwell, and the decision is partly
based on the precedent set in the Love
case, in which Mr.. Wilder sat as a
justice although his former law firm
of Robertson L. Wilder was employed
in the case before he went on the
bench.
The present case is a writ of error in
the Motley will case-William Motley
and others against Cecil Brown and
others-to the Circuit Court of the
fourth circuit. Kinney, McClanahan &
Cooper and Ballou d Marx appeared
for plaintiffs, and Holmes & Stanley
for defendants. On motion to quash
the writ defendants in error claimed
that Justice Hartwell was disqualified
by reason of having acted as counsel
for some of the parties in, and taken
an active part in some previous stages
of. the cause. Plaintiffs in error
contended that there was no disqualifi-
cation either on the main case or on
the motion to guash.
OLD PRACTICE ABANDONED.
While the practice in that court has
been for a justice to refuse to sit in a
case where the slightest suggestion was
made as to his having formerly been of
counsel in the cause, the practice had
been "checked and disapproved" in
the recent case of Love VS.. Love to the
extent of holding that justice was
''not disqualified to sit in case by
reason Of having been counsel of record
as member of n partnership which
had been retained in the ease, he hav-
ing taken no AZ tive part in the case
nor advised upon the questions at is
sue Now, in the Motley case, the
question of disqualification of Justice
who had taken nm active part ana
given advice eame squarely up for de-
cision.
After discussing common and statute
law bearing on the question, Justice
Wilder says:
GAS we find there is no legal disqual-
ification, justice of this court, from a
sense of delicacy or personal feeling,
has no right to withdraw from sitting
in case, because, if there is no dis
qualification or other reason mentioned
in the statute, a circuit judge can not
be called in and the case can not be
heard, as the parties are entitled to a
hearing before a bench of three mem
bers''
Justice Hartwell, concurring at
length, after referring to the Love
case makes the following remarks, the
allusion to disqualification referring to
jurisdictions where such is made by
law:
BIAS AND PREJUDICE.
ait is for no other reason than to
avoid danger of favoritism, as a result
of bias from whatever cause, or of Civ
ing the impression of favor, that the
former relation of attorney and client
is regarded as a disqualification. But
bias or prejudice, although cause of
disqualification in many jurisdictions,
is not so at common law or in Hawaii.
1t may exist in many instances, as, for
example, in cases of intimate friends
or opponents, or in "A 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 favoritism, under
such circumstances, is greater for the
very reason that it is less conspicuous.
1t 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 disquai-
fies judge he is not permitted to sit
in the case although the parties may
waive the objection and request him to
do so. -
ANOMALY DISCUSSED.
Referring to the troublesome fact
that Hawaiian law forbids circuit
judges to sit as substitute justices in
cases wherein they have been counsel,
Justice Hartwell says:
"If any former official connection
with case disqualified justices of this
court it would be impossible to obtain
rehearings of the same ease presented
under any circumstances The reason
why the statute excludes substitute
judges who have been of counsel and
does not make the same requirement or
justices of this court may well be that
it was thought that the Legislature had
no power to add to the disqualification
made by the Organic Act or that, if
there were such power, it was unwise
to make a 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 rea-
tive by affinity or by consanguinity
within the third degree in interested
either as a plaintifi 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;
III Is commonly stated. ana no