Why A Judge With A Financial Interest In A Case Is Disqualified


Judges who have a direct, personal, substantial, pecuniary interest in the outcome of a case in which the state tries to take a person’s life, liberty or property are prohibited from hearing the case under the Due Process Clause of the Fourteenth Amendment to the US Constitution.  The question is not whether the best judges could act fairly despite the conflict but whether an average judge could  be influenced by the conflict.  If human nature might result in the financial conflict creating a risk of actual bias, the judge cannot act.  The US Supreme Court has specifically held that when a judge has a pecuniary interest in the outcome of a case, the probability of actual bias is too high to be constitutional. Withrow v. Larkin, 421 U.S. 35 (1975).

The reason why judges with financial interest in the outcome of a case are prohibited from hearing the case is to make court proceedings as fair as possible so that the people will have confidence in those proceedings.   To accomplish this purpose the proceedings must not only be fair, they must also appear to be fair.  It has never been accepted as fair to have a judge who has a financial interest in a case decides the case.  This is an ancient concept and reflects the maxim that “no man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” The Federalist No. 10, p 59 (J. Cooke ed. 1961) (J. Madison).

The only exception to this rule is the Rule of Necessity which provides that when all persons who could act as a judge in a case have the same conflict of interest, it is necessary for those judge to do so because the case must be decided.  If there is anyway, however, to have a judge without the conflict of interest hear the case, the judges with the conflict are prohibited from doing so.


About Dan Re

I am an attorney who has lived in Bend and practiced law since 1981. In educating myself about the Oregon Public Employees Retirement System (PERS), I was shocked at how the PERS laws were changed by the legislature, once legislators were allowed to join PERS in 1971, 26 years after PERS was first created. Those changes personally benefitted the legislators who made them at the direct financial expense of the people they were elected to represent. That is wrong and I intend to change it. In 2009, I started a non-profit 501(c)(4) corporation, In RE The People, Inc., for the purpose of informing concerned citizens of what happened regarding PERS and other issues of social and civic importance. I then created this blog to further that objective.
This entry was posted in Oregon PERS. Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s