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COSTELLO v. MCFADDEN9/18/1996
ul death malpractice action was pending against the plaintiffs' chief medical witness. The wrongful death malpractice action had been brought by the estate of the trial judge's deceased brother. The trial judge had discussed the case with the administrator of the estate. Following the adverse verdict, the plaintiffs in Forsmark filed a motion to vacate the judgment under rule 252(b). They alleged that the judge's failure to disqualify himself constituted an irregularity that required the judgment to be vacated and a new trial granted. Another judge heard the motion and ruled against the plaintiffs.
On appeal the plaintiffs relied on Iowa Code of Judicial Conduct Canon 3 C(1) (currently at Iowa Code of Judicial Conduct Canon 3 D(1)(a) (1996)). That canon requires judges to disqualify themselves from proceedings in which their impartiality might be questioned. The canon gives two examples of proper grounds for disqualification: (1) where the judge "has a personal bias or prejudice concerning a party," or (2) where the judge has "personal knowledge of disputed evidentiary facts." Iowa Code of Judicial Conduct Canon 3 C(1). We said in Forsmark that a "judge's impartiality is basic to the due and orderly conducting of litigation. Failing to follow required procedures to determine a disqualification issue is thus an irregularity within the meaning of rule 252(b)." Forsmark, 349 N.W.2d at 767 (emphasis added).
The "required procedures" referred to in Forsmark were illustrated in this passage from the case:
Briefly stated, Canon 3 C(1)(a), is basically a broad standard by which a judge should sua sponte determine the matter of self-recusation. Stated otherwise it, followed by specifics (interest and relationship), stands as a guiding precept upon which every judge, by an objective in-depth [553 NW2d Page 611]
search of his or her own conscience, must decide whether a fair trial dictates he or she should make way for another judge to preside in a given justiciable controversy be it civil, criminal or otherwise.
Id. (quoting State v. Smith, 242 N.W.2d 320, 323-24 (Iowa 1976)).
The trial judge in Forsmark knew, before trial started, the identity of the plaintiffs' chief medical witness. We held this knowledge triggered the judge's duty to disclose his relationship with his deceased brother's estate. Forsmark, 349 N.W.2d at 767-68. We concluded that "the judge's failure to disclose the information deprived the plaintiffs of the opportunity to make a timely request that he disqualify himself . . . `his impartiality might reasonably be questioned.'" Id. (quoting Canon 3 C(1)). This failure to disclose and to follow the recusal determination procedure "constituted an irregularity in the obtaining of the judgment within the meaning of rule 252(b)." Id.
Other states have rules similar to 252(b). Their case law defines irregularity like we do. The relief is also the same: vacation of the judgment. The cases illustrate in various contexts how an irregularity may arise. See, e.g., White Oak Coal Co. v. Beck, 176 Ill. App. 86, 90 (1912) (irregularity is ground for vacating judgment; irregular judgment defined as "not entered in accordance with the practice and course of proceeding where it was rendered"; irregularity occurred because judgment was entered against garnishee without fixing trial date as required by statute; garnishee had appeared and answered); Becker v. Roothe, 184 Kan. 830, 837-39, 339 P.2d 292, 298-300 (1959) (irregularity for vacating judgment defined "as the failure to observe that particular course of proceeding which, conformable with the practice of the court, ought to have been observed in the case"; irregularity consisted
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