Schwartz and Battini

A “judge shall disqualify himself or herself in any proceedings in which *** [t]he judge has a personal bias or prejudice concerning a party***.” Oregon Code of Judicial Conduct, Rule 3.10(A)(1). “The rule governs both actual bias and perceived bias.” See In re Schneck, 318 Or 402, 407, 970 P2d 185 (1994).

Father appealed a supplemental judgment that modified his parenting time and awarded Mother attorney fees. On appeal, Father argued that the judge abused her discretion when she proceeded to hear Mother’s motion, after having concluded that she could not be fair to the Father, and had recused herself.  In response, Mother argued that the judge did not plainly err by hearing the matter because the judge’s ultimate ruling was inevitable. A “judge shall disqualify himself or herself in any proceedings in which *** [t]he judge has a personal bias or prejudice concerning a party***.” Oregon Code of Judicial Conduct, Rule 3.10(A)(1). “The rule governs both actual bias and perceived bias.” See In re Schneck, 318 Or 402, 407, 970 P2d 185 (1994). The Court found that a reasonable person would view the judge’s comments at the prior hearing as conveying that she had closed her mind to Father’s case, regardless of whether Father testified further at the subsequent hearing. Therefore, the Court held that because the trial court misapprehended the significance of its statement at the prior hearing in which the judge recused herself, its decision to proceed with the subsequent hearing was premised on this misapprehension and therefore constituted an abuse of discretion. Reversed and remanded.