Sowers v. Toliver , 150 N.C. App. 114 ( 2002 )

GREENE, Judge,

concurring.

I fully concur with the majority but write separately to further discuss a party’s right to an unbiased and unprejudiced trial judge.

Every party is entitled to an unbiased and unprejudiced trial judge. See N.C. Const, art. I, § 18 (guaranteeing that “justice shall be administered without favor”). Disqualification based on a trial judge’s bias or prejudice, however, may only result if it stems from an extrajudicial source. See Code of Judicial Conduct, Cannon 3C(1). Bias or prejudice developed by a trial judge acting in his official judicial capacity in regard to the case at issue does not support disqualification. See In re Evans, 411 A.2d 984, 995 (D.C. 1980) (to support disqualification, the bias or prejudice must derive from an extrajudicial source and result in an opinion on the merits based on something besides what the judge learned during the trial). In some instances, such bias or prejudice may require a new trial, but only if it influenced a jury. See Smithwick v. Frame, 62 N.C. App. 387, 395, 303 S.E.2d 217, 222 (1983) (“[t]he proscription against the expression of opinion by the trial judge does not attach in a trial without a jury”). Accordingly, in a non-jury case where the trial judge develops a bias or prejudice toward one party and where there is no evidence this bias or prejudice arose from any source outside the evidence and arguments presented in the case, the judgment entered by the trial court will be affirmed if it is otherwise properly entered.

In this case, the record reveals that any bias or prejudice the trial judge may have displayed arose as he reacted to the evidence presented and the events occurring during the course of the trial. Thus, there was no basis to disqualify the trial judge from deciding the case, and because there was no jury impaneled, there also exists no basis for ordering a new trial.