2004-730, STATE OF NH v. WALTER ELLIS

and that the judge had not had any contact with the defendant. The judge judge noted that Blaisdell was not a party to the action now before the court did represent you. That was a long time ago." After further discussion, the response, the trial judge first stated: "I do recall – now that you mention it, I that the judge had represented Blaisdell in a civil matter in the 1970's. In on the merits, Blaisdell asked the trial judge to recuse himse lf on the grounds representative. On the day of trial, prior to the commencement of the hearing The defendant was represented at trial by George Blaisdell, a non - lawyer

motion for recusal. We affirm. appeal, he argues that the Trial Court (Cappiello, J.) erred by not gra nting a District Court of criminal trespassing. RSA 635:2 (1996) (amended 2005). On DUGGAN, J. The defendant, Walter Ellis, was convicted in Rochester

Walter Ellis, by brief, pro se.

general, on the memorandum of law), for the Stat e. Kelly A. Ayotte, attorney general (Susan P. McGinnis, assistant attorney

No. 2004 - 730 Rochester Distri ct Court

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

proceeding in whic h the judge's impartiality might reasonably be questioned Judicial Conduct, however, also requires disqualification of a judge in a cert. denied, 538 U.S. 1014 ( p. 2 2003); Sup. Ct. R. 38, Canon 3E(1). The Code of disqualification applies here. See State v. Bader, 148 N.H. 265, 270 (2002), Turning to the second issue, we note that no per se rule of

alleged failure to disclose. purpose of requiring disclosure was satisfied, and we find no error in the both parties had the opportunity to address the issue. Thus, the primary Blaisdell's disclosure at the commencement of the proc eeding ensured that deprived of the opportunity to argue in favor of recusal was not present. disqualification, we note that the danger that either party would have been that a reasonable party or lawyer might consider relevant to the question of court that occurred more than twenty - four years earlier is in fact information party's representative in a civil matter unrelated to the proceedings before the require d or appropriate. Here, even assuming that prior representation of a arguments or authority that may persuade the judge that recusal is in fact parties with the opportunity to seek recusal, allowing them to present City of Rochester, 135 N.H. 589, 593 (199 p. 2 2). Such disclosure provides the disqualification. See Sup. Ct. R. 38, Canon 3E(1) c ommentary; cf. Blaisdell v. question of disqualification, even if the judge believes there is no real basis for judge believes the parties or their lawyers might consider relevant to the upon by the judge. We agree that a judge should disclose information that the commencement of the proceedings by Blaisdell, and was considered and ruled Furthermore, the prior representation was disclosed at the

for disqualification). has duty to disq ualify himself "as soon as he is aware that the grounds exist" McCuin v. Texas Power & Light Co., 714 F. p. 2 2d 1255, 1260 (5th Cir. 1983) (judge that he neither recalled, nor should have recalled, until reminded of it. Cf. r ecalling it. Nor can we fault the judge for not disclosing a prior representation involved a single civil matter, we cannot fault the judge for not immediately representation occurred at least twenty - four years earlier and apparently McLeod Partnership, 725 So. 2d 271, 274 (Ala. 1998). Given that the throughout his career prior to becoming a judge. Cf. Ex parte Kenneth D. judge would immediately recall every client whom he may have represented attention by Blaisdell. Nor would a reasonable, objective observer expect that a the judge did not recall the prior representation until it was brought to his himself. With respect to the first issue, it is obvious from the transcript that disclosing the prior relationship with Blaisdell and by refusing to recuse On appeal, the defendant argues that the judge erred by not himself

should recuse himself from the case. concluded that he did not have a conflict, and that he saw no reason why he p. 3 3

BRODERICK, C.J.