dissenting in part: I agree with the majority that the district court gave a proper permissive inference instruction and that Sawyer failed to prove that Judge McNally had a statutory obligation to recuse under the applicable statute, K.S.A. 20-311d. But I diverge from the majority’s decision when it continues what I consider to be the unsound practice of equating circumstances that raise a concern under the Kansas Code of Judicial Conduct, Supreme Court Rule 6.01B (2012 Kan. Ct. R. Annot. 713) or K.S.A. 20-311d with the far more “extreme” and “rare” circumstances in which the Due Process Clause requires recusal. See Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 887-88, 890, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009). Specifically, I depart from the majority’s conclusion that Judge McNally’s ambiguous statement regarding an unspecified “problem” that generated his re-cusal in a prior case permitted a presumption of constitutional bias in the present case. Instead, based on the limited facts presented to us, I would hold that this proceeding did not sink “beneath the ‘constitutional floor.’ ” See Caperton, 556 U.S. at 889.
Before discussing my specific area of disagreement, I first applaud the majority’s effort to clarify this court’s “muddlefdj” case-law on recusals and its delineation of the three independent bases for judicial recusal: (1) the Code of Judicial Conduct; (2) the statutory basis, K.S.A. 20-31 Id; and (3) the constitutional basis, the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
But while the majority eloquently articulates the three pathways to recusal, it then commits the same mistake previously made by this court when it elevates Judge McNally’s comment recognizing a “problem” to the level of a constitutional violation. Contrary to *915the majority’s conclusion, Judge McNally did not admit previous bias. Rather, he simply acknowledged that based on “past dealings” with Sawyer, he found it a “problem” to sit in judgment of Sawyer.
Further, the majority missteps when it places responsibility on Judge McNally to “[dispel] any worry about bias.” Historically, the onus is not on the judge to dispel concern about bias. Rather, courts presume judges act fairly and impartially, and litigants must present facts or circumstances indicating otherwise. See, e.g., Withrow v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975); In re Larson, 43 F.3d 410, 414 (8th Cir. 1994); State v. Allen, 322 Wis. 2d 372, 492, 778 N.W.2d 863 (2010) (Ziegler, J., concurring).
Significantly, the defendant failed to detail the “past dealings” and “past communication” that led Judge McNally to recuse in the prior case. Logically, some of the “past dealings” referred to by Judge McNally during the recusal hearing included Judge Mc-Nally’s prohibition on Sawyer filing pro se pleadings and his order requiring Sawyer to be transported with a gag in place. However, as the majority recognizes, these actions, while extreme, are not “inevitably unjustified.” Nor do they evidence obvious or actual bias. Similarly, the Court of Appeals’ admonition to Judge McNally in a prior case regarding his response to Sawyer’s outbursts during a sentencing hearing implicate a potential appearance of impropriety—i.e., a problem under the Code of Judicial Conduct, not under the Constitution. See State v. Sawyer, No. 101,062, 2009 WL 4639488, at *4 (Kan. App. 2009) (unpublished opinion) (citing Rule 601A, Canon 3B[4], [2005 Kan. Ct. R. Annot. 562]), rev. denied 290 Kan. 1102 (2010).
Although Judge McNally’s use of the term “problem” may have been inartful, I would not presume Judge McNally intended to admit bias. Instead, it seems likely the “problem” Judge McNally referred to was an appearance of impropriety requiring recusal under the Code of Judicial Conduct or an acknowledgement that, as discussed in K.S.A. 20-311d(c)(5), Sawyer previously had “cause to believe” that Judge McNally’s bias would prevent Sawyer from getting a fair trial.
In elevating Judge McNally’s unspecified “problem” to the level of a constitutional violation, the majority suggests the United States *916Supreme Court recognized in Caperton that “a mere heightened risk of actual bias could lead to unacceptable peril to due process.” Slip op. at 12. But contrary to the majority’s characterization, the Caperton Court recognized that only an “extreme” risk of bias could offend the Due Process Clause. See Caperton, 556 U.S. at 887 (noting that in past cases the Supreme Court “was careful to distinguish the extreme facts of the case before it from those interests that would not rise to a constitutional level”).
This crucial distinction is best illustrated by comparing the facts of this case with circumstances which have been held not to create an impermissibly high probability of actual bias. See, e.g., Davis v. Jones, 506 F.3d 1325, 1336-37 (11th Cir. 2007) (concluding due process not implicated when judge and prosecuting attorney were brothers); Reichert v. State ex rel. McCulloch, 365 Mont. 92, 110-11, 278 P.3d 455 (2012) (determining due process did not require nonretiring justices to recuse when court considered constitutionality of change in judicial election); Ivey v. Eighth Judicial Dist. Court, 299 P.3d 354, 357-58 (Nev. 2013) (holding trial judge not required to recuse under the Due Process Clause when one party to pending divorce contributed single largest individual sum to judge’s reelection campaign). As these cases evidence, tire constitutional floor is indeed a low one. The majority raises the constitutional floor well above that contemplated in Caperton by interpreting Judge McNally’s ambiguous comment as evidence of previous bias and by requiring Judge McNally to satisfy this court that any concern of bias has dissipated.
Finally, I wish to clarify that although I do not believe a constitutional violation has been established here, I do not agree with the Court of Appeals’ suggestion that a trial judge’s duty to recuse may vary based on whether a case is tried to the jury or the judge. As the majority here recognizes, the trial judge must make many rulings affecting the defendant’s ability to obtain a fair trial, including sentencing the defendant, regardless of whether the case is tried to the jury or to the judge.
In conclusion, while I share the majority’s concern with ensuring Sawyer received a trial from a fair and impartial judge, I disagree with the majority’s continued blurring of the lines between a *917judge’s ethical obligation to recuse, a judge’s statutory requirement to recuse, and a judge’s compulsion under the Due Process Clause to recuse. I would find that this case does not present the rare and extraordinary case in which the Due Process Clause requires re-cusal.
Biles, J., joins in the foregoing dissent.