In spite of my agreement with nearly all of the thorough analysis and conclusions reached by the majority, I would find that Moyer has asserted a tenable claim of presumed prejudice where the probability of bias or prejudice is too high to be constitutionally tolerable. I believe that such an intolerably high probability of prejudice exists in a criminal case where the presiding judge's son was a member of the law enforcement team that arrested the defendant, is identified in various police reports that give rise to the prosecution, and then is subsequently listed as an endorsed material witness in the State's amended complaint in the case.
The majority correctly has recognized that
"Kansas law provides at least three possible bases for litigants to seek recusal of a trial judge: the Kansas Code of Judicial Conduct, Supreme Court Rule 6.01(b), Canon 2, Rule 2.2 (2013 Kan. Ct. R. Annot. 735); K.S.A. 20-311d(c) ; and the Due Process Clause of the Fourteenth Amendment to the United States Constitution." State v. Hurd , 298 Kan. 555, 568, 316 P.3d 696 (2013) (citing State v. Sawyer , 297 Kan. 902, 905-06, 305 P.3d 608 [ (2013) ] ).
I would find that all three bases were met requiring Judge Showalter to recuse from this case.
K.S.A. 20-311d(a) provides a statutory procedure for a party or a party's attorney to move for a change of judge based on the belief "that the judge to whom an action is assigned cannot afford that party a fair trial in the action." Before the trial, the district *101court held a hearing on Moyer's motion to recuse. Defense counsel argued that Officer Showalter's involvement in the arrest and status as a witness in the case "would give an impression to the jury of favoritism or more significant weight" to Officer Showalter's testimony. In response, the State informed the court that it did not intend to call Officer Showalter in its case-in-chief and, therefore, **386the officer would only be called if the defense thought his testimony was necessary, which the State did not anticipate. The judge apparently realized the conflict and formally struck Officer Showalter as a witness and denied Moyer's motion. At a later pretrial hearing, defense counsel requested redaction of Officer Showalter's name from trial documents and that Officer Showalter "simply be referred to as the other deputy" during testimony. The prosecutor asked the court to overrule the motion and pointed out that counsel's earlier motion to recuse was improper as to form because the defendant did not file an affidavit under seal and give the motion to the chief judge. Nevertheless, Judge Showalter granted the motion, stating, "This is a molehill in which we have a mountain of evidence and under the circumstances, in an abundance of caution, I see no substantial problem for the State to simply redact or erase Officer Showalter's involvement in this case."
K.S.A. 20-311d states that "a party must first file a motion for change of judge; if that motion is denied, then the party must immediately file a legally sufficient affidavit alleging grounds set forth in the statute." Sawyer , 297 Kan. at 908, 305 P.3d 608. While Moyer and his counsel did not comply with the second step by failing to file an affidavit once the initial motion was denied, the judge's actions of removing his son as an endorsed witness and then later ordering redaction of his son's name from various pieces of evidence acknowledge the inherent conflict that arose under the facts presented here. The judge's focus on the evidentiary impact on the jury is not the sole basis of the conflict. In fact, it should have become self-evident that it was the judge's presence in the case-not his son's-that necessitated the precautionary actions taken. Typically, redaction is the result when inadmissible information is contained in otherwise admissible evidence, it is not necessitated by a conflict of interest of the presiding judge. At this juncture, the judge at a minimum should have questioned his continued presence and addressed whether his son's involvement in the prosecution of the case impacted Moyer's ability to receive a fair trial in light of K.S.A. 20-311d. This is especially true since the State had just brought to the court's attention the requirements of the statute. It should have been patently obvious that simply removing his son's name from **387the endorsed witness list in the complaint and then erasing his involvement from among the information before the jury, i.e. , the evidence in the case, did not resolve the glaring lapse regarding the ethical obligation that arises under our code of judicial conduct. A duty to recuse existed under these circumstances.
Kansas Supreme Court Rule 601B, Canon 2 (2014 Kan. Ct. R. Annot. 761), states: "A judge shall perform the duties of judicial office impartially, competently, and diligently." Rule 2.11(A) of this Canon addresses disqualification: "A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned." 2014 Kan. Ct. R. Annot. 767. Rule 2.11(A)(2)(c) and (d) requires disqualification under the following specific circumstances:
"(2) The judge knows that the judge, the judge's spouse or domestic partner , or a person with the third degree of relationship to either of them ... is:
....
"(c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or
"(d) likely to be a material witness in the proceeding." (Emphasis added.) 2014 Kan. Ct. R. Annot. 767-68.
A judge's obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed. Rule 2.11, comment 2. (2014 Kan. Ct. R. Annot. 769).
More than a de minimis interest can be presumed under these circumstances. The Code's terminology section states that " '[d]e *102minimis,' in the context of interests pertaining to disqualification of a judge, means an insignificant interest that could not raise a reasonable question regarding the judge's impartiality." Rule 601B (2014 Kan. Ct. R. Annot. 753). Officer Showalter's interest is certainly more than de minimis in that the trial and the verdict serve to validate the appropriateness of his involvement in the arrest of Moyer.
The real question then becomes how a parent, especially one who has the responsibility of presiding judge, could not be affected by a legal proceeding in which his or her child has more than a de minimis interest. It seems clear that under our rules, a duty **388to recuse existed and that the actions previously taken by Judge Showalter to erase his son's name as a participant in the case did not eliminate the inherent bias created under the circumstances of this case. At a minimum, his interest is not merely insignificant; it raises a reasonable question regarding his impartiality.
Regardless, ordering that his son's name be erased from both police reports and witness lists did not eliminate Officer Showalter's actual involvement in the arrest and subsequent detainment of Moyer. In many, if not most, serious criminal cases, the circumstances surrounding the arrest of a suspect are a critical focus of pretrial motions to suppress or dismiss. Here, it is more likely than not that Officer Showalter would be a material witness to events leading up to and including the arrest and subsequent detainment of Moyer. Thus, Officer Showalter was likely to be a material witness in the case and under our code; the judge had a duty to recuse.
Finally, I would find that recusal was required under the Due Process Clause of the United States Constitution. As the majority points out, "The United States Supreme Court has characterized the Due Process Clause as the ' "constitutional floor" ' on recusal claims, with the ceiling set by ' "common law, statutes, or the professional standards of the bench and bar." ' Caperton [v. A.T. Massey Coal Co. ], 556 U.S. [868,] 889[, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009) ] (quoting Bracy v. Gramley , 520 U.S. 899, 904, 117 S.Ct. 1793, 138 L.Ed.2d 97 [1997] )." Sawyer 297 Kan. at 906, 305 P.3d 608. "Recusal is required under the Fourteenth Amendment's Due Process Clause when the judge is actually biased or there is a constitutionally intolerable probability of actual bias." Hurd , 298 Kan. at 570, 316 P.3d 696 (citing Sawyer , 297 Kan. at 909, 305 P.3d 608 ). In Sawyer , this court stated the two-part test utilized by the court in earlier opinions to determine whether a criminal defendant is able to obtain reversal of a conviction or sentence because of a judge's failure to recuse. 297 Kan. at 909, 305 P.3d 608. That test asks "whether the judge had a duty to recuse from the case because the judge was biased, prejudiced, or partial. If so, then the test has examined whether the judge's failure to recuse resulted in actual bias or prejudice." 297 Kan. at 909, 305 P.3d 608. This court questioned the continuing validity of the test in light of the earlier conflation of the bases for recusal but did not **389decide the question because "there has always been a safety valve that relieved a defendant of the obligation to show actual bias or prejudice" when " ' "experience teaches that the probability of actual bias ... is too high to be constitutionally tolerable." ' " 297 Kan. at 909, 305 P.3d 608 (quoting Caperton , 556 U.S. at 877, 129 S.Ct. 2252 ).
Sawyer discussed four nonexclusive categories where
"as an objective matter, recusal would be required in order to satisfy due process: when a judge has a direct, personal, substantial pecuniary interest in the case; when a judge has an indirect financial interest in the case's outcome; when a judge issues a contempt citation in one case and proceeds to try the contempt citation; and, in rare instances, when a litigant donates to a judge's campaign for office." Sawyer , 297 Kan. at 909, 305 P.3d 608.
The majority concluded that the circumstances alleged by Moyer do not fit into the categories discussed in Sawyer but acknowledged that those categories were not intended to be the exclusive objectively prejudicial scenarios. Here, I would simply find the safety valve previously mentioned, when "experience teaches that the probability of actual bias ... is too high to be constitutionally *103tolerable," relieves Moyer from satisfying the nonexclusive categories set forth in Sawyer . In Sawyer , 297 Kan. at 910, 305 P.3d 608, quoting Caperton we explained:
"In lieu of exclusive reliance on that personal inquiry, or on appellate review of the judge's determination respecting actual bias, the Due Process Clause has been implemented by objective standards that do not require proof of actual bias. [Citations removed.] In defining these standards the Court has asked whether, 'under a realistic appraisal of psychological tendencies and human weakness,' the interest 'poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.' [Citation removed.] Caperton , 556 U.S. at 883-84, 129 S.Ct. 2252."
Clearly, under any realistic appraisal of human nature, the presence of the parent/child relationship in the context presented here poses a threat of actual bias. Actual bias is not only probable but unavoidable when a presiding judge's child is a material, endorsed law enforcement witness for the prosecution in the case against the defendant. The existence of the presiding judge-father/son-witness relationship in this case shreds any illusion of impartiality.
In my dissenting opinion in State v. Ward , 292 Kan. 541, 583, 256 P.3d 801 (2011), I stated:
**390"Much thought and planning has been given to the creation of the courtroom setting in which the pursuit of justice is to be carried out. We strive for an ambience of dignity, consideration, respect, and, most of all, impartiality, in which each witness' testimony is given its due evidentiary weight."
The protection of such impartiality lies with the presiding judge. When the judge's impartiality is as suspect as it is in this case, the very foundation inherent in the concept of a fair trial becomes intolerably compromised.
I would find the probability of bias and prejudice under these circumstances too high to be constitutionally tolerable. Under these circumstances, Judge Showalter had a constitutional and statutory duty, as well as a duty under our Code of Judicial Conduct, to recuse. As a result, I would reverse the convictions in this matter and remand for a new trial with a different judge.