Recusal, also referred to as disqualification, refers to the act of abstaining from participation in an official
action such as a legal proceeding due to a conflict of
interest of the presiding court official or administrative officer. Applicable statutes or
canons of ethics may provide standards for recusal in a given proceeding or matter. Providing
that the judge or presiding offer must be free from disabling conflicts of interest makes the fairness of the proceedings less
likely to be questioned.
Recusal in the United States
In the United States, the term "recusal" is used most often with respect to court
proceedings. Two sections of title 28 of the United States Code (the Judicial Code) providing standards for judicial
disqualification or recusal. Section 455, captioned "Disqualification of justice, judge, or magistrate judge," provides that a
federal judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The same
section also provides that a judge is disqualified "where he has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding"; when the judge has previously served as a lawyer or witness
concerning the same case or has expressed an opinion concerning its outcome; or when the judge or a member of his or her
immediate family has a financial interest in the outcome of the proceeding.
28 U.S.C. sec. 144, captioned "Bias or prejudice of judge," provides that under circumstances, when a party to a case in a
United States District Court files a "timely and sufficient affidavit that
the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of an adverse party,"
the case shall be transferred to another judge.
The general rule is that to warrant recusal, a judge's expression of an opinion about the merits of a case or familiarity with
the facts or the parties must have originated in a source outside the case itself. This is referred to in the United States as
the "extra-judicial source rule" and was recognized as a general presumption, although not an invariable one, in the 1994 U.S.
Supreme Court decision in Liteky v. United States.
Often justices or judges will recuse themselves sua sponte (on their own motion),
recognizing that facts leading to their disqualification are present. However, where such facts exist, a party to the case may
suggest recusal. Generally, each judge is the arbiter of a motion for the judge's recusal, which is addressed to the judge's
conscience and discretion. However, where lower courts are concerned, an erroneous refusal to recuse in a clear case can be
reviewed on appeal or, under extreme circumstances, by a petition for a writ of mandamus.
In the Supreme Court of the United States, the Justices typically
voluntarily recuse themselves from participating in cases in which they have a financial interest. For example, Justice
Sandra Day O'Connor generally did not participate in cases involving
telecommunications firms because she owned stock in such firms, while Justice
Stephen Breyer has disqualified himself in some cases involving insurance companies because of his participation in a Lloyds of
London syndicate. Justices also have declined to participate in cases in which close relatives, such as their children,
are lawyers for one of the parties. On occasion, recusal takes place under more unusual circumstances; for example, in two cases,
Chief Justice William H. Rehnquist stepped down from the bench when cases were argued
by Arizona attorney James Brosnahan, who had testified against Rehnquist at his confirmation hearing in 1986. Whatever the reason
for recusal, the United States Reports will record that the named Justice "took no part in
the consideration or decision of this case."
Historically, standards for recusal in the Supreme Court and lower courts were less rigorous than they have become in more
recent years. In the 1803 case of Marbury v. Madison, Chief Justice John Marshall participated in the decision and authored the opinion of the Court even though Marshall's
actions as Secretary of State were the subject of the proceeding.
Moreover, during the 19th century, the U.S. federal court system was structured so that an appeal from a judge's decision was
often heard by an appellate panel containing the same judge, who was expected to sit in impartial review of his own earlier
ruling. This situation is no longer permissible, and 28 U.S.C. sec. 47 provides that "No judge shall hear or determine an appeal
from the decision of a case or issue tried by him."
One of the most notable disputes over recusal in U.S. Supreme Court history took place in 1946, when Justice Hugo Black participated in deciding the Jewel Ridge Coal case although a former law partner of Black's
argued for the prevailing side. The losing party in the 5-4 decision sought reargument on the ground that Black should have been
disqualified; Black declined to recuse himself and the decision stood, but Justice Robert H.
Jackson wrote a short opinion suggesting that the decision that Black should sit in the case was Black's alone and the
Court did not endorse it. The dispute aggravated infighting between Black and Jackson and it has been suggested that this was one
of the reasons that when Chief Justice Harlan Fiske Stone died, President
Harry S. Truman appointed Fred Vinson to succeed
Stone rather than promote a sitting Associate Justice to the Chief Justice.
In 1973, then-Associate Justice Rehnquist wrote a lengthy in-chambers opinion declining to recuse himself in Laird v.
Tatum, a case challenging the validity of certain arrests, even though Rehnquist had previously served as a White House lawyer who had opined that the arrest program was valid. In 2004, Justice Antonin Scalia declined to recuse himself in a case to which Vice President Dick Cheney was a party in his
official capacity, despite the contention of several environmental groups that Scalia's
participation created an appearance of impropriety in view of the fact that Scalia had recently participated in a widely
publicized hunting trip with the Vice President. The same year, however, Scalia recused himself
in Elk Grove Unified School District v. Newdow, a First Amendment case challenging inclusion of the words "under God" in
the Pledge of Allegiance, after giving a public speech in which Scalia stated his
view that Newdow's claims were meritless.
In certain special situations, circumstances that would otherwise call for recusal of a judge or group of judges may be
disregarded, when otherwise no judge would be available to hear the case. For example, if a case concerns a salary increase
payable to a judge, that judge would ordinarily be disqualified from hearing the case. However, if the pay raise is applicable to
all the judges in the entire court system, the judge will keep the case, because the grounds for recusal would be equally
applicable to any other judge. The principle that a judge will not be disqualified when the effect would be that no judge could
hear the case is sometimes referred to as the "rule of necessity."
Outside the judicial system, the concept of recusal is also applied in administrative agencies. When a member of a multi-member
administrative body is recused, the remaining members typically determine the outcome. When the sole occupant of an official
position is recused, the matter may be delegated to the official's deputy or to a temporarily designated official; for example,
when the Solicitor General of the United States is recused from a case,
the Deputy Solicitor General will handle the matter in his place.
Concepts analogous to recusal also exist in the legislative branch. The rules of the
United States Senate and House of Representatives provide that a Member should not vote on a measure as to
which he or she has a personal financial interest. In such cases, the Senator or Representative may record a vote of "Present"
instead of Yea or Nay.
State laws or court rules also provide for recusal of judges. The precise rules vary from state to state. If there is even a
single ground for recusal a judge must recuse himself except in very limited circumstances. Recusal laws may vary by
jurisdiction, but the following are nearly universal grounds for recusal.
- The Judge is related to a party, attorney, or spouse of either party (usually) within three degrees of kinship.
- The Judge is a party.
- The Judge is a material witness unless pleading purporting to make the Judge a party is
false (determined by presiding judge, but see Substitution (law)).
- Judge has previously acted as an attorney for a party.
- Judge prepared any legal instrument (such as a contract or will) whose validity or construction is at issue.
- Appellate Judge previously handled case as a Trial
Judge.
- Judge has personal or financial interest in the outcome. This particular ground varies by jurisdiction. Some require recusal
if there is any interest at all in the outcome, while others only require recusal if there is "significant" interest.
- Judge determines he cannot act impartially.
Responsibility and Consequences
A Judge that has grounds to recuse himself should do so. If a judge does not know the grounds exist to recuse himself (but
they do) the error is harmless.
If a Judge does not recuse himself when he should have known to he may be subject to sanctions that vary by jurisdiction.
Waiver and Substitution
The Recusal rule may be avoided or ignored if all parties and the Judge agree, although in practice this rarely occurs. If
recusal is avoided in this manner a full and complete record of the facts that qualify as grounds, above, must be made for the
appellate court.
If a judge fails to recuse himself sua sponte and a party believes the judge has a bias they may motion for substitution. In some jurisdictions litigants may have the right to
substitute a judge even if there is no bias.
See also
References
- Wis. Stat. sec. 757.19(2)
- Wis. SCR 60.04(4)
- State v. Asfoor, 75 Wis.2d 411, 436 (1977).
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