0204 065630 0552 Disqualification of Trial Judge For Cause Cropped

50AMJURPOF3d449 Page1
50Am.Jur.ProofofFacts3d449(Originallypublishedin1999)
AmericanJurisprudenceProofofFacts3d
DatabaseupdatedJune2011
CategoricalListofArticles
DisqualificationofTrialJudgeforCause
Hon.D.DuffMckee[*]
TABLEOFCONTENTS
ArticleOutline
Scope
Index
ResearchReferences
TopicofArticle:
Proceduresandproofrequiredtoobtainthedisqualificationoftheassignedtrialjudgefor
cause.
Thisissuemayariseinanycase.
ARTICLEOUTLINE
IBackground
AIngeneral
1Introduction;scopeofarticle
2Noteofcaution
3HistoricalOverview
BElements
4CodeofJudicialConduct
5Mandatoryrecusal
6MandatoryrecusalPersonalinterestinlitigation
6.5Personalinterestofjudge'sspouseorchild
7MandatoryrecusalFinancialinterest
8MandatoryrecusalFamilialrelationships
9MandatoryrecusalPriorassociationwithcase
9.5 Mandatory recusalInvolvement in mediation or settlement
negotiations
10MandatoryrecusalFormerlawclerks
11MandatoryrecusalJudgeasmaterialwitness
12Discretionarygroundsfordisqualification
13 Discretionary grounds for disqualificationPersonal bias or
prejudice
14DiscretionarygroundsfordisqualificationAppearanceofbias
2011ThomsonReuters.NoClaimtoOrig.USGov.Works.
50 AMJUR POF 3d 449 Page 2
50 Am. Jur. Proof of Facts 3d 449 (Originally published in 1999)
2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
14.5DiscretionarygroundsfordisqualificationStrayremarks
15DiscretionarygroundsfordisqualificationAnimositytowards
counsel
16 Discretionary grounds for disqualificationExtrajudicial
SourceRule
17Exclusions
CProceduresforDisqualification
18Dutytorecuse
19Disqualificationwithoutcause
20Formalmotion
21FormalmotionNecessityandsufficiencyofaffidavit
22FormalmotionTimelinessofmotion
23FormalmotionJurisdictionoverlitigation
24FormalmotionHearingofmotion
25Appellatereview
25.5Sanctionablerecusalmotionsandconduct
DTacticalConsiderations
26Selectionofprocedures
27Informalorformalproceedings
28Formalmotiontorecuse
29Defenseconsiderations
IIElementsofProof
30Initialanalysis;checklist
31Exclusionsandexceptions;Checklist
32Proceduresforseekingrecusal;Checklist
IIIModelCorrespondence,MotionsandDiscovery
33Introduction
34Informalcommunications
35Sampleletterstojudge
36Peremptorychallengemotion
37Noticeofreassignment
38Motionfordisqualificationforcause(mandatorygrounds)
39Motionfordisqualificationforcause(discretionarygrounds)
40Discoveryconsiderations
41Discoverydirectedtochallengedjudge
42Otherdiscovery
IVProofThatJudgeShouldBeDisqualified
AConversationsinaBar
43Acquaintancewithchallengedjudge
44Theconversationinthebar(foundation)
45Theconversationinthebar(substance)
46Theconversationinthebar(prejudicialremarks)
BTheSeminar
47Background
48Arrangingtestimonybyexpertwitnesses
49Selectionofexpertsinpendingcase
50Arrangingtheseminar
51Involvementoftrialjudge
52Attempttoprejudicejudge
CAppearanceofAnimosity
53Background
54Familiaritywithtargetlawyer
55Familiaritywithtargetjudge
56Appearanceofanimositytowardcounsel
57Animosityaffectingclient'sinterest
DExaminationofJudge
58Background
59Recusalaffidavit
60Membershipincountryclub
61Clubdiscriminatesagainstwomenandminorities
62Judge'sinvolvementinchangingbylaws
63Club'spresentpolicy
64Potentialforbiasandprejudice
65Familyaffiliations
VBibliography
66Legalperiodicals
ResearchReferences
TopicofArticle:
Proceduresandproofrequiredtoobtainthedisqualificationoftheassignedtrialjudgefor
cause.
Thisissuemayariseinanycase.
INDEX
ABAcodeofjudicialconduct,4
Acquaintancewithchallengedjudge,43
Affidavitofrecusal,21,59
Analysisofevidence,initial,30
Animositytowardscounsel,15,5357
Appeal,25
Appearanceofanimosity,5357
Appearanceofbias,14
Arrangingtheseminar,50
Attorneys,810,5357
Backgrounddiscussionofsubjectmatter,129
Bar,conversationsin,4446
Biasorprejudice,personal,13,14,46,52,64
Bibliographyofresearchmaterials,66
Bondsasfinancialinterest,7
Bylawschangebycountryclub,judge'sinvolvementin,63
Cause,motionfordisqualificationfor,38,39
Checklistsexclusionsandexceptions,31
proceduresforseekingrecusal,32
proofelements,3032
Classaction,membershipin,6
Clerks,former,10
Client'sinterestasaffectedbyanimosity,57
Codeofjudicialconduct,4
Commoninvestmentfundownership,7
Conflictofinterest,6
Conversationsinabar,4446
Correspondenceforms,34,35
Countryclub,membershipindiscriminatory,5863
Defenseconsiderations,29
Degreeofrelatednesstopartyorcounsel,8
Discovery,4042
Discretionarydisqualification,1216,39
Discriminationbyclubofwhichjudgeisamember,5863
Dislikeofcounsel,15,5357
Dutytorecuse,18
Economicinterestinlitigation,7
Electionofremedies,26
Elementsofproof,3032
Ethicalcodeforjudges,4
Examinationofjudge,5865
Exclusionsandexceptions,7,17,31
Expertwitnesses,48,49
Extrajudicialsourcerule,16
Familiaritybetweenattorneyandjudge,55
Familyaffiliations,8,65
Financialinterestinlitigation,7
Formalmotions,2024,28
Formerlawclerks,10
Formsandmodels,3342
Foundationforconversationevidence,44
Governmentbondsasfinancialinterest,7
Hatredtowardscounsel,15,5357
Hearingonmotion,24
Historicaloverview,3
Holdingofficeasfinancialinterest,7
Influencingjudge,attemptsat,52
Informalcommunicationwithjudge,34
Informalproceedings,27
Initialanalysisofevidence,30
Insurancepolicyownershipasfinancialinterest,7
Interestinlitigation,generally,611
Introductiontoarticle,1
Involvementinseminar,51
Judicialconductcode,4
Jurisdictionovermotion,23
Lawclerks,former,10
Lawyers.Attorneys,supra
Layingfoundationforconversationevidence,44
Legaltextsandperiodicals,66
Letterstojudge,forms,35
Localrules,disqualificationgovernedby,2
Mandatoryrecusal,511,38
Materialwitness,judgeas,11
Membershipinorganization,7,5863
Minorities,discriminationagainst,61
Motionstodisqualify,2024,28,36,38,39
Municipalbondsasfinancialinterest,7
Mutualfundownership,7
Mutualinsurancepolicyownershipasfinancialinterest,7
Necessity,ruleof,17
Noticeofreassignment,37
Peremptorychallenge,19,36
Periodicalsbibliography,66
Personalinterestinlitigation,6
Prejudiceorbias,personal,13,14,46,52,64
Priorassociationwithcause,9
Procedurefordisqualification,1825,32
Prosecutorinsamecase,9
Reassignmentnotice,37
Relativesofjudge,8,65
Remittalofdisqualification,17
Researchmaterialsbibliography,66
Ruleofnecessity,17
Sampleformsandformats,3342
Scopeofarticle,1
Selectionofexpertsinpendingcase,49
Selectionofprocedures,26
Seminar,4752
Socialclubmembership,5863
Supportingaffidavit,21
Tacticalconsiderations,generally,26etseq.
Textofcanononrecusal,4
Textsandperiodicals,66
Timelinessofmotion,22
Witness,judgeas,11
Women,discriminationagainst,61
I.Background
A.Ingeneral
1.Introduction;scopeofarticle
[CumulativeSupplement]
Wherecounseldecidestosuggestthatthetrialjudgeassignedtothecasemuststepaside
because of bias or prejudice, the issue becomes one of considerable delicacy. If handled cor-
rectly, it can be resolved with hardly a ripple as a routine piece of business. If handled
wrongly, it can instill animosity, damage reputations, and perhaps cripple the progress of the
case. If the issue is truly bungled, the consequences escalatefines, sanctions and citations
forcontemptarenotuncommon.
This article examines the elements which must be present and the procedures which are
availabletoobtainthedisqualificationofasittingtrialjudge.Thefocusisonformalproceed-
ingsbymotion,althoughthemechanismforperemptorychallengesandinformalsuggestions
are included. The emphasis is on handling the matter with an appropriate level of discretion
and deference to get the job done without blowing up the judge, the lawyer or the lawyer's
case.
CUMULATIVESUPPLEMENT
A.L.R.Library
Construction and Application of Rule of Necessity in Judicial Actions, Providing that a
JudgeIsNotDisqualifiedtoTryaCaseBecauseofPersonalInterestIfCaseCannotBeHeard
Otherwise,27A.L.R.6th403
Cases:
Structuralconflictofinterestinasbestoslitigation:Federaljudgehearingconsolidated
asbestos-related bankruptcy cases was irreversibly tainted, warranting disqualification from
someofthecases,bystructuralconflictofinterestarisingfromfactthattwoneutraladvisors
tojudgesimultaneouslyservedasadvocatesinunrelatedasbestos-relatedbankruptcy,repres-
enting future asbestos personal injury claimants; judge's extensive ex parte discussions with
advisorscoveredallmajorissuesinconsolidatedcases,advisorsheldwide-rangingresponsib-
ilities in consolidated cases including one advisor's drafting of legal opinions, and extensive
and substantive ex parte meetings with parties added to questionableness of impartiality. 28
U.S.C.A.455(a);ABACodeofJud.Conduct,Canon3,subd.A(4).InreKensingtonIntern.
Ltd., 368 F.3d 289, Bankr. L. Rep. (CCH) P 80102 (3d Cir. 2004); West's Key Number Di-
gest,Equity 49(1).
Redcardingofcounsel:Trialjudge'suseofa"soccer-style""redcard"procedureduring
employmentdiscriminationcase,topenalizeandfinecounselforimproperconduct,wasinap-
propriate and violated the requirement of judicial decorum; after it was initiated, defendants'
attorneywasallowedtoraisenumerousobjections,someofwhichwereoverruled,andtojoke
with the judge without being fined, while plaintiffs' lawyer was immediately given a "red
card"whensheattemptedtoaddressanobjection.CodeofJud.Ethics,Canon3(B)(3).Haluck
v. Ricoh Electronics, Inc., 151 Cal. App. 4th 994, 60 Cal. Rptr. 3d 542 (4th Dist. 2007), as
modified, (June 21, 2007) and review denied, (Aug. 29, 2007); West's Key Number Digest,
Trial 18.
Trial judge who was nationally known advocate for children's rights was not required to
disqualifyhimselffromsexualassaultprosecutioninvolvingchildvictim,onbasisthatjudge's
impartiality might reasonably be questioned, where defendant failed to present any evidence
in support of his assertions about judge's interest in victim's rights, and, even if defendant
demonstrated that judge had interest in victim's rights, defendant failed to show how that
alone would raise question of judge's impartiality in the case. C.G.S.A. 53a-49, 53a-70
(a)(2).Statev.Montini,52Conn.App.682,730A.2d76(1999);West'sKeyNumberDigest,
Judges 49(1).
Although a judge has a duty to recuse when required, a judge has as strong an obligation
not to recuse when the situationdoes not require. Kreuzer v. George Washington University,
896A.2d238,208Ed.LawRep.806(D.C.2006);West'sKeyNumberDigest,Judges 50.
Affidavitofjudicialprejudicedidnotcreatereasonabledoubtastoabilityoftwojudges,
whohadbeenassignedtoquowarrantoactionforousterofcountysheriff,tohearthematter;
sheriffallegedthatheandhisstaffregularlyappearedbeforealljudgesinthejudicialdistrict,
thatalljudgesinthedistricthadbeenexposedtointenselocalpublicitysurroundingcriminal
perjury charges and the ouster case, that ouster action arose in politically charged environ-
ment,andthatalljudgesinjudicialdistricthadremovedthemselvesfromthecriminalperjury
case.KansasStatutes20-311d.Stateexrel.Stovallv.Meneley,271Kan.355,22P.3d124
(2001);West'sKeyNumberDigest,Judges 49(1).
Adequacy of disclosure: Judge's voluntary disclosure prior to trial of the fact that
plaintiff'sexperthadbeenhiscampaigntreasurerinelectionforjudgeshipwasinsufficientto
providedefendantswithnoticeoftrueextentofrelationship,suchthatdefendants'opportunity
tofilemotiontorecusepriortotrialmayhavebeenobstructed,wherejudgefailedtodisclose
thathehadrepresentedexpertinseveraltransactions,hadcreatedtrustsforexpert'swifeand
children,andhadbeenbusinesspartnerswithexpertfor20years.LSA-C.C.P.arts.151,154.
Radcliffe10,LLCv.ZipTubeSystemsofLouisiana,942So.2d1071(La.2006);West'sKey
NumberDigest,Judges 45.
Sexual harassment: Judge's conduct in referring to female assistant district attorneys in
hiscourtas"babes,"andinmakingotherinappropriateremarksofsexualnaturetowomenre-
quiredtoappearinhiscourtroomorwhowereunderhissupervision,violatedcanonsofjudi-
cial conduct requiring order and decorum in proceedings before judge, requiring judge to be
patient, dignified, and courteous, and prohibiting bias or prejudice based on sex, and amoun-
ted to willful misconduct under State Constitution. Vernon's Ann.Texas Const. Art. 5, 1-a
(6); V.T.C.A., Government Code Title 2, Subtitle G App, Code of Jud.Conduct, Canon 3,
subd. B(3, 4, 6). In re Barr, 13 S.W.3d 525 (Tex. Review Trib. 1998), reh'g overruled, (Mar.
1,1999);West'sKeyNumberDigest,Judges 11(2).
[TopofSection]
[ENDOFSUPPLEMENT]
2.Noteofcaution
The specifics involved in the disqualification of a judge, the precise pleadings allowed,
andespeciallythetimelimits,nomenclatureandlabelsused,areallmattersgovernedbylocal
ruleorstatuteineachjurisdiction.Althoughtheprinciplesappeartobeuniversal,andthepro-
ceduresdiscussedinthisarticlearefundamentallythesame,theexactmethodsmayvaryfrom
statetostate,and,incertaincircumstances,thesevariancescanbematerial.Counselmustbe
familiarwiththerulesofprocedure,thestatutesonpointandtheconstitutionalprovisionsap-
plicabletotheforumstatebeforeinstitutinganyproceedingsinthisarea.
Itisalsofrequentlythecasethattheprocessofdisqualifyingajudgemaybethesubjectof
very specific local customs which are peculiar to a particular court. In Idaho, for example, it
wasthepracticeformanyyearsforthelawyeradvancingachallengeagainstthetrialjudgeto
personally forewarn the judge that the challenge was coming. It was considered a personal
slighttofileamotionfordisqualificationwithoutthisadvancevisittothejudge.Thiscustom
hasfallenbythewaysideovertheyears,andalthoughmanylawyersstillobserveit,motions
in Idaho are now routinely filed without any advance warning. At one time, however, failure
toadheretothislocalcustomwouldseriouslyinjurethelawyer'sreputationbeforetheentire
bench.
Suchlocalcustomsarebeyondthereachofthisarticle.However,counselandespecially
counselfromafarmustbefamiliarwithanylocallegalcustomsbeforemovingforwardwith
anapplicationforrecusal.
Cases:
Attorney's surreptitious tape recording of sham interview with judge's former law
clerk, as part of investigation into judge's alleged bias against attorney's client, violated dis-
ciplinaryrulesprohibitinglawyersfromengagingindishonestordeceitfulconductormaking
falsestatementsoflaworfact,eventhoughtherewasnolegalbarrierpreventingthetapere-
cordinginNewYork,whererecordingofthelawclerkwasinfurtheranceofanefforttoco-
erce or even manufacture sworn testimony against the judge in a pending matter. S.J.C.Rule
3:07,CodeofProf.Resp.,DR1-102(A)(4),DR7-102(A)(5)(1997).InreCrossen,450Mass.
533,880N.E.2d352(2008);West'sKeyNumberDigest,AttorneyandClient 42.
[TopofSection]
[ENDOFSUPPLEMENT]
3.HistoricalOverview
Itisamatteroffundamentaldueprocessthatapartyisentitledtoatrialbeforeanimpar-
tialanddisinterestedjudicialofficer.Thisconceptofjudicialimpartialityhasexistedfromthe
inception of the country.[1] The first recorded instance of a judge recusing himself to ensure
impartialitywasin1816,whenJusticeJohnMarshallremovedhimselffromacaseinvolving
adisputeoverlandwhichheandhisbrotherwereattemptingtopurchase.[2]
While the principle of judicial recusal has always been present, the historical view held
that a trial judge was required to remain on the case unless it was clearly improper to do so.
Referredtoas"thedutytosit"doctrine,itrequiredthattherebeademonstratedandexisting
factualbasisforrecusalofthejudgebeforedisqualificationwasindicated.Conjecture,specu-
lationormereappearanceswerenotsufficient.
Areviewofoldercasesindicateagreatreluctancetoforcetherecusalofatrialjudgeun-
less the showing of impropriety was overwhelming. Even then, examples exist where courts
declinedtorequiredisqualificationeveninthefaceofobviousoverreaching.Considerthefol-
lowingAlabamacasefrom1947beforetheadventofMirandawarningsandotherconsider-
ationsindeathpenaltycases:
CaseIllustration:
Inacapitalmurdercase,thedefendantwasarrestedandinterrogatedbythepoliceafewdays
afterthemurder.Duringthetrial,itwasrevealedthatthetrialjudgehadbeenpresentforthe
police interrogation, and had even participated in it. Defendant claimed in a motion for new
trial,andlateronappeal,thatthetrialjudgeshouldhaverecusedhimselffromparticipatingin
the trial by reason of his presence at and participation in the police interrogation of the de-
fendant.Theappellatecourtdisagreedandaffirmedtheconviction,holdingthattherewasno
proof of any specific impropriety in the trial judge being present for the interrogation. Even
thoughtherewasnorecordtosupportthespeculation,theappellatecourtobservedthatitwas
possiblethatthejudgewasthereinanofficialcapacity,suchasahabeascorpusproceedingor
bail hearing, and that without a specific showing that the judge's presence was improper,
groundsfordisqualificationhadnotbeenproved.Theconvictionwasaffirmed.[3]
Themodernview,whichbegantoemergeintheearly1970s,isthatajudgeshouldrecuse
ifeventheappearanceofareasonablequestiontoimpartialityexists.Thechangeisadramat-
icshiftfromdisqualificationbaseduponsubjectiveassessmentofactualinfluenceonthepar-
ticularjudgetoanobjectiveevaluationofthepotentialforinfluencefromtheperspectiveofa
reasonable observer. This change in perspective was embodied in a code of judicial conduct
approved by the American Bar Association in 1972, which then began to spread throughout
thestates.
Thefederalstatuteondisqualificationofjudges[4]wascompletelyoverhauledin1974to
conformtothenewABAcodeofjudicialconduct.Thepreviousstatute,whichhadremained
inplacewithlittleamendmentsinceitsenactmentin1792,providedthatdisqualificationofa
judgewasonlyavailableinafewspecificsituationsofactualpersonalinterest.Thenewstat-
ute added a provision that federal judges must step aside anytime a situation is presented
wherethejudge'simpartialitymightreasonablybequestioned.Thisdrasticchangetothelong
standing federal rule led the appellate courts to observe that the amendments were expressly
intendedtodoawaywiththedutytositdoctrine.[5]
States,too,wereexpandingthebasesofjudicialdisqualificationbeyondnarrowlydefined
specificgrounds.Texasprovidesanexampleofhowtheapproachtojudicialdisqualification
changedwiththecomingoftheABAcodeofjudicialconduct.Thedutytositdoctrine,ases-
tablishedinearlyTexaslaw,providedthatatrialjudgewasrequiredtosit,regardlessofhow
uncomfortable or embarrassing the circumstances, unless specific constitutional grounds for
disqualification existed. The Texas constitution provided only three grounds for disqualifica-
tion: having a financial interest in the case, being related to a party, or having appeared as
counselinthecase.Thesegroundswereheldtobetheexclusivebasesfordisqualification.In
1974, Texas adopted, in substantial part, the ABA code of judicial conduct. This led Texas
courts to begin expanding the available grounds for seeking judicial disqualification, and to
recognizethemoresubjectivestandardofareasonablebasistoquestionimpartiality.[6]
The point is to beware of case authority issued prior to the middle 1970s. The judicial
landscapechangedconsiderablyduringthistimeintheareaofjudicialdisqualifications,with
theapprovaloftheABAcodeofjudicialconduct,theoverhaulofthefederaljudicialstatutes,
and the spread of the code of judicial conduct through the several states. Counsel must exer-
cisecarebeforeplacingrelianceonearlierauthority,toassurethattheauthorityisstillvalid.
Cases:
In evaluating whether a judge's impartiality might reasonably be questioned, inquiry is
fromtheperspectiveofareasonableobserverwhoisinformedofallthesurroundingfactsand
circumstances. 28 U.S.C.A. 455(a). In re Sherwin-Williams Co., 607 F.3d 474 (7th Cir.
2010).
[TopofSection]
[ENDOFSUPPLEMENT]
B.Elements
4.CodeofJudicialConduct
A code of judicial conduct was approved by the American Bar Association in 1972 and
hasbecomethemodelformoststatesintheenactmentofrulesorstatutesgoverningjudicial
disqualification. Idaho adopted the code in 1976. As is relevant to the issue of judicial dis-
qualification,theoperativeprovisionisCanon3C,whichprovidesasfollows:
Canon3C.Disqualification
1.Judgesshoulddisqualifythemselvesinproceedingsinwhichimpartialitymightreason-
ablybequestionedorwherepersonalknowledgeofdisputedevidentiaryfactsmightreas-
onablyaffecttheirimpartialityintheproceeding.Judgesshalldisqualifythemselvesinin-
stanceswhere:
a.theyhaveapersonalbiasorprejudiceconcerningaparty,ortheparty'sattorney;
b.theyservedasalawyerinthematterofcontroversy,oralawyerwithwhomtheypre-
viouslypracticedlawservedduringsuchassociationasalawyerconcerningthematter;
orthejudgeorsuchlawyerhasbeenamaterialwitnessconcerningit;
c. they know that they, individually or as a fiduciary, or their spouse or minor children
residingintheirhousehold,haveafinancialinterestinthesubjectmatterincontroversy,
inapartytotheproceeding,oranyotherinterest,thatcouldbesubstantiallyaffectedby
theoutcomeoftheproceeding;
d. the judge or the judge's spouse, or a person within the third degree of relationship to
eitherofthem,orthespouseofsuchaperson:
(i)isapartytotheproceeding,oranofficer,director,ortrusteeofaparty;
(ii)isactingasalawyerintheproceeding;
(iii) is known by the judge to have an interest that could be substantially affected by
theoutcomeoftheproceeding;
(iv)istothejudge'sknowledgelikelytobeamaterialwitnessintheproceeding.
2. Judges should inform themselves about their personal and fiduciary financial interests,
andmakeareasonableefforttoinformthemselvesaboutthepersonalfinancialinterestsof
theirspouseandminorchildrenresidingintheirhousehold.
3.Forthepurposesofthissection:
a.thedegreeofrelationshipiscalculatedaccordingtothelawsoftheStateofIdaho.
b."fiduciary"includessuchrelationshipsasexecutor,administrator,trustee,andguardi-
an;
c. "Financial interest" means ownership of a legal or equitable interest, however small,
orarelationshipasdirector,advisor,orotheractiveparticipantintheaffairsofaparty,
exceptthat:
(i)ownershipinamutualorcommoninvestmentfundthatholdssecuritiesisnota"fin-
ancialinterest"insuchsecuritiesunlessthejudgeparticipatesinthemanagementfield
ofthefund;
(ii) an office in an educational, religious, charitable, fraternal, or civic organization is
nota"financialinterest"insecuritiesheldbytheorganization;
(iii)theproprietaryinterestofapolicyholderinamutualinsurancecompany,ofade-
positor in a mutual savings association, or a similar proprietary interest, is a financial
interestintheorganizationonlyiftheoutcomeoftheproceedingshouldsubstantially
affectthevalueoftheinterest;
(iv)ownershipofgovernmentsecuritiesisa"financialinterest"intheissueronlyifthe
outcomeoftheproceedingcouldsubstantiallyaffectthevalueofthesecurities.
d. the fact that a lawyer in a proceeding is affiliated with a law firm with which a law-
yer-relativeofthejudgeisaffiliateddoesnotitselfdisqualifythejudge.[7]
Underthejudicialcanons,thefederalstatutes,andtherulesorstatutesinmoststates,judi-
cial disqualification can be divided into two categories: situations which mandate recusal by
theirmereexistence,andsituationswhichmayrequirerecusal,dependingupontheactualcir-
cumstances.
Cases:
Circuit judge's remarks, at convention of self-described progressive legal organization,
concerning supposed similarity in how President, Hitler, and Mussolini gained power, and
making comparison between the President's and Mussolini's subsequent exercises of power,
were contextually subsumed in the circuit judge's other remarks, made in violation of provi-
sion of Code of Conduct for United States Judges that judges should not publicly endorse or
oppose a candidate for public office, advocating that the President not be reelected, and did
not warrant incremental sanction or corrective action. In re Charges of Judicial Misconduct,
404F.3d688(2dCir.Jud.Council2005);West'sKeyNumberDigest,Judges 11(4).
Indianajudicialconductrulerequiringrecusal,ifajudgehasmadeapublicstatementthat
commitsorappearstocommitthejudgetoreachaparticularresultorruleinaparticularway
intheproceedingorcontroversy,didnotviolatejudge'sFirstAmendmentfreespeechrights;
rule applied to a judge in his role as a public employee, not his role as a candidate, and spe-
cified how judge would perform his or her official duties, and speech as part of such duties
wasoutsidescopeofFirstAmendment.U.S.C.A.Const.Amend.1;Ind.CodeofJud.Conduct,
Canon 2, Rule 2.11(A). Bauer v. Shepard, 620 F.3d 704 (7th Cir. 2010), petition for cert.
filed,79U.S.L.W.3228(U.S.Sept.24,2010).
TheCodeofConductforUnitedStatesJudges,whichestablishesaspirationalrulesandre-
liesuponself-enforcement,doesnotoverlapperfectlywiththestatuterequiringajudgetore-
cusehimselfinanyproceedinginwhichhisimpartialitymightreasonablybequestioned,and
it is possible to violate the Code without creating an appearance of partiality. 28 U.S.C.A.
455(a). White v. National Football League, 585 F.3d 1129, 187 L.R.R.M. (BNA) 2526,
2009-2TradeCas.(CCH)76790(8thCir.2009).
District court judge's intentional ex parte communications with prosecution team in pro-
secutionforviolatingthetermsofanexpartedomesticviolenceprotectiveorderviolatedstat-
utes and canons of the Code of Judicial Conduct barring the appearance of impropriety; fol-
lowing witness's testimony that protective order did not prohibit contact between defendant
andhischildren,judgeencouragedpoliceofficerto"gofishing,"andpassedofficeranotedir-
ectinghimtoprovisionsofprotectiveorderthatbarredchildvisitation.AS22.30.011(a)(3)(A,
CE);CodeofJud.Conduct,Canons1,2(A,B),3(B)(2)(a,b),(E).InreCummings,211P.3d
1136(Alaska2009).
CountyjudgeviolatedprovisionsofCodeofJudicialConductrelatingtoupholdinginteg-
rity and independence of the judiciary, avoiding impropriety and appearance of impropriety,
and performing adjudicative responsibilities impartially and diligently by increasing criminal
defendant'sbondandeffectivelyplacinghiminjailsolelybecauseheindicatedhisdesirefor
judge'srecusal,evenifjudgebelievedthatdefendantwasattemptingtointerferewithorderly
administrationofjusticebyrequestingrecusal.West'sF.S.A.CodeofJud.Conduct,Canons1,
2(A),3(B).InreEriksson,36So.3d580(Fla.2010).
The phrase "impartiality might reasonably be questioned" contained in code of judicial
conduct canon governing disqualification of judges means a reasonable perception of lack of
impartialitybythejudge,heldbyafairmindedandimpartialpersonbaseduponobjectivefact
orreasonableinference;itisnotbasedupontheperceptionofeitherinterestedpartiesortheir
lawyer-advocates. Code of Jud.Conduct, Canon 3(E)(1). Simprop Acquisition Co. v. L.
SimpsonCharitableRemainderUnitrust,305Ga.App.564,699S.E.2d860(2010).
When a judge's impartiality might reasonably be questioned because of personal bias
against a party, a judge shall disqualify herself from a proceeding. J.M. v. M.A., 928 N.E.2d
230(Ind.Ct.App.2010).
Citycourtjudgewho,inresponsetorequestsoflocalbusinessgroups,institutedworthless
checkcollectionprogram,createdappearanceofimpropriety,abusedjudge'sconstitutionalju-
dicialauthority,andengagedinpersistentandpublicconductprejudicialtoadministrationof
justice that brought the judicial office into disrepute, where, under worthless check program,
merchants were instructed to bring worthless checks to city court clerk of court, clerk then
prepareddemandletteroncourtstationerythatwasmailedtomakerofcheck,ifmakerfailed
topayamountofdishonoredcheckandcollectionfee,deputyclerkpreparedarrestwarrantfor
judge to sign, supported by probable cause affidavit that contained facsimile signature of ap-
plicable merchant, which court staff applied without any independent review by merchant,
and, by instituting program, judge stood in shoes of check recipient trying to collect on
checks, which disqualified him from presiding over any case based on those checks or in-
volvingthoseparties;personswhoreceiveddemandlettersandcouldnotpaysurelybelieved
they were unlikely to be treated neutrally and fairly as their cases proceeded through very
court that initiated collections against them. LSA-Const. Art. 5, 25(C); Code of
Jud.Conduct, Canons 1, 2, subd. A, 2, subd. B, 3, subd. A(1, 4). In re Fuselier, 837 So. 2d
1257(La.2003);West'sKeyNumberDigest,Judges 11(2).
Banning city prosecutor from courtroom until judge received apology for wrongs that
judgeperceivedwerecommittedagainsthimanddismissing41criminalcasesduetolackof
city prosecutor in courtroom, which incidents were widely reported in local media, violated
judicial conduct canons requiring judge to uphold integrity and independence of judiciary, to
avoid impropriety and appearance of impropriety, and to perform duties of office impartially
anddiligently,andwasconductprejudicialtoadministrationofjusticebringingjudicialoffice
into disrepute. Louisiana Constitution Art 5, 25(C); Code of Jud.Conduct, Canons 1, 2, 3,
subds. A(1-3), B(1), In re Jefferson, 753 So. 2d 181 (La. 2000); West's Key Number Digest,
Judges 11(2).
Ajudgemustrecuseherselfonmotionmadebyanypartyifherimpartialitymightreason-
ably be questioned or if she has a personal bias or prejudice concerning a party or personal
knowledge of disputed evidentiary facts concerning the proceeding. Code of Jud.Conduct,
Canon3(E)(2),(E)(2)(a).Statev.Atwood,2010ME12,988A.2d981(Me.2010).
The inquiry into whether there is an appearance of impropriety requiring disqualification
ofajudgeisgenerallytwofold:(1)whetherdefendant'sdueprocessrightswouldbeimpaired
byjudge'sparticipationinthecase,and(2)whethertherewasanappearanceofimproprietyas
setforthinCanon2oftheMichiganCodeofJudicialConductthatwouldrequirejudge'sre-
cusal.U.S.C.A.Const.Amend.14;CodeofJud.Conduct,Canon2;MCR2.003(C)(1).People
v.Aceval,486Mich.887,781N.W.2d779(2010).
Districtjudge'sconductinconfrontingpoliceofficersissuingcitationsforviolationofmu-
nicipalordinancetojudge'ssonandhisson'sfriends,identifyinghimselfasajudgeandask-
ing one of the officers if she knew who he was, violated rule of judicial conduct prohibiting
judgesfromlendingtheprestigeofjudicialofficetoadvancetheprivateinterestofthejudge
or others, and rule requiring judges to avoid all impropriety and appearance of impropriety.
NMRA, Rule 21-200(A, B). In re Hon. Florencio "Larry" Ramirez, 2006-NMSC-021, 139
N.M. 529, 135 P.3d 230 (2006), as corrected, (May 15, 2006); West's Key Number Digest,
Judges 11(2).
Judge's intemperate behavior on bench during jury deliberations in a rape case, during
which judge engaged in outburst of profanity, declaring that he detested city where the trial
was being held, accused prosecutor of overcharging the case, pressed her to offer a plea to a
misdemeanor charge so that he could "get out of this fucking black hole," and threatened to
declareamistrialifprosecutorrefused,involvedimpermissibleuseofjudicialpowerstosatis-
fy a personal interest and failure to preserve decorum of courtroom. Code of Jud. Conduct,
Canons 2, subd. B, 3, subd. A(3), McKinney's Judiciary Law App. In re Mulroy, 94 N.Y.2d
652,709N.Y.S.2d464,731N.E.2d120(2000);West'sKeyNumberDigest,Judges 11(2)
.
Conductofmagisterialdistrictjudgeindealingwithlitigantsinwaitingroomafterheleft
courtroom,whichincludedmannerofhisannouncementof"notguilty"findingstotrafficcase
defendants en masse and his impatient, undignified and discourteous treatment of those de-
fendants,violatedrulegoverningstandardsofconductofmagisterialdistrictjudgesrequiring
judge to be patient, dignified and courteous to litigants, witnesses, lawyers and others with
whomhedealsinhisofficialcapacity.InreMarraccini,908A.2d377(Pa.Ct.Jud.Discipline
2006);West'sKeyNumberDigest,JusticesofthePeace 10.
[TopofSection]
[ENDOFSUPPLEMENT]
5.Mandatoryrecusal
Themandatorygroundsforrecusalare:[8]
(1)thatthejudgeisapartytothelitigationorhasadirectinterestinitsoutcome,
(2)thatthejudgeisrelatedtoapartyoraparty'sattorney,or
(3) that a judge represented a party in the litigation at some previous time in the case, or
wasamaterialwitnessconcerningit.
Ifanyofthesecircumstancesarefoundtoexist,andifnotexceptedorwaivedasprovided
by law, disqualification is required, whether or not the described circumstance would have
anyactualbearingorinfluenceuponthejudgeorthejudge'sdecision.
All of these instances of disqualification pertain not only to the judge, but also to the
judge'sspouse,membersofthejudge'sfamily,andmembersofthejudge'sspouse'sfamilyto
the third degree of relationshipwhich is anyone within a circle bounded by great-
grandchildren, great-grandparents, grand aunts and uncles, grand nieces and nephews, and
first cousins. If the described circumstance exists with respect to any relative of the judge
within the proscribed degree of relationship, then unless the circumstance is excepted or
waivedthejudgeisobligatedtostepaside.Itisnotrequiredtoshowthattheinterestismater-
ial,thattherelationshipisclose,orthatthejudgewouldactuallybeinfluencedbyit.
Cases:
Deminimisviolationofstatute:Statutedidnotrequirerecusalofjudgewhosenamewas
addedmistakenlyandwithouthisknowledgetoaproformamotiontofileanamicusbriefina
similarsuitagainstsomeofthesamedefendants,priortohisappointmenttothebench,asno
reasonablepersonknowingthecircumstanceswouldbelievethatjudgehadanyinterestorbi-
as. 28 U.S.C.A. 455(a). Sao Paulo State of Federative Republic of Brazil v. American To-
baccoCo.,Inc.,535U.S.229,122S.Ct.1290,152L.Ed.2d346(2002);West'sKeyNumber
Digest,Judges 49(1).
Recusalisrequiredwhentheprobabilityofactualbiasonthepartofthejudgeordecision-
maker is too high to be constitutionally tolerable. U.S.C.A. Const.Amend. 14. Wesbrook v.
Thaler,585F.3d245(5thCir.2009).
Recusal is required when a reasonable person perceives a significant risk that the judge
will resolve the case on a basis other than the merits. 28 U.S.C.A. 455(a). In re U.S., 572
F.3d301(7thCir.2009).
Thestandardforrecusalisanobjectiveone;recusalisrequiredwhenareasonableandin-
formedobserverwouldquestionthejudge'simpartiality.28U.S.C.A.455.Satakiv.Broad-
castingBd.ofGovernors,733F.Supp.2d16(D.D.C.2010).
Recusalofjudge,ongroundsthathewasallegedlyfriendswithabishop,wasnotrequired
in arrestee's action against city for alleged civil rights violations stemming from his arrest
while protesting in alleged violation of a temporary restraining order obtained by a religious
organizationtoprohibitprotestwithin100feetofachurch,evenifarresteehadbeenthecent-
ralantagonisttothebishopforthreetofouryears;anyconnectionofbishopandreligiousor-
ganizationtotheactionwasremote,contingent,orspeculative,astheywerenotpartiestothe
actionorevenwitnesses.28U.S.C.A.455(b)(2).Lymanv.CityofAlbany,597F.Supp.2d
301(N.D.N.Y.2009).
Blanketchallenges:A"blanketchallenge"forchangeofaparticularjudgeundercriminal
procedureruleoccurswhenchiefprosecutorsorpublicdefendersinstructtheirdeputiestodis-
qualify a certain disfavored judge in all criminal cases of a particular nature. 16A A.R.S.
RulesCrim.Proc.,Rule10.2,subd.b,par.4.Bergeronexrel.Perezv.O'Neil,205Ariz.640,
74 P.3d 952 (Ct. App. Div. 2 2003), review denied, (Dec. 4, 2003); West's Key Number Di-
gest,Judges 51(1).
"Batson rule" proposal: Criminal procedure rule governing removal of judge upon re-
quest was not analogous to peremptory striking of juror, in terms of requirement that party
wishingtostrikejurorhadtoestablishrace- andgender-neutralreasonsforhavingstrikenpo-
tential juror, since rule governing removal of judge did not enforce federal constitutional
right,butaproceduralrightcreatedbysupremecourt,whohadauthoritytodetermineprocess
thathadtobefollowedtoexerciseit;inreferringtoperemptorystrikingofjurorincomment
toprofessionalconductruleregardingprofessionalmisconductinfilingnoticesforremovalof
judge,supremecourtsimplyacknowledgedthatbothsituationsofferpotentialforabuse.16A
A.R.S.RulesCrim.Proc.,Rule10.2,subd.b,par.4;17AA.R.S.Sup.Ct.Rules,Rule42,Rules
ofProf.Conduct,ER8.4(g).Bergeronexrel.Perezv.O'Neil,205Ariz.640,74P.3d952(Ct.
App. Div. 2 2003), review denied, (Dec. 4, 2003); West's Key Number Digest, Judges
51(1).
Trial judge's suggestion that owner of servient estate amend pleadings to include defense
ofnecessitytocrosspedestrianeasemententitledownerofdominantestatetodisqualification
ofjudge;judgeimproperlyinterjectedhimselfintothesuitbysuggestingstrategiccoursefor
one party. Shore Mariner Condominium Ass'n, Inc. v. Antonious, 722 So. 2d 247 (Fla. Dist.
Ct.App.2dDist.1998).
Thetestfordeterminingwhetherajudgeshouldrecuseherselfiswhetheranobjectiveper-
son, knowledgeable of all the circumstances, would have a reasonable basis for doubting the
judge'simpartiality.J.M.v.M.A.,928N.E.2d230(Ind.Ct.App.2010).
NYSE executive compensation litigation: Two letters circulated to stock exchange by
executive search firm, suggesting that trial judge be considered for a position on the ex-
change's board of directors, were not basis for judge's recusal in Attorney General's action
challenging compensation and benefits awarded to exchange's former chief executive officer
(CEO);bothlettersweresubmittedwellbeforeactionwascommencedandassignedtojudge,
and there was no indication that the exchange's prior failure to offer judge a position biased,
prejudiced,orpredisposedhimtoreachanyparticularconclusioninthelitigation.22NYCRR
100.3(B)(4),(E)(1). Peopleexrel.Spitzerv.Grasso,49A.D.3d303,853N.Y.S.2d64(1st
Dep't2008);West'sKeyNumberDigest,Judges 45.
Familiarity with an expert witness: Judge's mere familiarity with a disinterested expert
witness in defendant's bench trial for assault did not relate to personal bias or prejudice con-
cerning a party, a party's lawyer, or personal knowledge of a disputed fact in the case and,
therefore,didnotfallintothesectionoftheNorthDakotaCodeofJudicialConductmandat-
ingdisqualification.CodeofJud.Conduct,Canon3(E)(1)(a).Statev.Jacobson,2008ND73,
747N.W.2d481(N.D.2008);West'sKeyNumberDigest,Judges 49(1).
Acrimoniousrelationshipbetween,ononehand,plaintiff'scounselandotherlawyersfrom
counsel's law firm, and on the other hand the Tennessee trial court judge assigned to dispose
of defendants' summary judgment motion in personal injury action, would cause a person of
ordinaryprudenceinjudge'spositiontoreasonablyquestionjudge'simpartiality,andthus,re-
cusalofjudgewasrequired;judgehadtwicerequestedthatTennesseeBureauofInvestigation
(TBI) investigate counsel for criminal conduct and had accused counsel and members of his
lawfirmoftamperingwithpollsforevaluatingperformanceoflocaljudgesandhavingknow-
ledge of a wiretap on judge's phone, counsel and judge had filed claims for misconduct
against one another, numerous hostile meetings had taken place between judge and lawyers
from counsel's law firm, and the public had knowledge of the antagonistic relationship.
Sup.Ct.Rules,Rule10,CodeofJud.Conduct,Canon3(E)(1).Beanv.Bailey,280S.W.3d798
(Tenn.2009).
Theappearanceoffairnessdoctrinerequiresajudgetodisqualifyhimselffromaproceed-
ing if the judge is biased against a party, or the judge's impartiality may reasonably be ques-
tioned.InreSwenson,244P.3d959(Wash.Ct.App.Div.12010).
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[ENDOFSUPPLEMENT]
6.MandatoryrecusalPersonalinterestinlitigation
Ajudgemustrecuseifheorsheisapartytothelawsuit,orisrelatedtoaparty,orother-
wisehasanydirectinterestintheoutcomeofthelitigation.[9]Therearenoprovisionsforex-
ceptions or waivers to this principle. It is fundamental to due process that no man judge his
own case, and therefore any judge who is named as a direct party to the litigation must step
aside. Similarly, if a judge's spouse or member of his family is a direct party to the lawsuit,
thejudgemaynotsit.Thereisseldomanyreasontoexaminethesedirectandobviouscircum-
stances.
Therearetwoareaswheretheissueofthejudgebeingapartymaynotleadtomandatory
recusal: (1) where it appears that the judge was named as a party for the sole purpose of ob-
tainingadisqualification,and(2)whereitappearsthatthejudgeorfamilymemberisapoten-
tialorremotememberoftheputativeclassinaclassactionsuit.
Sometimes a disappointed litigant will attempt to amend pleadings and include the judge
asalitigant.Sometimesalitigantnamesallofthejudgesasparties.Thecourtsgenerallyhold,
in such instances, that mandatory recusal is not required when it appears that the judge was
madeapartyafteranadverseruling,andfortheexpresspurposeofobtaininghisrecusal.One
courtobservedthatjudgeshoppingwouldnotbecountenancedundertheguiseofanapplica-
tion for recusal, even where the judge was listed in the caption as a named defendant.[10]
Also,ifallthejudgesarenamedasparties,themaximappliedbyonecourtwasthatifallare
disqualified,noneare.[11]
Wherethejudgeisapotentialmemberofaclassinaclassactionsuit,theanalysisutilized
isnotaddressedtohisstatusasaparty,butratherwhetherthecircumstancecreatesaprohib-
ited financial interest in the outcome of suit. If the judge's position as a member of the class
would give rise to a prohibited financial interest in the suit, recusal may be indicated. If the
object of suit is for relief other than financial, as in a civil rights class action to prevent dis-
crimination, it has been held that no mandatory disqualification results, notwithstanding the
factthatthejudgemaybedeemedapartybyvirtueofhisstandingasamemberofthedesig-
natedclass.[12]
Cases:
JudgewhoworkedandresidedinNewOrleansdidnothaveaninterestinlitigationarising
out of canal levee and/or floodwall breaches and subsequent flooding which occurred after
hurricanestruckNewOrleansthatwouldgiverisetoanappearanceofimpartialitywarranting
recusal,wherejudgewasabletoremainimpartial,sinceheandhiswifewereonlyminimally
impacted by the storm, and his daughter did not incur any economic loss as a result of the
flooding. 28 U.S.C.A. 455(a). Berthelot v. Boh Bros. Const. Co., L.L.C., 431 F. Supp. 2d
639(E.D.La.2006);West'sKeyNumberDigest,Judges 44.
Judge was not required to recuse himself in property owner's trespass action against uni-
versity based on the fact that judge had taught a law school class at university, where the
judge's association with the university ended ten days after owner filed suit and before any
hearing was held in the case. Kreuzer v. George Washington University, 896 A.2d 238, 208
Ed.LawRep.806(D.C.2006);West'sKeyNumberDigest,Judges 45.
An attorney's purposeful creation of a conflict of interest for the purpose of creating
grounds for recusal of a judge is a tactical abuse that will not be tolerated; tolerating such
gamesmanship would tarnish the concept of impartial justice. Office of Disciplinary Counsel
v.Au,107Haw.327,113P.3d203(2005),reconsiderationfiled,(July5,2005);West'sKey
NumberDigest,Judges 49(1).
Pastor'semployerwasentitledtorecusaloftrialjudgeinsuitarisingoutofsexualassault
bypastor;thejudgehadprovidedvictimwithcopyofincameraorderandcopiesofsensitive
documents in an ex parte appearance at least four hours before the employer had notice, she
statedinresponsetoemployer'spriorpetitionforinterlocutoryappealthattheSupremeCourt
wouldpermanentlyprecludeaninjuredpartyfromeverprosecutinganactionagainstachurch
ifitdecidedtoconcealthedocuments,shefeltslightedbytheemployer'scontentionsandre-
gardeditasuntruthfulandinstatementstoCourt,herstatementsindicatedthatshealreadyde-
termined fault and apparently assumed the position of advocate for the victim, and, thus, a
reasonableperson,knowingallofthecircumstances,wouldconcludethatjudgecouldnotsit
as an impartial administrator of justice. Code of Jud.Conduct, Canon 3(E)(1). Mississippi
UnitedMethodistConferencev.Brown,929So.2d907(Miss.2006);West'sKeyNumberDi-
gest,Judges 49(1).
Judge's failure to recuse himself despite subjective pronunciations that he held no bias
againstdefendantwasmanifesterror;priortoselectionascircuitcourtjudge,judgeservedas
countycourtjudge,andascountycourtjudgeheissuedsearchwarrantthatledtodefendant's
arrest and to indictment that brought defendant before judge in his capacity as circuit court
judge, attack on validity of warrant signed by judge was major element of defense, so judge
wasessentiallyaskedtoreviewhisformerrulingonhisissuanceofsearchwarrant,andjudge
formerlyprosecuteddefendantonchargeofaggravatedassaultwhichwasusedtochargede-
fendantashabitualoffender.CodeofJud.Conduct,Canon3(E).Brentv.State,929So.2d952
(Miss.Ct.App.2005),cert.denied,929So.2d923(Miss.2006);West'sKeyNumberDigest,
Judges 48.
Discussion of post-retirement law firm affiliation while case settlement not yet final:
Trialjudgewasstillparticipatingpersonallyandsubstantiallyinlitigationbetweentwomem-
bersofalimitedliabilitycompany(LLC),eventhoughjudgehadalreadyissuedasecondsup-
plemental decision directing remaining member to purchase terminated member's interest in
LLCfor$493,271,whenplaintiff'scounselapproachedjudgeandaskedifhewouldconsider
affiliatingwithcounsel'sfirmuponjudge'simpendingmandatoryretirement,andthustheen-
suingemploymentdiscussionsbetweenjudgeandplaintiff'scounselviolatedexpresstermsof
ruleofprofessionalconduct,wherepartieswerestillatoddsoverthetermsofthefinalorder
whentopicofemploymentwasbroached,andjudgehadtodecidebetweencompetingsubmis-
sions and positions; judge had to do more than enter an uncontested form of judgment. RPC
1.12(c). DeNike v. Cupo, 196 N.J. 502, 958 A.2d 446 (2008); West's Key Number Digest,
Judges 11(2).
Trial judge was not disqualified from hearing prisoner's action alleging civil rights viola-
tions, even though petition nominally sought money damages from trial judge; petition was
one of hundreds of proceedings without merit instituted by prisoner, pleading did not set out
colorablecausefordamagesagainstjudge,judgewasnameddefendantforpurposeofelimin-
ating particular judges as arbiters, and petition revolved around acts taken by trial judge in
connection with underlying criminal proceeding for which judge enjoyed judicial immunity.
Kennedyv.Staples,336S.W.3d745(Tex.App.Texarkana2011).
Trialjudge,whowasanameddefendantininmate'slawsuitagainstherandjudgesofdis-
trict court, as well as justices of Court of Appeals, seeking injunctive relief prohibiting all
judgesfromdiscriminating,hadnodirectpecuniaryorpersonalinterestincase,and,thus,was
notdisqualifiedfrompresidingovercase;inmate'spetitiondidnotseekmoneydamages,and,
thus,trialjudgehadnopecuniaryinterestincase,andevenifinmateobtainedajudgmentpro-
hibitingalljudges,includingtrialjudge,fromdiscriminating,itwouldnotaddoneadditional
burden or duty that trial judge did not already have imposed by law. Vernon's Ann.Texas
Const.Art.1,3a;Art.5,11;Vernon'sAnn.TexasRulesCiv.Proc.,Rule18b(1);V.T.C.A.,
GovernmentCodeTitle2,SubtitleGApp.B,CodeofJud.Conduct,Canon3(B)(6).Kennedy
v.Wortham,314S.W.3d34(Tex.App.Texarkana2010),reh'goverruled,(June29,2010).
A judge's rejection of a plea does not in and of itself become a "personal interest in the
outcomeofthematter,"withinmeaningofstatuterequiringrecusalwhenajudgehasasigni-
ficant personal interest in the outcome of a case. W.S.A. 757.19(2)(f). State v. Conger, 2010
WI56,325Wis.2d664,797N.W.2d341(2010).
[TopofSection]
[ENDOFSUPPLEMENT]
6.5.Personalinterestofjudge'sspouseorchild
Cases:
That judge's spouse had consulting contract with client of law firm that also represented
plaintiff's former employer, did not give judge or spouse any financial interest in employee's
discrimination case against former employer sufficient to warrant disqualification; judge's
spouse had a financial interest in client, not in its law firm, client was not party to plaintiff's
case, there was no evidence that law firm recommended judge's spouse to client, or that
judge'sspouse,asformerSecretaryofLabor,neededlawfirm'srecommendationtoconvince
client to hire her, and judge granted former employer's summary judgment motion on
plaintiff'sremainingclaimsalmosttwoyearsafterlawfirmwentbankrupt,andwellafterhis
spouse'sconsultingcontractexpired.28U.S.C.A.455(b)(4).O'Reganv.ArbitrationForums,
Inc.,246F.3d975(7thCir.2001);West'sKeyNumberDigest,Judges 42.
Reasonable person could not call into question bankruptcy judge's impartiality in avoid-
anceactionduetoplaintiff'sintenttocallasawitnessapartnerinlawfirminwhichjudge's
wifewasalsopartner,andthereforerecusalwasnotwarranted,giventhatlawfirmhadnoin-
terestinthelitigation,and,atmost,partnerwouldbeimpeachmentwitness,andthatmatteron
whichpartnercouldbearwitness,whetherChapter11debtor'sformerchiefexecutiveofficer
(CEO)hadknowledgeofdebtor'sshakyfinancialconditionandintentiontofilebankruptcyat
the time he obtained loan forgiveness in connection with his termination, was irrelevant to
claim that loan forgiveness was constructive fraudulent transfer, which required plaintiff to
prove that debtor was insolvent and did not receive reasonably equivalent value for transfer.
28 U.S.C.A. 455. In re Teligent, Inc., 358 B.R. 63, 47 Bankr. Ct. Dec. (CRR) 104 (Bankr.
S.D.N.Y.2006);West'sKeyNumberDigest,Judges 45.
NeitherSupremeCourtjusticenorherhusbandhadanypersonalbias,prejudice,orfinan-
cialinterestinoutcomeofautomobileinsurers'declaratoryjudgmentactionagainstMichigan
Catastrophic Claims Association (MCCA), and thus justice was not required by due process
considerations to recuse herself from hearing appeal in case; even though justice's husband
wasanattorneywhohadhandledcasesinthefieldofno-faultinsurancelaw,husbandwasnot
an attorney or employee of any party, and had no relationship with any party. U.S.C.A.
Const.Amend.14.U.S.FidelityIns.&Guar.Co.v.MichiganCatastrophicClaimsAss'n,484
Mich.1,773N.W.2d243(2009).
For purposes of determining whether recusal of Supreme Court justices was required in
civil action on basis of employment of their spouses with office of state Attorney General,
court rule governing recusal on basis of employment of a judge's spouse was consistent with
judicialconductrulesofAlabama,Arizona,Arkansas,Colorado,Connecticut,Delaware,Flor-
ida,Georgia,Hawaii,Illinois,Indiana,Iowa,Kansas,Kentucky,Maine,Maryland,Massachu-
setts, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Mexico,
New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island,
SouthCarolina,SouthDakota,Tennessee,Texas,Utah,Vermont,Virginia,Washington,West
Virginia,andWyoming,allofwhichdefinedobligationtorecuseintermsofwhetherjudge's
relativewaspartytoproceeding,anofficer,director,ortrusteeofaparty,wasactingaslaw-
yer in proceeding, was known by judge to have more than de minimis interest that could be
substantially affected by proceeding, or was, to judge's knowledge, likely to be material wit-
nessinproceeding.MCR2.003(B)(6)(a)-(d).Adairv.State,Dept.ofEduc.,474Mich.1027,
709N.W.2d567(2006);West'sKeyNumberDigest,Judges 45.
Trialjudgewasnotrequiredtorecusehimselfbasedonthefactthathisdaughterhadac-
cepted a summer position with the law firm representing one of the parties, where the judge
informed counsel of his daughter's job offer, no one objected to his continuing to act as the
presidingjudge,judge'sdaughterwasnotactingasalawyerinthecase,andtherewasnoin-
dication that the circumstances of her employment prevented the judge from being evenhan-
dedandunbiased.CodeofJud.Conduct,Canon3(C)(1)(a).InrePedestrianWalkwayFailure,
618S.E.2d819(N.C.Ct.App.2005);West'sKeyNumberDigest,Judges 46.
[TopofSection]
[ENDOFSUPPLEMENT]
7.MandatoryrecusalFinancialinterest
Unlessexceptedorwaived,ajudgemustrecuseifheorsheholdsanyfinancialinterestin
the subject matter in controversy or any interest in any party to the suit.[13] Typically, this
refers to holding stock or some type of investment in an entity which is a party to the litiga-
tion,butincludesanyfinancialinterestofanykind.
ASupremeCourtcasedecidedintheearly1900sindicatedthatdueprocesswasdeniedif
the judicial officer held "the slightest pecuniary interest" in the outcome.[14] Despite this
case,thefederaljudicialcodeusedtoprovidethatdisqualificationwasnotrequiredunlessthe
financialinterestwas"substantial."Thisledsomeofthecircuitcourtswhichexaminedtheis-
suepriortothe1970stomeasuretheextentofajudge'sstockholdingincorporatepartiesand
permitthejudgetositwherethefinancialinterestwasheldtobeinsubstantial.[15]
Afterthefederalstatutewasamendedin1974toincorporatethejudicialcode,andashas
been interpreted generally by the state and federal courts which have addressed the issue
since, the judge is required to step aside in the event of ownership of a financial interest,
either directly or as fiduciary for another, or in the event the judge is a director, advisor or
other participant in the affairs of the party, "however small" the financial interest might be.
The proscription on financial interest applies to the judge and to the judge's immediate fam-
ilyspouseandminorchildren.[16]
Themodernviewisprobablytypifiedbythecasewherethejudge'swifeheldstockinsev-
enof210,000membersoftheplaintiffclass,withapotentialrecoverytoher,ifplaintiffspre-
vailed, of $29.70 at most, and possibly as little as $4.23. Despite this insignificant financial
impact, it was held nevertheless that the judge's recusal was required.[17] One circuit ob-
servedthattheoccasionalsillyresult,whereajudgewasdisqualifiedonaccountofaninsigni-
ficantly small investment, was an acceptable price to pay for a rule that was straightforward
and spared judges from having to make decisions under uncertain standards apt to be misun-
derstood.[18]
There are four exclusions to the rule requiring recusal on discovery of any financial in-
terestinapartytothesuit:[19]
(1) Ownership of a mutual fund or common investment fund is not a disqualifying finan-
cialinterestastoanyofthestocksorsecuritiesheldbythefund,unlessthejudgeparticip-
atesinthemanagementofthefund.Ofcourse,thejudgewouldberequiredtorecuseifthe
commonfunditselfwasapartytothesuit.
(2)Holdingofficeinaneducational,religious,charitable,fraternalorcivicorganizationis
not a disqualifying financial interest as to any of the investments which may be held by
such organization. Again, the judge would be required to recuse if the organization was
theparty.
(3)Holdinganinsurancepolicyfromamutualinsurancecompany,orbeinganormalde-
positor in a mutual savings association is not a disqualifying financial interest in the or-
ganizationunlesstheoutcomeofsuitcould"substantiallyaffect"thevalueoftheinterest.
(4)Holdinggovernmentbondsorothergovernmentsecuritiesisnotafinancialinterestin
thegovernmentalentityissuingthesecuritiesunlesstheoutcomeoftheproceedingscould
"substantiallyaffect"thevalueofthespecificsecuritiesheld.
Evenifthecircumstancefallswithinoneoftheseexcludedareas,disqualificationmaystill
be in order. However, the disqualifying aspect would require proof of an actual impact upon
thejudge'sabilitytobeimpartial,orareasonablegroundtoquestionsuch;itisnotsufficient
thefoundachallengeuponthemereexistenceofthecircumstance.
Generally,simplemembershipinafraternal,civicoreducationalorganization,asopposed
to participation in the management of it, has been held not sufficient to require recusal.[20]
Accordingly, it was held that a judge's mere membership in the American Bar Association
would not require recusal where association was sued over allegedly improper connection
withalawschool.[21]
In criminal cases, even where there appears to be some financial impact, it may not be a
considereddisqualifyingelementunlessitcouldaffecttheoutcomeofthecase.Forexample,
it is not necessarily a disqualifying circumstance on the basis of financial interest where the
judge holds stock in a corporation which is alleged to be the victim of the crime.[22] It has
beenheldappropriate,however,forthejudgetoconsiderrecusalunderthe"appearanceofim-
propriety"standard.[23]
Thereareinconsistencies.Inonecase,theappellatecourtheldthatajudge'sownershipof
stockinanon-partycorporationwhichwasinvolvedinsimilarlitigationtothecaseatbarwas
not a disqualifying financial interest, absent a showing that the outcome of the case at bar
would directly affect the judge's investment in the other corporation. The burden was on the
movingpartytoshowtheconnection,andtoshowthatthejudge'simpartialitywascomprom-
ised.[24] Another court held that holding stock in a non-party corporation, which was once
partoftheventureinsuit,butwasnolonger,wouldrequirerecusal,absentashowingthatthe
outcomeofthecaseatbarwouldnotaffectthejudge'sinvestment.Here,theburdenwasheld
tobeonthejudgetoshowanabsenceofprejudicialimpact.[25]Thesetwocasesaredifficult
toreconcile.
Finally,considertheramificationsofhowexclusionsareappliedinthefollowingcase:
CaseIllustration:
Plaintiffs filed an action seeking an injunction against the redemption of certain municipal
bonds.Thejudge'swifeownedinterestsinseveralmutualfundswhichheldmunicipalbonds
as part of their investment portfolio, which the judge disclosed to the parties. Although the
bondsheldbythewife'smutualfundsweresimilartothebondswhichwerethesubjectofthe
suit, none were the type actually involved in the litigation before the challenged judge.
Neither the judge nor his wife participated in the fund management. The funds themselves
were not parties to the suit. Nevertheless, the defendant moved to disqualify the judge, al-
leging that the value of municipal bonds generally, and therefore the value of the judge's
wife's fund interest in particular, would be affected by the outcome of the suit. The judge
deniedthemotionfordisqualificationinarulingfromthebench,andthenproceededtohear
motions on a number of interlocutory matters in the case. The next day, before the judge is-
suedrulingsonanyofthemotionswhichhadbeenarguedthedaybefore,thedefendantfiled
a petition for writ of mandamus in the appellate court, seeking to overturn the judge's denial
ofthemotionfordisqualification.Aweeklater,thejudgeenteredordersonallthemotionshe
hadheard,andthenenteredavoluntaryorderofrecusal.Hestatedinhisvoluntaryorderthat
he wished to avoid even the appearance of impartiality, and therefore was stepping aside. In
deciding the petition for writ of mandamus, the appellate court held that the issue of recusal
was moot at the outset, because the judge had voluntarily stepped aside, but that the issue of
whether the orders on the motions which he entered were valid or void remained. The court
heldthatifthewritofmandatewaswelltaken,thenallactionsbythejudgeafterthepetition
for the writ was filed were invalid would be set aside. However, if the petition was not well
taken,thenalloftheactionsbythejudgepriortohisvoluntaryrecusalwerevalid,andtheor-
derswouldnotbesetaside.Inthiscase,thecourtheldthatthepetitionformandamuswasnot
welltaken.Thejudge'swife'sownershipoffunds,whichheldbondsaspartofaninvestment
portfolio,wasclearlywithintheexceptionpertainingtomutualfundsandcommoninvestment
funds,anddidnotconstituteadisqualifyingfinancialinterest.Thecourtfurtherobservedthat
therewasnoreasonforthejudgetovoluntarilyrecusehimselfuponthegroundsofanappear-
anceofimpropriety,onthemerechallengebythedefendantsthattheybelievedhisimpartial-
ity might reasonably be questioned, since there was no fact basis to such allegation. A claim
of "appearance of impropriety" must be based upon something, the court held, otherwise the
claim would become a form of peremptory challenge. The court concluded that the judge
should not have recused himself at all. Therefore, the court affirmed all of the interlocutory
orders,vacatedtheorderofrecusalandreturnedthecasetothedistrictcourtwiththeobserva-
tionthatitcouldbereassignedtotherecusedjudgeinthediscretionofthetrialcourtexecut-
ivecommittee.[26]
Insorulingthecircuitcourtobservedasfollows:
Ajudgemaydecideclosecallsinfavorofrecusal.Butfirsttheremustbeaclosecall.A
districtjudgeisobligatednottorecusehimselfwithoutreasonjustasheisaobligated
torecusehimselfwhenthereisareason.[27]
The point of all this is that, once the circumstances move beyond the most obvious of
events,brightlinesbegintoblur.Anytangentialcircumstancesuggestingabasisfordisquali-
ficationuponaperceivedpersonalinterestinthecaseoritsoutcomeonthepartofthejudge
willrequireacasebycaseexamination.
8.MandatoryrecusalFamilialrelationships
The degree of relationship requiring recusal in most jurisdictions is to the third degree of
eitherthejudgeorthejudge'sspouse.Thisistheruleinthecodeofjudicialconduct,[28]fed-
eralstatutes,[29]andmoststates.[30]Thecommonlawstandardandcodeofjudicialconduct
onlypertaintotheexistenceofafamilialrelationshipwithaparty.Thefederalstatuteextends
thistotheexistenceofafamilialrelationshipwithanylawyerforanyparty.[31]Thecaselaw
extends the federal standard to include any attorney who has had any connection with the
case,whetherornottheattorneyisactuallyendorsedonthepleadingsascounselofrecord.In
an extreme example, a judge was required to recuse himself when it was learned that his
daughter had participated in certain early depositions in a case, even though the daughter's
roleinthedepositionswasminimalandthefirmshewasworkingforwasnolongerinvolved
inthecase.[32]
Ithasbeenheldthatthelawyer-relativemustactuallyparticipateinthecasebeforerecusal
is mandated and that just being in the same firm is not sufficient.[33] Further, the circum-
stance may be deemed cured if the firm employing the relative-lawyer withdraws from the
case.[34] On the other hand, it has been held that where the judge's brother was the senior
partnerofafirmrepresentingaparty,andeventhoughthebrotherwasnotparticipatinginthe
lawsuit,thebrotherhadbothafinancialinterestandanonpecuniaryinterestintheoutcomeof
thecasewhichwasimputedtothejudge,requiringdisqualificationonothergrounds.[35]But
recusal was not mandated where the judge's daughter was not working on the case, even
though the daughter was designated as a partner in the firm. The court observed that the
daughterwasa"salariedpartnerratherthananequitypartner,"andthereforewouldnotbeim-
pacted by the outcome of the litigation. There was no explanation of what a salaried partner
was.[36]
Fromapracticalstandpoint,judgesfrequentlyrecusethemselvesvoluntarilyfromparticip-
atingincasesinvolvinglawfirmsinwhichrelativesaremembers,whethertherelativeisin-
volved in the case or not, under the general catch-all basis of avoiding any reasonable chal-
lengetotheirimpartiality.Butthelawisquiteclearthatthejudgeisnotrequiredtodosoun-
less the relative is participating in the case, or has a financial interest in the outcome of the
case,orunlesssomeotherelementofinfluenceexists.Again,inallbutthemostobvioussitu-
ations,acasebycaseexaminationwillberequired.
Cases:
Circuitjudge,whosewifewastheexecutivedirectoroftheAmericanCivilLibertiesUni-
on of Southern California (ACLU/SC), was not required to recuse himself from action chal-
lenging the constitutionality of Proposition 8 of the California Constitution, a California
voter-enactedconstitutionalamendmentrestrictingvalidmarriageasonebetweenamananda
woman,duetoACLU/SC'slitigationactivities,sincewifedidnothaveaninterestthatcould
be affected by outcome of case; ACLU/SC's past litigation activities in California state court
cases did not involve the federal constitutional issue raised in case, fact that wife attended
meetingwithaplaintiff'slawyerpriortofilingofactionatwhichACLU/SCdeclinedtosup-
port lawsuit did not provide cause for recusal, and the two amicus briefs which ACLU/SC
joined were among 24 filed in district court and were not cited in any way in district court's
findingoffactandlaw.28U.S.C.A.455(b)(5)(iii).Perryv.Schwarzenegger,630F.3d909
(9thCir.2011).
Conduct of state circuit court judge, in jury-waived trial of felony assault charge against
state prison inmate, in asking prosecutor and defense attorney not to reveal to inmate that
judge'sbrotherworkedintheprisonasprisonguard,violatedjudicialconductrulesprohibit-
ingfamilyrelationshipsfrominfluencingjudicialconductandprovidingapartyandalawyer
with the right to be heard; after judge convicted inmate of felony assault, inmate obtained
post-convictionrelief,basedonassertionthatifjudge'sfamilyrelationshipwithprisonguard
had been disclosed to inmate, he would have sought recusal of judge. Code of Jud.Conduct,
JR1-101(E),JR2-102(A).InreInquiryConcerningMendiguren,342Or.498,154P.3d720
Failurebyfamilycourtassistantjudgetosuasponterecuseherself,incontestedchildcus-
todyproceedinginitiatedbyfatherinwhichhersisterwasappointedguardianadlitem(GAL)
bythepresidingjudge,requiredthatthecourt'scustodydeterminationbevacatedandcasere-
mandedforanewtrial,thoughassistantjudge'ssignatureonthecustodyorderrepresentedap-
provalofthefactualfindingsonly,asassistantjudge'svotewasnotmeresurplusage,itcould
notbepresumedthatthefindingswouldbethesameiftheyhadbeenwrittenbythepresiding
judge sitting alone, assistant judge knew of the conflict but failed to disclose it, family court
characterized the case as difficult and troubling and reached the result recommended by the
GAL,fatheronlylearnedthattheGALwastheassistantjudge'ssisterafterorderwasissued,
and the appearance of influence was significant. Code of Jud. Conduct, Canon 3, subd. E(1).
Velardov.Ovitt,933A.2d227(Vt.2007);West'sKeyNumberDigest,AppealandError
1035.
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[ENDOFSUPPLEMENT]
9.MandatoryrecusalPriorassociationwithcase
The third general area requiring mandatory recusal, regardless of the actual impact of the
circumstances,existswherethejudgehadatonetimeoranotheractedascounselforaparty
withrespecttothependinglitigation,orisorwasamaterialwitnessconcerningit.
Both the federal statute and code of judicial conduct extend this ground for recusal to in-
cludeanysituationwhereaformerassociateofthejudgerepresentsorrepresentedapartyin
the present litigation while the judge was associated with such lawyer, or such former asso-
ciate was or is a material witness concerning the case.[37] In addition, the material witness
circumstance requiring recusal extends not only to the judge and former partners and asso-
ciates,butalsotomembersofthejudge'sfamily,tothethirddegreeofrelationship.[38]
An important feature of disqualification based upon former client relationship is that the
judge must have acted as counsel in some facet of the instant litigation. Although frequently
judges will voluntarily recuse themselves when former clients appear as parties, it is not
grounds to demand mandatory recusal when the prior representation was in connection with
other matters. Clearly, recusal may still be indicated if the prior association with the party is
such that the judge's impartiality might reasonably be questioned, and perhaps other factors.
But a prior client relationship standing alone is usually held not sufficient to constitute
grounds for a mandatory recusal, unless that prior relationship was connected to the present
litigation.[39]
A pesky area is where the judge was once a prosecutor, and cases, which were in some
stage of prosecution while he or she was in that capacity, begin to surface in court after the
judge'selevationtothebench.Thesecircumstancesoccurfrequently,andhaveledtoavariety
of decisions on the issuesome holding that recusal is mandatory, others concluding not. It
appears in this area that a showing must be made that the judge was an actual participant in
theinvestigationorformationoftheprosecutioncasebeforerecusalismandated.Basedupon
the cases cited, it is probably not sufficient if the judge was only involved in procedural or
tangentialmattersasaprosecutor,anditisnotsufficienttomerelyallegethatthejudgewasa
memberoftheprosecutor'sofficeatthetimeoftheformationofcharges.Thesamerationale
wouldappeartoapplytoothergovernmentlegalagencies.[40]
It is clear that it is the individual involvement of the judge that is examined, not the in-
volvement of the office. The offices of county prosecutors, United States attorneys and state
attorney generals are not considered the same as private law firms, where mere association
withtheofficecanbeconsideredadisqualifyingconsiderationifanyonefromtheprivatefirm
wasinvolvedwiththeinstantlitigation.[41]
Cases:
Jurymisconductnecessitatingnewtrialmayhaveinvolvedcourtroomstaff:Preserva-
tionofanappearanceoffairness,inretrialofakidnappingresultingindeathprosecutionne-
cessitated by the extraneous appearance of unadmitted evidence in the jury room, warranted
reassignmenttoadifferentjudgeonremand,eventhoughcurrentjudgewasfamiliarwiththe
case and had already ruled on various issues; government had previously sought recusal on
basis that the hearing on how the evidence got into the jury room would require judge to
weighthecredibilityofhiscourtroomstaff,andjudgehadsubsequentlyextensivelycriticized
thegovernmentteamanddecidedtherewasintentionalmisconductonthepartofanAssistant
U.S.Attorney(AUSA).U.S.v.Lentz,383F.3d191(4thCir.2004);West'sKeyNumberDi-
gest,Equity 1192.
District court did not abuse its discretion in denying defendants' motion for recusal of
judgeinprosecutionformailfraudbasedonjudge'sparticipationintheirpriorcivilactionin-
volving debt-elimination program that was focus of mail fraud charges; judge's dismissal of
defendants' prior civil action, his order of sanctions against their attorney, and his referral of
matter to United States Attorney's Office were judicial actions and did not evidence any bias
onjudge'spart.28U.S.C.A.455(a),(b)(1).U.S.v.Johnson,610F.3d1138(9thCir.2010).
Consultation provided by partner in judge's former firm, while judge was member, as to
antitrustaspectsofnewlyemergingdigitalversatiledisc(DVD)technologyforrecordingmo-
tionpicturesforhomeviewing,didnotrequirerecusalinclient'ssuitclaimingthatdissemina-
tion on Internet of computer program capable of breaking code designed to frustrate copying
ofdiscswasviolationofDigitalMillenniumCopyrightAct(DMCA),whenprograminques-
tionwasdevelopedandDMCAwaspassedafterjudgeleftfirm.17U.S.C.A.1201etseq.;
28 U.S.C.A. 455(a). Universal City Studios, Inc. v. Reimerdes, 104 F. Supp. 2d 334
(S.D.N.Y. 2000), on reconsideration, 2000 WL 1016649 (S.D.N.Y. 2000); West's Key Num-
berDigest,Judges 46.
Knowledge of case in bench trial: Defendant was not entitled to recusal of judge from
bench trial on various charges including rape, on basis of judge's knowledge of defendant's
priorrapeconvictions,wherecounseldiscussedwithdefendantthejudge'sknowledgeofprior
convictions, judge requested complete colloquy in defendant's presence and instructed that it
examinedefendantastojudge'sknowledgeofdefendant'sentirebackgroundincase,defend-
ant acknowledged in colloquy that he was waiving jury trial of his own free will with know-
ledgethatjudgehadrevieweddefendant'spre-sentencereportandmentalhealthexamination,
judge questioned defendant at end of colloquy, and defendant again confirmed that he knew
that judge was aware of his prior convictions. Com. v. Tainan, 734 A.2d 886 (Pa. Super. Ct.
1999);West'sKeyNumberDigest,Judges 49(1).
Tosupportclaimofbiasbasedonjudge'spresidingoverpriorproceedings,itmustappear
fromaffidavitthat,apartfromjudge'sanalysisofissuesoffactorlawinpriorproceedings,he
had such a bias in favor of one party, or prejudice against the other, that he could not fairly
andimpartiallydetermineissues;thatis,affidavitmustallegefactsindicatingthatjudge'sbe-
haviortowardpartyduringpriorproceedingswasextreme,andreflectedadeep-seatedantag-
onismtowardpartyrequestingrecusal.RulesCiv.Proc.,Rule63(b).State,InInterestofM.L.,
965P.2d551(UtahCt.App.1998).
[TopofSection]
[ENDOFSUPPLEMENT]
9.5.MandatoryrecusalInvolvementinmediationorsettlementnegotiations
Cases:
When judge has participated in mediation or settlement efforts, or has otherwise received
confidential information from parties in a case, judge is conclusively presumed to have re-
ceived client confidences and, as with the rule governing lawyers, he may not participate in
thecase,normayhislawfirm.ABARulesofProf.Conduct,Rule1.10(a).InreCountyofLos
Angeles,223F.3d990(9thCir.2000);West'sKeyNumberDigest, AttorneyandClient
21.15.
Local rule providing that judge holding a settlement conference shall not communicate
discussionsduringtheconferencebacktothetrialjudgedidnotrequiredisqualificationoftri-
al judge who conducted settlement discussions and obtained assessments as to value of case,
as rule applied only where case had been formally referred to another judge for settlement
conference;inaddition,bothpartieswaivedanyapplicationofruleinagreeingtotenderspe-
cificsettlementfigure.28U.S.C.A.455(a);FairLaborStandardsActof1938,1etseq.,
29 U.S.C.A. 201 et seq.; U.S. Dist. Ct. Rules D. Utah, Rule 16-3(d). Horrocks v. Daggett
County, 460 F. Supp. 2d 1274 (D. Utah 2006), opinion issued, (Oct. 30, 2006); West's Key
NumberDigest,FederalCivilProcedure 1921.
Allegationsconcerningtrialjudge'sactionsinplaintiff'slegalmalpracticeactionweresuf-
ficient to raise a reasonable inference that trial judge was biased or prejudiced and required
disqualification;trialjudgeactedassettlementjudgeinunderlyinglitigationandinthatcapa-
cityreceivedaconfidentialsettlementstatementsettingforththestrengthsandweaknessesof
plaintiff'scase,trialjudgehadexpressedhisopinionsaboutplaintiff'scaseandstatedhisbe-
lief to value of plaintiff's case, and trial judge apparently expressed his opinion and bias re-
garding plaintiff's damages. Rules Civ.Proc., Rules 97, 121(c), Standard 1-17; Code of
Jud.Conduct, Canon 3, subd. C(1). Tripp v. Borchard, 29 P.3d 345 (Colo. Ct. App. 2001);
West'sKeyNumberDigest,Judges 47(2).
While appellate judges reviewing a transcript may understand that trial judges have a
crowdeddocketandfrequentlymakestatementstoencouragethepartiestosettle,itisnotthe
appellatejudges'perspectivethatcontrolswhetherdisqualificationoftrialjudgeiswarranted,
butratherwhetherthefactsallegedwouldplaceareasonablyprudentlitigantinfearofnotre-
ceivingafairandimpartialtrial.West'sF.S.A.38.10.Valdes-Fauliv.Valdes-Fauli,903So.
2d214(Fla.Dist.Ct.App.3dDist.2005);West'sKeyNumberDigest,Judges 49(1).
Trialjudgewasnotrequiredtorecusehimselfduetothefactthathestronglyencouraged
thepartiestoreachasettlement.InrePedestrianWalkwayFailure,618S.E.2d819(N.C.Ct.
App.2005);West'sKeyNumberDigest,Judges 49(1).
[TopofSection]
[ENDOFSUPPLEMENT]
10.MandatoryrecusalFormerlawclerks
Therelationshipbetweenthejudgeandthelawclerkpresentsaseparateconsideration.A
number of cases examine the issue of whether it is grounds for disqualification when the
judge'sformerlawclerkappearsascounselforapartyafterleavingthejudge'semployment,
where the judge's current law clerk accepts employment from a firm representing a party in
currentlitigation,andwhereapresentorformerlawclerkdevelopsaclosepersonalorfamili-
alrelationshiptoapartyorparty'scounsel.
In most instances, the circumstance has been held insufficient, when standing alone, to
warrantrecusal.Inasurveyoffederalcases,forexample,itwasnoterrortofailtorecuseon
basisthatprosecutorwasformerlawclerkofthejudge,inabsenceofashowingofactualbi-
as;[42]itwasnoterrortofailtorecusewhenajudge'slawclerkobtainedemploymentwitha
firmrepresentingoneoftheparties,wherethelawclerkdidnotworkonthecase;[43]andit
wasnoterrortofailtorecusewhenitdevelopedthattwoofthejudge'slawclerkshadbroth-
erswhowererepresentingplaintiffsinamasstortcasebeforethecourt.[44]
Thereareexceptions,however,andthecasesindicatethateachwasdecidedonthepartic-
ular facts. In the case where the law clerks had brothers representing plaintiffs, the appellate
courtemphasizedthatitwasamasstortcaseinvolvinghundredsoflawyers,andthatanypo-
tential for conflict was weak and remote.[45] The suggestion is clear that if the case was a
smallercasewithfewerlawyers,therebyincreasingtheinfluenceofthelawclerks'relatives,
thesituationmightbevieweddifferently.
Where the judge's law clerk is in the process of obtaining or seeking future employment
withoneofthefirmsappearingincurrentlitigation,theappellatecourtshaveemphasizedthat
thejudgemustimmediatelyremovetheclerkfromthecaseassoonasheorshelearnsthatthe
clerk's interest in employment with the firm began, and that the two should have no further
conversations about case.[46] Several cases have held that if the law clerk was not promptly
walled off from the case, recusal would be indicated.[47] Each case requires analysis of the
particularcircumstancespresent.
11.MandatoryrecusalJudgeasmaterialwitness
Theobviouscircumstance,wherethejudgeisadirectandmaterialfactwitnesstothecore
events of a law suit in a non-judicial capacity, requires little analysis. The problems arise
whenitisallegedthatthejudgemaybeawitnesstosomefacetofthecaseinajudicialcapa-
city.Thisrequiresashowingthatthematteruponwhichthejudgewillormaytestifyisma-
terialtotheproceedingandissuchthatitwouldbeinimicaltothejudge'sabilitytoremainon
thecase.[48]
Theinstancesforajudgetobeadirectwitnesstoamatterfromtheperspectiveofhisjudi-
cialofficeisrare.Generally,theonlyoccasionforajudgetobeatrialwitnessinajudicialca-
pacityiswhereitisnecessarytoreconstructorcompletearecordonsomeproceeding,ores-
tablishsomeproceduralfactsnotintheexistingrecord.Wherethisinstancearisesinthemidst
of a case before the judge, the judge would have no occasion to insert the matter by way of
testimony;thejudgemerelystatesfortherecordthefactoroccurrencenecessarytocomplete
the record. Where the instance comes up in a collateral proceeding before a different judge,
thefirstjudgemaysupplytheinformationbytestimonyoraffidavitbuttheissueofdisquali-
ficationisnotpresented.
Theoneareawherethesubjectofrecusaldoescomeupiswhereaseparatematterrelated
toapreviousproceedingisbroughtbeforethesamejudge.Forexample,afrequentchallenge
inpostconvictionrelieforhabeascorpusproceedingsisthatthetrialjudgeisorwillbeama-
terialwitnesstosomeissuewhichoccurredduringthemaincase,andwhichwarrantsthedis-
qualification of the trial judge to sit on the post conviction issues. Usually, it is held that the
trial judge need not consider an application for disqualification upon this ground, either be-
causethejudgecannotbecalledtotestifyastothecourt'sjudicialactions,[49]orbecausethe
suggestedtestimonyonasubjectrelatedtothepriorproceedingisdeemednotmaterialinthe
contextoftherecusalstatutes.
CaseIllustration:
Defendantenteredintoapleaagreementwiththegovernmentconditioned,inpart,onthegov-
ernment's agreement to prevent her deportation to Switzerland. Defendant filed a writ of
habeas corpus, contending that the government failed to deliver on this part of the bargain,
and seeking enforcement of the agreement. The trial judge granted the petition, and the gov-
ernment appealed. The Swiss government intervened on appeal and contended that the trial
judgeshouldhaverecusedhimselffromthehabeascorpusproceeding,sincehewasamaterial
witnesstothemakingofthepleaagreementinthefirstinstance.Theappellatecourtobserved
thatunderfederalstatutes,[50]writsofhabeascorpuswereintendedtobeheardbyjudgesfa-
miliarwiththefactsofthecase,whocouldthenrelyupontheirownknowledgeofthefacts.
The court observed that this was facially inconsistent with the disqualification statute.[51]
However,itconcludedthatthetwostatuteshadtobereadincontext,andthatarationalefor
harmonizingtheapparentlyinconsistentconsiderationscouldbeaccomplishedbytheconclu-
sionthattestimonyfromthejudgewasnotmaterial.Sincethejudgewasexpectedtobefamil-
iar with the case and could make findings based upon his own knowledge of the case, it was
notnecessarytoofferhistestimonyandhewouldnotbea"materialwitness"undertherecus-
alstatute.Therefore,thecircumstancewasnotwithintherecusalstatutesanddisqualification
wasdenied.[52]
12.Discretionarygroundsfordisqualification
Theremaininggroundsforrecusalincludetheplethoraofreasonswhichmightarisefora
judgetostepaside,butwhicharenotnecessarilyautomaticorobviousuponamereshowing
oftheirexistence.Thesegroundsallrequireaparticularshowingthatthebasisallegedforthe
disqualification will, in fact, have some improper influence over the judge or the decision to
berendered,orthatthecircumstancesaresuchaswouldleadareasonablepersontoquestion
theimpartialityofthejudge.
Thegroundswhichmayormaynotrequirerecusal,dependinguponcircumstances,degree
andimpactonthecasemaybecategorizedintothreebroadclassifications:
(1)Theexistenceofapersonalbiasorprejudicefororagainstapartyorcounsel;
(2) Situations where personal knowledge of disputed evidentiary facts might reasonably
affectthejudge'simpartialityintheproceeding;and
(3) Personal circumstances where a judge's impartiality might reasonably be questioned.[
53]
The trial judge is not automatically disqualified upon the presentation of a challenge in
these areas, even if the existence of the event or circumstance giving rise to the allegation is
true, as is the case in the mandatory areas of recusal. In these discretionary areas, it must be
shownnotonlythatthecircumstanceoreventexists,butalsothatsuchcircumstanceorevent
will, or is reasonably likely to, influence the judge in a disqualifying way. The burden is on
thepartyseekingdisqualificationtomaketheshowing.[54]
Cases:
Ajudgeispresumedtobeimpartial,andthepartyseekingdisqualificationbearsthesub-
stantial burden of proving otherwise. 28 U.S.C.A. 455(a), (b)(1). American Prairie Con-
structionCo.v.Hoich,594F.3d1015(8thCir.2010).
There was no evidence in the record to controvert the judge's "highly personal" analysis
thathewasnotthreatenedbydefendant'sactionsinobtaininginformationaboutjudgeandhis
family, as would provide judge with subjective basis for recusal in proceedings revoking de-
fendant's supervised release. 28 U.S.C.A. 455(b). U.S. v. Spangle, 626 F.3d 488 (9th Cir.
2010).
Recusalofdistrictjudgewasnotwarrantedinsecuritiesfraudaction,despitethirdparty's
testimonythatdefendanthadthreatenedtomurderjudge,wheretherewasnoevidencecorrob-
oratingthirdparty'smurderplotstory,defendantdeniedmakingthreat,therewasnoevidence
that defendant had taken any steps in pursuance of plot, judge's post-threat behavior did not
indicate any lack of impartiality, and defendant had lengthy history of delay. 28 U.S.C.A.
455(a).S.E.C.v.Bilzerian,729F.Supp.2d19(D.D.C.2010).
Factthatcourtservedoversixteenyearsearlierasastatecourtjudgeinthesamejudicial
district as judges identified as potential witnesses in case, and thus may have been a former
colleague of potential, non-party witnesses did not constitute grounds warranting recusal in
employment discrimination action brought against city. 28 U.S.C.A. 144, 455. Delgado-
O'Neilv.CityofMinneapolis,745F.Supp.2d894(D.Minn.2010).
Filingofsuitagainstjudgebylitigantisnotsufficientbasisforrecusal.U.S.v.Ward,760
F.Supp.2d480(D.N.J.2011).
District judge's prior employment with United States Department of Justice did not war-
ranthisrecusalinfraudactionagainstUnitedStates.28U.S.C.A.455.Zlotnickv.Hubbard,
572F.Supp.2d258(N.D.N.Y.2008);West'sKeyNumberDigest,Judges 45.
Inteachers'actionagainststateeducationdepartment,city,city'sdepartmentofeducation,
and arbitrators who had presided over teacher disciplinary hearings, no grounds justified
teachers' motion for recusal of magistrate judge and district court judge, despite teachers' al-
legationsofnumerousinstancesoftheirperceptionsoferroneousandunfairrulingsbymagis-
trate judge and purported acquiescence by district judge, since motion merely attempted to
shift blame and "shoot messenger" by refusing to accept stark and unpleasant reality of mes-
sagerepeatedlyconveyedbyjudgesthatthereweresufficientreasonsgroundedinlawtoex-
plainwhyteachers'claimsdidnotgiverisetoviolationsofconstitutionalorotherfederallaw.
Adamsv.NewYorkStateEduc.Dept.,752F.Supp.2d418(S.D.N.Y.2010).
Fact that defendants were counsel for, and member of, environmental group that had un-
successfullysoughtpreliminaryinjunction,inseparatematter,prohibitingUnitedStatesNavy
fromconductingbombingexercises,fromjudgewhowastopresideandactasfinderoffactat
defendants'trialfortrespassontonavalinstallationdidnotrequirerecusalofjudge;objective,
knowledgeablememberofpublicwouldhavenoreasonablebasisfordoubtingjudge'simpar-
tiality. 28 U.S.C.A. 455(a). U.S. v. Kennedy, 148 F. Supp. 2d 147 (D.P.R. 2001); West's
KeyNumberDigest,Judges 47(2).
Generally,recusalongroundsofpartialityarisesinoneoftwocircumstances:whenjudge
formsopinionoflitigantsbasedoninformationlearnedoutsidecourseofjudicialproceedings
(the "extrajudicial source" doctrine), or when judge whose information is limited to that re-
vealedduringcourseofjudicialproceedingsformsafavorableorunfavorableopinionsoex-
treme that fair judgment appears impossible (the "pervasive bias" exception). 28 U.S.C.A.
455.InreHaas,292B.R.167(Bankr.S.D.Ohio2003);West'sKeyNumberDigest,Judges
49(1).
TrialjudgepresidinginFamilyinNeedofServices(FINS)proceedingswasnotrequired
torecuseherself,despiteherstatementthatfathergavea"badanswer"tothequestionofwhy
he consented to his sixteen-year-old daughter's marriage; trial judge told the parties that her
statementinnowayaddressedthemerits,court'sbeliefthatfathermadeabadchoicewasnot
anindicationoffuturerulings,andjudgeexplainedthatshewouldapplythelawinafairand
impartial manner. Porter v. Arkansas Dept. of Health & Human Services, 374 Ark. 177, 286
S.W.3d686(2008).
Defendants' were not entitled to recusal on the basis of trial judge's ex parte communica-
tions with plaintiffs' counsel, during which he told counsel that he was finding in favor of
plaintiffsandaskedcounseltoprepareaprecedent;plaintiffs'counselindicatedthattherewas
notadiscussionofthecase,defendantsnevercomplainedthatthetrialjudgeactedimproperly
inanywayorexhibitedanyprejudicialbiasinthecaseuntiltheylearnedofjudgmentagainst
them,andtherewasnothinginthefinalorderthatwasnotinevidence. PowhatanCemetery,
Inc.v.Colbert,104Ark.App.290,292S.W.3d302(2009).
Husbandhadareasonablefearthathewouldnotreceiveafairtrialofdissolutionofmar-
riageactiononaccountoftheprejudiceofthetrialjudgeand,thus,wasentitledtodisqualific-
ationoftrialjudge,wherehusbandoverheardjudgeadvisinghusband'scounselto"siton"his
client, judge asked one of husband's experts how he expected to get paid by husband, and
judge,whowasunreceptivetohusband'sevidenceofwife'soveruseofdrugs,wasarrestedbe-
forethetrialconcludedforusingmarijuanainapublicpark.West'sF.S.A.38.10.Moskow-
itzv.Moskowitz,998So.2d660(Fla.Dist.Ct.App.4thDist.2009).
Comments made after hearing evidence: Comments made by judge in summary judg-
ment order, that acts of real estate agent were more akin "to a used care salesman than to a
professional"realestateagent,andthatagent"simplywentout,sawagooddeal,andbought
itoutfromunder"hisclients,didnotrequirerecusalofjudgeinprospectivepurchasers'action
againsttheirrealestateagentforpurchasingpropertythatpurchasershadallegedlyexpressed
interest in, since comments did not rise to level of personal attack on agent, and judge made
comments only after hearing evidence. Doyle v. Maruszczak, 834 So. 2d 307 (Fla. Dist. Ct.
App.5thDist.2003);West'sKeyNumberDigest,Judges 49(2).
Trialjudgewasnotrequiredtosuasponterecusehimselfwhenvictimreferredtojudgeby
name in connection with temporary protective order she had obtained against defendant, in
prosecution for family violence aggravated assault and battery, pursuant to provision of code
of judicial conduct requiring judges to disqualify themselves in any proceeding where their
impartialitymightreasonablybequestioned,absentanyconductorremarkbytrialjudgethat
wouldmeetthisstandard.CodeofJud.Conduct,Canon3(E)(1).Hargrovev.State,681S.E.2d
707(Ga.Ct.App.2009).
Judge's bias or prejudice is shown where there is active personal animosity, hostility, ill
will, or distrust towards the defendant. People v. Shelton, 340 Ill. Dec. 840, 929 N.E.2d 144
(App.Ct.1stDist.2010).
Personal knowledge: Trial judge was not required to recuse himself in eminent domain
proceeding that was brought by state Department of Transportation (DOT), although judge
livednearpropertyatissueanddrovepastpropertyatleasttwiceaday;generalknowledgeof
locationofpropertywasnotsortofpersonalknowledgeofdisputedevidentiaryfactsthatre-
quired recusal, there was no showing that judge had interest that could be substantially af-
fected,andevenifjudgeacceptedfaxesfromDOTbutnotfrompropertyownersandcontin-
uedscheduledhearingbysigningDOT'sproposedorder,judge'sactionsdidnotconstituteim-
proper ex parte communications. Trial Procedure Rule 79(C)(3, 4); Code of Jud.Conduct,
Canon3,subd.E(1)(a).Hassv.State,Dept.ofTransp.,843N.E.2d994(Ind.Ct.App.2006),
transferdenied,(Sept.19,2006);West'sKeyNumberDigest,Judges 49(1).
Personal knowledge: Judge's general knowledge of the location of property that is the
subject of an eminent domain action in that judge's court is not the sort of "personal know-
ledge" requiring recusal under the Code of Judicial Conduct, which requires recusal when
judge has personal knowledge of disputed evidentiary facts. Code of Jud.Conduct, Canon 3,
subd. E(1)(a). Hass v. State, Dept. of Transp., 843 N.E.2d 994 (Ind. Ct. App. 2006), transfer
denied,(Sept.19,2006);West'sKeyNumberDigest,Judges 49(1).
Allegedrelationshipbetweenfatherandtrialjudge inchildcustodycasewasnottype
requiringmandatorydisclosureorrecusal,whereallegedrelationshipincasearosefromfath-
er's previous position as director of budget and research for parish council and judge's previ-
ousemploymentwithparishattorney'sofficeandasanadministrativehearingofficerforpar-
ish, mother did not file motion to recuse judge until after judgment decreeing 50/50 custody
hadbeenrendered,father'scounselalludedinopencourttoexistenceofsomekindofconnec-
tionbetweenfatherandjudge,butaconnectionwasneveractuallyestablished,andjudgead-
mittedhe"knew"fatherandrecognizedtwowitnessesincourt.LSA-C.C.P.Art.151.Hughes
v.Talton,845So.2d1098(La.Ct.App.5thCir.2003),writgranted,judgmentrev'd,847So.
2d 1274 (La. 2003), reh'g granted in part, 852 So. 2d 1017 (La. 2003); West's Key Number
Digest,Judges 45.
Impartiality of trial court could not reasonably be questioned based on fact that judge's
brotherrenderedlegalservicestodefendantdriverseventeenyearsbeforetrialandtoanother
woman presumably related to defendant ten years before trial so as to warrant recusal of
judge. Md.Rule 16813, Code of Jud.Conduct, Canon 3(D)(1). Abrishamian v. Barbely, 981
A.2d797(Md.Ct.Spec.App.2009).
Trial court did not abuse its discretion in denying former employee's emergency motion
for recusal, in suit commenced against her by employer alleging misappropriation of trade
secretsandseekinginjunctiverelief,astherewasnoevidenceoftrialcourtbias,prejudice,or
impropriety,andformeremployee'smotionappearedtobeadefensivereactiontotrialcourt's
imposition of default judgment and permanent injunction against her as discovery sanctions.
Rohm and Haas Co. v. Lin, 2010 PA Super 26, 992 A.2d 132, 30 I.E.R. Cas. (BNA) 1116
(2010).
Unless the grounds for recusal fall within those enumerated in constitution or in statute
listingspecificgroundsforincompetency,decisionwhethertorecuseisdiscretionaryandre-
quiresthatjudgemustnotbasedecisiononsubjectivenotionsofhisorherimpartiality,butbe
more objective, asking what a reasonable, disinterested person knowing all the relevant facts
would think about his or her impartiality. Const. Art. 6, 11; T.C.A. 17-2-101;
Sup.Ct.Rules,Rule10.Kinardv.Kinard,986S.W.2d220(Tenn.Ct.App.1998),reh'ggran-
ted, (Aug. 24, 1998) and appeal denied, (Jan. 19, 1999) and appeal denied, (Feb. 16, 1999);
Trial judge's remark, that he would not accept subsequent plea bargain unless it was for
maximumterm,afterdefendantdecidednotto enterguiltypleaathearing,wentonlytoplea
bargaining and was supported by facts introduced or events occurring in course of proceed-
ings, and thus, recusal judge did not abuse his discretion in denying motion to recuse; trial
judge gave no indication as to what sentence he would or would not impose at punishment
hearingandstatedonlythathewouldnotacceptpleabargainunlessformaximumtermof10
years,andtrialjudgeneverintimatedthathewouldnotfairlyconsiderentirerangeofpunish-
ment at trial. Vernon's Ann.Texas Rules Civ.Proc., Rule 18b(2). Gaal v. State, 332 S.W.3d
448(Tex.Crim.App.2011).
Trialcourtjudgewasnotdisqualifiedfrompresidingoverdefendant'strialforpossession
of controlled substance, namely, methamphetamine, based on judge's representation of de-
fendant in prior trial for which convictions were used to enhance instant sentence; judge had
notrepresenteddefendantininstantcase,factofpriorconvictionsfordrivingunderinfluence
(DUI)ofalcoholwerenotindispute,andjudgedidnotindicatethathispunishmentdecision
was influenced by defendant's repeated use of alcohol in connection with driving. Vernon's
Ann.Texas C.C.P. art. 30.01. Kuykendall v. State, 335 S.W.3d 429 (Tex. App. Beaumont
2011).
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[ENDOFSUPPLEMENT]
13.DiscretionarygroundsfordisqualificationPersonalbiasorprejudice
Tobeadisqualifyingfactor,thebiasorprejudicedemonstratedbythetrialjudgemustbe
personal to the party seeking disqualification, be of such deep rooted animus that a fair
mindedpersoncouldnotbeexpectedtosetitasideinjudgingthecertainpersonorcausebe-
forethecourt,andwithsomeexceptionsitmustcomefromanextrajudicialsource.
Apersonalbiashasbeendefinedasan"attitudetowardthepetitionerthatissignificantly
different and more particularized than the normal, general feelings of society at large."[55]
Disqualificationisnotrequiredbecausethejudgehasdefiniteviewsaboutthelawpertaining
to the case, or strong feelings about the crimes or acts alleged in the case.[56] Attitudes to-
ward the law are not personal to the party or party's cause, and general feelings, even strong
feelings,towardissuesorcrimesorcriminalactsallegedusuallyconstitutenothingmorethan
thegeneralized,normalfeelingsofsocietyatlarge.Agreatmanycasesexistwhichemphasize
thisdistinctionandinsistthatitisonlyaparticularpersonalbiasdirectedataparticularindi-
vidualorpartyandnotageneralorjudicialbiasthatrequiresdisqualification.[57]
Anexceptionmustbenotedforanygeneralattitudeindicativeofabiasorprejudicebased
onrace,religion,gender,ornationalorigin,oreveninsomeareasofthelawageordisab-
ilities. Where it appears that the judge possesses a personal bias or prejudice against such a
class of individuals, recusal may necessary even if it is argued that the feelings are nothing
morethanthosegenerallyheldbysomesegmentofsocietyorthecommunityatlarge.[58]
Cases:
Judicial rulings and opinions formed by the judge on the basis of facts introduced or
eventsoccurringinthecourseofthecurrentproceedings,orofpriorproceedingsalmostnever
constituteavalidbasisforarecusalmotionbasedonbiasorpartiality. 28U.S.C.A.455(a,
b).Beluev.Leventhal,640F.3d567(4thCir.2011).
It is far better to correct the problem that judge's impartiality might reasonably be ques-
tionedbyorderingrecusalinadvancethanbyorderinganewtrial;ifapartyisdeprivedofhis
substantialrightsinatrialbeforeanactuallybiasedjudgetheharmcanberemediedbyanew
trial before an unbiased judge, but the harm to the public's perception of the judicial system
when a judge who appears to be biased proceeds in a case is more difficult to correct, and
thus, prevention in such circumstances is preferable to attempts to cure. In re Bergeron, 636
F.3d882(7thCir.2011).
Trial judge did not abuse his discretion when he refused to recuse himself from defend-
ant'sprosecutionforbeingafeloninpossessionofafirearmafterhewasmadeawarethatde-
fendanthadthreatenedhim,wherenothingindicatedthatanyadverserulingsweremotivated
bybiasonpartofcourtandsentencewasimposedaftercourtcorrectlycalculatedtheproper
Sentencing Guidelines range. 28 U.S.C.A. 455(a). U.S. v. Oaks, 606 F.3d 530 (8th Cir.
2010).
Claim of homosexual bias: District court judge's comments during voir dire of defend-
ant's bank fraud prosecution which analogized homosexuality to illegal drug use and charac-
terizationofdefendant'sdomesticpartner,whowasmale,asbeingdefendant's"wife"duringa
sidebarconferencedidnotestablishthatjudgewasbiasedagainstdefendant,andthusdidnot
requirerecusal;althoughcommentswereinsensitive,theydidnotsuggestfavoritismorantag-
onismmakingfairjudgmentimpossible,judgeinstructedjurorstonotmakemoraljudgments
about people, and wife comment was made after defendant's partner was ejected from
courtroomandwasnotmadeinfrontofjury.28U.S.C.A.455.U.S.v.Nickl,427F.3d1286
(10thCir.2005);West'sKeyNumberDigest,Judges 49(2).
Even though court had to call upon United States Marshals posted in courtroom to main-
tainorderduringhearing,duetoapartmentbuildingowner'spersistentandescalatinginterrup-
tions of the in-court proceedings, and although judge ultimately denied owner's motion for
preliminaryinjunctionagainstDepartmentofHousingandUrbanDevelopment(HUD),judge
wasnotbiasedagainstownersoastojustifyrecusal,whereduringproceedingjudgehadper-
sistently attempted to help owner narrow his arguments and address the relevant issues, and
judge'suseofMarshalswaswithinhisauthoritytomaintainorderincourtroom.28U.S.C.A.
455(a).Konarskiv.Donovan,763F.Supp.2d128(D.D.C.2011).
Judge's alleged association with Democratic Party and appointment to federal bench by
Democratic president did not demonstrate actual bias warranting judge's disqualification in
former chairman's action against government watchdog organization for breach of severance
agreement,eventhoughchairmanhadfilednumerouslawsuitsagainstpresident'sadministra-
tion and had self-described reputation of being "anti-Democratic," where president was not
party to litigation. 28 U.S.C.A. 144. Klayman v. Judicial Watch, Inc., 744 F. Supp. 2d 264
(D.D.C.2010).
Bias or prejudice of a judge that would warrant recusal must stem from an extrajudicial
sourceandresultinanopiniononthemeritsonsomebasisotherthanwhatthejudgelearned
from her participation in the case. 28 U.S.C.A. 455. Sataki v. Broadcasting Bd. of Gov-
ernors,733F.Supp.2d16(D.D.C.2010).
Districtjudge'srecusalwasnotwarrantedincivilfraudactionasresultofspecialmaster's
report recommending that matter be referred to authorities for criminal investigation, where
defendantsfailedtosetforthfactscastingsignificantdoubtonjudge'simpartiality,allegedbi-
asdidnotstemfromextrajudicialsources,andtherewasnoindicationofpersonalbiasorpre-
judice. 28 U.S.C.A. 144, 455(a). Hofmann v. EMI Resorts, Inc., 689 F. Supp. 2d 1361
(S.D.Fla.2010).
Followingincamerahearingandgrantofpetitioner'scounsel'sapplicationtowithdrawas
counsel,recusalofjudgewasnotwarrantedongroundthatinformationprejudicialtopetition-
erwasconveyedtohimprivately,whichwouldcausereasonablepersontoquestionhisimpar-
tiality;notevenan"opinion"couldbeformedonbasisoftheincameracommunication,andit
wouldbeinappropriatetoreassigncasetoanotherjudge,aftertwoyearsoflitigationproced-
ures, a decision on the merits, appeal and remand, and only days from final hearing. ISC
HoldingAGv.NobelBiocareInvestments,N.V.,759F.Supp.2d289(S.D.N.Y.2010).
PlaintiffseekingrecusalofjudgewhoruledagainstherinTitleVIIactionanddeniedher
two subsequent motions for reconsideration failed to allege any facts that would call judge's
impartialityintoquestion,andthusrecusalofjudgewasnotwarranted,sinceplaintiffmerely
complained that judge had resolved defendants' underlying motion to dismiss in their favor,
and fact that plaintiff was upset by judge's rulings was not basis for recusal. 28 U.S.C.A.
455(a). Malcolm v. Board of Educ. of Honeoye Falls-Lima Cent. School Dist., 757 F. Supp.
2d253(W.D.N.Y.2010).
Bankruptcyjudge'sadverserulingsagainstChapter12debtorattrialofclaimstorecover
forallegedviolationsofautomaticstayandatpretrialhearingsdidnotdisplayanysuchdeep-
seatedandunequivocalantagonismastothemselvesprovidebasisforjudge'srecusalbasedon
alleged bias. In re Rafter Seven Ranches L.P., 414 B.R. 722, 52 Bankr. Ct. Dec. (CRR) 25
(B.A.P.10thCir.2009).
Nowell-informed,thoughtful,andobjectiveobservercouldconcludethatgroundsexisted
for questioning bankruptcy judge's impartiality, and judge did not have to recuse himself on
appearance-of-bias theory, simply because judge's fianc worked for firm which represented
Chapter 7 trustee in proceeding pending before judge, where fianc was associated with firm
merelyassalariedemployee,whowasnotshowntohaveanyinvolvementinproceeding. 28
U.S.C.A. 455(a). In re Trafford Distributing Center, Inc., 435 B.R. 745 (Bankr. S.D. Fla.
2010).
Propertestforwhetherajudgeshouldbedisqualifiediswhetherthechargeoflackofim-
partialityisgroundedonfactsthatwouldcreateareasonabledoubtconcerningthejudge'sim-
partiality,notinthemindofthejudgehimselforevennecessarilyinthemindofthelitigant
filingthemotionforrecusalbut,rather,inthemindofthereasonableman.28U.S.C.A.455
; Fed.Rules Bankr.Proc.Rule 4003(c), 11 U.S.C.A. In re Nicole Energy Services, Inc., 423
B.R.840(Bankr.S.D.Ohio2010).
Questionunderthesecondsubsectionofthestatutegoverningdisqualificationofjustices,
judges,ormagistratejudgesiswhetherthejudgeholdsapersonalbiasorprejudiceagainstthe
movant;themovantmustallegefactswhichareasonablepersonwouldbelievewouldindicate
ajudgehasapersonalbias.28U.S.C.A.455(b)(1);Fed.RulesBankr.Proc.Rule4003(c),11
U.S.C.A.InreNicoleEnergyServices,Inc.,423B.R.840(Bankr.S.D.Ohio2010).
Pervasivebiasexceptionisapplicabletorequirejudge'srecusalwhenjudgewhoseinform-
ationislimitedtothatrevealedduringcourseofjudicialproceedingsformsafavorableorun-
favorableopinionsoextremethatfairjudgmentappearsimpossible.28U.S.C.A.455.Inre
Johnson,408B.R.123(Bankr.S.D.Ohio2009).
Thetrialcourtshouldneverassumeapositionofadvocacy,realorapparent,inacasebe-
foreit,andshouldavoidanydisplaysofhostilityorskepticismtowardthedefendant'scase,or
of any approbation for the prosecution's. State v. John F.M., 110 Conn. App. 181, 954 A.2d
251(2008);West'sKeyNumberDigest,CriminalLaw 655(1).
CountyjudgeviolatedprovisionsofCodeofJudicialConductbyemployinganundulyri-
gid process in dealing with pro se petitioners for domestic violence injunctions, impeding
theirabilitytoobtainreliefandprotection;judgedismissedpetitionsafterimplyingthatanad-
ditionalwitnessotherthanthepetitionerwasnecessary,hesuaspontedismissedpetitionsthat
hebelievedreliedonhearsayevidence,andheengagedinextrajudicialquestioningwithpeti-
tionersastowhosentthemthereandwhotoldthemtofilepetitions,allofwhichoccurredas
judgeopenlydisagreedwithpolicythatrequiredcountyjudgestohearpetitionsfordomestic
violence injunctions. West's F.S.A. 741.30(1)(f); West's F.S.A. Code of Jud.Conduct, Can-
ons1,2(A),3(B)(2,7,8).InreEriksson,36So.3d580(Fla.2010).
Disqualificationoftrialjudgeinterminationofparentalrightsproceedingwaswarranted;
byattemptingtorefutefactualallegationsastowhytrialcourtmaybebiasedandonlymateri-
al witness who could fill in gaps created by missing psychiatric evaluation, judge did more
thandeterminelegalsufficiencyofmotionfordisqualification,andtherebycreatedadversari-
alpositionestablishinggroundsforhimtograntmotionasmatteroflaw,andjudge'sremarks
that mother's legal representation was very competent and that she was well-known to have
psychiatric and psychological deficits would have caused reasonably prudent person to have
well-founded fear that court was biased or predisposed against her and had formed opinion
about her psychiatric or psychological status before evidence was presented at adjudicatory
hearing.West'sF.S.A.38.02;West'sF.S.A.R.Jud.Admin.Rule2.330(f).D.H.exrel.J.R.v.
DepartmentofChildrenandFamilies,12So.3d266(Fla.Dist.Ct.App.1stDist.2009).
Probate judge's statement that she did not trust attorney-in-fact of intestate's unknown
heirstomakerequireddistributiontohisprincipals,whichcommentwasbasedonnothingin
record or otherwise, was sufficient to indicate that judge was not impartial, as grounds for
judge'sdisqualification.Blakev.Waks,11So.3d976(Fla.Dist.Ct.App.3dDist.2009).
The phrase "impartiality might reasonably be questioned," as a basis for recusal of a trial
judge, means a reasonable perception of lack of impartiality by the judge, held by a fair
minded and impartial person based upon objective fact or reasonable inference. Code of
Jud.Conduct,Canon3(E).Morganv.Propst,301Ga.App.402,688S.E.2d357(2009).
Adverserulingsalonearealmostneversufficienttosupportaclaimofjudicialbias,even
ifthoserulingsareallegedtobeerroneous.Lesherv.Trent,944N.E.2d479(Ill.App.Ct.5th
Dist.2011).
Excavatingcompanyfailedtoovercomepresumptionthattrialjudgewasunbiased,intrial
ofnegligenceactionthatgradecheckerbroughtagainstexcavatingcompanyafterabulldozer
ran over his foot, where excavating company only cited adverse evidentiary rulings as evid-
ence of bias. Dan Cristiani Excavating Co., Inc. v. Money, 941 N.E.2d 1072 (Ind. Ct. App.
2011).
An adverse ruling alone is insufficient to show judicial bias or prejudice. J.M. v. M.A.,
928N.E.2d230(Ind.Ct.App.2010).
Judge was not required to be recused; there was nothing in record reflecting that trial
judgehadprosecuteddefendantinthepast,and,inanyevent,recorddidnotindicatethattrial
courtwasbiasedinanyway,andallissuesoffactpertainingtoguiltorinnocenceweretried
byjuryandnottrialjudge.LSAC.Cr.P.art.671.Statev.Robinson,22So.3d1064(La.Ct.
App.2dCir.2009).
Trialjudgeincivilassaultandbatteryactionbroughtbyaproseplaintiffdidnotactwith
bias against defendant or his attorney, even though judge assisted plaintiff with the clear
presentationofhercase;judgedidnottryplaintiff'scaseforherand,inhisfinalinstructions
tojurors,emphasizedhisneutralityandtheirroleastheultimatefindersoffact.Campaniello
v.Hoscilo,2008Mass.App.Div.131,2008WL2640100(2008).
Trial judge did not abuse his discretion in individual's slip-and-fall action against super-
market by denying individual's motion for recusal, despite contention of individual's counsel
thatjudgewasbiasedagainstmembersofhislawfirm,treatedtheminacondescendingman-
ner, and made inappropriate statements and rulings in other cases; there was no suggestion
thatanybiashadanextrajudicialsource,trialjudgedeniedbiasorimproperconductandhad
apologizedforanylackofcourtesy,rulingscomplainedofinvolvedburdensofproofinmotor
vehicletortactions,ratherthanslip-and-fallcases,andremedyforanysuchimproperrulings
wasappeal,ratherthantoseekrecusal.S.J.C.Rule3:09,CodeofJud.Conduct,Canon3(B)(4),
(E)(1)(a).Bryanv.PriceChopperOperatingCo.ofMassachusetts,2007Mass.App.Div.189,
2007WL4258624(2007).
Trialjudge'sexpartecommunicationwithfather'sattorneyanddistributionofcopyofan-
othercasetoattorneydidnotdemonstratethatjudgecouldnotbeimpartialorthathehadpre-
judgedcasesoastorequirehisdisqualificationorrecusal,absentanyindicationthatexparte
communication involved merits of case or that judge had personal enmity toward mother or
biasinfavoroffather;judgeindicatedthathemadebothsidesawareofpriorcasetospurset-
tlement.InreC.N.H.,998S.W.2d553(Mo.Ct.App.S.D.1999),reh'gand/ortransferdenied,
(June15,1999);West'sKeyNumberDigest,Judges 49(1).
Former wife's unsupported allegations that female judge was biased against her because
husband was attractive man and former wife was attractive woman, without more, did not
state legally cognizable grounds for inference of bias, thus warranting summary dismissal of
motion to disqualify judge from presiding over motion for modification of custody and child
support.West'sNRSA1.230(1).Riverov.Rivero,216P.3d213(Nev.2009).
Fact that defendant filed a complaint with the Judicial Conduct Commission against the
sentencingcourtdidnotcreatesuchconflictofinterestastorequirerecusal.Peoplev.Stroh-
man,886N.Y.S.2d262(App.Div.4thDep't2009).
Judge's desire of a prompt resolution did not require disqualification in residents' action
against county defendants regarding rezoning of county land to accommodate new jail; there
wasnoevidencethatdesirewaspersonal,orthatitnecessitatedjudge'sdisqualificationbased
onaninabilitytoruleimpartially,andjudge'sordersevincednoevidencethatjudgehadany
preferenceoropiniononthelocationofthenewjail.Sappv.YadkinCounty,704S.E.2d909
(N.C.Ct.App.2011).
Trialjudgewasnotrequiredtorecusehimselfongroundsofallegedpersonalbiasagainst
defendant;allegedbiasstemmedfromprevioustrialwheretrialjudgefounddefendantincon-
temptandgavehimsixmonthsentence,trialjudgeindicatedhehadnoanimositytowardde-
fendantandwasnotawaredefendanthadfiledcomplaintwithclerkofcourt,trialjudgenoted
that incident in question occurred three years earlier and that he had not seen or heard from
defendantsincethattime,andthus,therewasnoevidencetrialjudgehadanypersonalbiasto-
warddefendant.Statev.Howard,682S.E.2d42(S.C.Ct.App.2009).
Under objective test, recusal of a judge becomes necessary when a person of ordinary
prudence in the judge's position, knowing all of the facts known to the judge, would find a
reasonable basis for questioning the judge's impartiality. State v. Odom, 336 S.W.3d 541
(Tenn.2011),petitionforcert.filed(U.S.May6,2011).
Disqualification of judge is not warranted when the judge's impersonal prejudice arises
from the judge's background experience; judges generally have strong feelings about certain
conductandbehavior,andwhenthejudgeperceivesthatonepartyortheotherhasengagedin
that conduct, the party should not be surprised that he or she has incurred the judge's wrath.
Eldridge v. Eldridge, 137 S.W.3d 1 (Tenn. Ct. App. 2002), appeal denied, (Mar. 10, 2003);
West'sKeyNumberDigest,Equity 49(1).
Bias or prejudice of judge, in the disqualifying sense, must stem from an extrajudicial
source and not from what the judge hears or sees during the trial; otherwise, any judge that
makesarulingadversetoonepartywouldbeopentoachargeofbias.Wilsonv.Wilson,987
S.W.2d 555 (Tenn. Ct. App. 1998), appeal denied, (Feb. 22, 1999); West's Key Number Di-
gest,Judges 49(1).
Trial court's refusal to admit a previous non-court-ordered paternity test, and instead or-
dering new genetic testing that included mother's DNA, did not demonstrate trial court's bias
against father, as would warrant recusal in stepfather's action to terminate father's parental
rights to child following death of mother. In re C.J.O., 325 S.W.3d 261 (Tex. App. Eastland
2010),reviewdenied,(Dec.17,2010).
Judge did not abuse his discretion when he declined to recuse himself; the imposition of
Rule11 sanctionswasnotevidenceofjudge'sprejudice,butratherevidencedonlyplaintiff's
failure to comply with court rules. CR 11. West v. State, Washington Ass'n of County Offi-
cials,252P.3d406(Wash.Ct.App.Div.22011).
Thepartyclaimingbiasorprejudice,asgroundsfordisqualificationofajudge,mustsup-
port the claim with evidence of the trial court's actual or potential bias. Business Services of
AmericaII,Inc.v.WaferTechLLC,245P.3d257(Wash.Ct.App.Div.22011).
The test for determining whether a judge should disqualify where the judge's impartiality
mightreasonablybequestionedisanobjectiveone;acourtmustdeterminewhetherareason-
ablyprudentanddisinterestedobserverwouldconcludethedefendantobtainedafair,impar-
tial,andneutralhearing.InreSwenson,244P.3d959(Wash.Ct.App.Div.12010).
[TopofSection]
[ENDOFSUPPLEMENT]
14.DiscretionarygroundsfordisqualificationAppearanceofbias
Ifacircumstanceexistswhichwouldgiveriseinthemindofareasonablepersonasuspi-
cion or reasonable inference that the judge would be influenced by it, this is sufficient to re-
quire recusaleven if the judge is confident that the circumstance, in fact, would not influ-
encehiminanyway.
CaseIllustration:
Tenants filed suit against a variety of defendants seeking damages for the lead poisoning of
their children from lead-based paint in city housing projects. A group of defendant manufac-
turersassertedacross-claimagainstthecityauthorities,baseduponcitypoliciesdevelopedin
themiddle1960s.Thetrialjudgehadbeenanassistantmayorduringtwooftheyearsinques-
tion,some25yearspriortotheinstantlitigation.Afteramendingtheirpleadingstoassertthe
cross-claim,themanufacturersmovedforthedisqualificationofthetrialjudge.Thejudgeob-
served that he had no recollection of the development of city policies in the challenged area,
andthathehadnotbeenpersonallyinvolvedinthisworkwhenheservedasanassistantmay-
or. He stated that he was personally satisfied that he could decide the case impartially, and
that he was not biased for or against any party. Nevertheless, he granted the motion and dis-
qualifiedhimself.Heconcludedthatthecircumstancesweresufficientforareasonableperson
toquestionthejudge'simpartiality.Hefoundthatthiswassufficienttowarranthisdecisionto
recusehimselffromthecase.[59]
The substantial case authority indicates that it is the appearance of potential partiality
ratherthantheactualexistenceofitthatisthestandardindeterminingtheissueofrecusal.It
isanobjectivestandardbasedupontheperceptionthroughtheeyesofahypotheticalreason-
ablepersonofwhatwouldorevenmightinfluenceajudge,ratherthananysubjectiveassess-
ment of the influences which actually motivate the judge, that establishes the proper test for
recusal.
Since the shift away from the duty to sit doctrine in the middle 1970s, the standard has
beentofavorrecusalinallclosesituations.Itisfrequentlystatedthatthegoalofthejudicial
codewastoavoidnotonlyactualpartialitybutalsotheappearanceofpartiality,andthatitis
not necessary to demonstrate any degree of actual bias or prejudice before recusal was re-
quired.[60] However, and although the so called "duty to sit" doctrine was abrogated by the
amendmentstothefederalstatuteandthepromulgationofthejudicialcode,therestillremains
considerableauthorityforthepropositionthatajudgeshouldnotstepasideifthereisnoreas-
ontodoso,onthemereallegationofaparty.Althoughnolongercouchedintermsofthepre-
vious "duty to sit" doctrine, recent cases hold that, although a judge has an obligation to re-
cusewheneverthereisagoodreasontodoso,thejudgehasanequalobligationnottorecuse
whenthereisnoreasontodoso.[61]
Cases:
Reasonablepersonrule:Statuterequiresjudicialrecusalifareasonableperson,knowing
allthecircumstances,wouldexpectthatthejudgewouldhaveactualknowledgeofhisinterest
orbiasinthecase.28U.S.C.A.455(a).SaoPauloStateofFederativeRepublicofBrazilv.
AmericanTobaccoCo.,Inc.,535U.S.229,122S.Ct.1290,152L.Ed.2d346(2002);West's
Expartecontactswithprosecutors:StateSupremeCourt'sdeterminationthatsentencing
judge who had ex parte communications about petitioner with state prosecutor was not re-
quiredtoberecusedbasedonappearanceofbias,andthatsuchrecusalwasmandatedonlyin
situationsinwhichjudgeengagedinactiveconductdemonstratingappearanceofimpropriety,
wasnotcontrarytooranunreasonableapplicationofclearlyestablishedFederaldueprocess
law,sothatpetitionerwasnotentitledtohabeasreliefonthatbasis;althoughSupremeCourt
cases provided that courts should satisfy the appearance of justice under the federal judicial
disqualification statute, there was no Supreme Court precedent holding that mere appearance
of bias by a trial judge, without more, violated due process. U.S.C.A. Const.Amend. 14; 28
U.S.C.A. 455, 2254(d)(1). Johnson v. Carroll, 369 F.3d 253 (3d Cir. 2004); West's Key
NumberDigest,Equity 467.
Trial judge's conduct in interrupting plaintiff's opening statement six times, while inter-
rupting defendant's only once, in interrupting plaintiff's direct examinations of its own wit-
nessesinawaythatwasconsistentlyderisive,intoneandcontent,ofplaintiff'stheoryofthe
case, and in repeatedly asking defense counsel if he wished to object to questioning of one
witness,soinfectedtrialwithappearanceofpartialitybytrialjudgethatnewtrialwasneces-
sary;therewasnohintthatcourtwasprovokedbyanymisconductofcounselorbyanywant
ofabilityonpartofdefensecounseltotryhisowncase.NationwideMut.FireIns.Co.v.Ford
MotorCo.,174F.3d801,1999FEDApp.148P(6thCir.1999);West'sKeyNumberDigest,
FederalCivilProcedure 1969.
Inadditiontobeingwell-informedaboutthesurroundingfactsandcircumstances,forpur-
posesofdeterminingwhetherajudge'simpartialitymightbequestionedbyreasonableobserv-
er,a"reasonableperson"isathoughtfulobserverratherthanahypersensitiveorundulysuspi-
ciousperson;areasonablepersonisabletoappreciatethesignificanceofthefactsinlightof
relevant legal standards and judicial practice and can discern whether any appearance of im-
propriety is merely an illusion. 28 U.S.C.A. 455(a). In re Sherwin-Williams Co., 607 F.3d
474(7thCir.2010).
Disqualification is required if a reasonable person who knew the circumstances would
question a judge's impartiality, even though no actual bias or prejudice has been shown.
AmericanPrairieConstructionCo.v.Hoich,594F.3d1015(8thCir.2010).
Ordinarily,whenajudge'swordsoractionsaremotivatedbyeventsoriginatingwithinthe
context of judicial proceedings, they are insulated from charges of bias. U.S. v. Nickl, 427
F.3d1286(10thCir.2005);West'sKeyNumberDigest,Judges 49(2).
Recusal based upon court's discovery rulings was not warranted, with respect to action
brought by former chairman against government watchdog organization, stemming from al-
leged breach of severance agreement; fact that court had overruled chairman's objections to
magistratejudge'sorders,permittedorganizationtotakediscoveryofchairman'sex-wifeand
declined to compel completion of depositions after close of discovery did not create appear-
ance of bias. 28 U.S.C.A. 455(a). Klayman v. Judicial Watch, Inc., 628 F. Supp. 2d 98
(D.D.C.2009).
Chapter 13 debtor failed to provide basis for bankruptcy judge's recusal, on theory that
judge'simpartialitymightreasonablybequestioned,basedsolelyonjudge'sprioradverserul-
ings.28U.S.C.A.455.Mohornev.BealBank,S.S.B.,419B.R.488(S.D.Fla.2009).
Purpose of statute requiring that judge disqualify himself in any proceeding in which his
impartiality might reasonably be questioned, is to promote public confidence in the integrity
ofthejudicialprocessandavoideventheappearanceofpartiality.28U.S.C.A.455(a).U.S.
v.Salemme,164F.Supp.2d49(D.Mass.1998);West'sKeyNumberDigest,Judges 40.
Therewasnoevidencethatwouldcreateanappearancethatcourthadanybiasinfavorof
eitherinsuredemployerorstop-lossinsurer,aswouldwarrantnewtrialonbreachofcontract
andfraudclaimsandarecusalofjudgefromanyfurtherparticipationincasetopreventanap-
pearanceofimpropriety.AGEquipmentCo.v.AIGLifeIns.Co.,Inc.,636F.Supp.2d1210
(N.D.Okla.2009).
Objectivestandard:Thetestforrecusalofajudge,underjudicialethicscanonrequiring
recusalwhenthefactsmakeitreasonableforthemembersofthepublicorapartytoquestion
theimpartialityofthejudge,iswhetherapersonofordinaryprudenceinthejudge'sposition
knowingallthefactsknowntothejudgewouldfindthatthereisareasonablebasisforques-
tioningthejudge'simpartiality;thequestionisnotwhetherthejudgewasimpartialinfact,but
whetheranotherperson,knowingallthecircumstances,mightreasonablyquestionthejudge's
impartialitywhether there is an appearance of impropriety. Canons of Jud.Ethics, Canon 3
(C)(1). Ex parte Monsanto Co., 862 So. 2d 595 (Ala. 2003), as modified on denial of reh'g,
(May9,2003);West'sKeyNumberDigest,Equity 49(1).
Former wife's allegation of ex parte communication between judge and husband during
hearing on husband's motion for contempt was legally sufficient, together with judge's ex-
pressed desire to "punish" wife with change of custody, which relief was not sought by hus-
band,toestablishreasonablebeliefthatjudgewouldnotbeimpartial,asgroundsforseeking
judge'srecusal.West'sF.S.A.CodeofJud.Conduct,Canon3,subd.B(7).Pearsonv.Pearson,
870 So. 2d 248 (Fla. Dist. Ct. App. 2d Dist. 2004); West's Key Number Digest, Equity
49(1).
Briefexchangesofgreetingsbetweenwifeandtrialjudgeindissolutionofmarriageaction
athealthclubwheresheworkedandhewasamemberdidnotcreateanappearanceofimpro-
priety,suchaswouldsupportsubstitutionoftrialjudgeforcause;trialjudgedisclosedtohus-
band'sandwife'sattorneysthatwifehadapproachedhimonseveraloccasions,andtherewere
noallegationsthattheinteractionsinvolvedanythingmorethanexchangesofgreetingsduring
chance encounters. S.H.A. 735 ILCS 5/21001(a)(3); Sup.Ct.Rules, Rule 63(C)(1). In re
MarriageofO'Brien,332Ill.Dec.242,912N.E.2d729(App.Ct.2dDist.2009).
Creationofappearancethattrialjudgewasbiasedrequiredthatherecusehimselfandan-
otherjudgebeassignedtorehearmatter,inproceedinginwhichpartiessoughttoincorporate
non-cohabitation, overnight guest restriction into custody portion of decree of dissolution;
judge's comments during oral pronouncement of his ruling, in which he specifically told
parties that he would not incorporate non-cohabitation/overnight guest restriction "into this
judgment or any other judgment that I issue," created appearance of partiality indicating a
fixed prejudgment and an inclination not to fairly weigh evidence. Vollet v. Vollet, 202
S.W.3d72(Mo.Ct.App.W.D.2006);West'sKeyNumberDigest,Judges 49(2).
Indeterminingwhetherjudgeisrequiredtorecusehimselfinproceedinginwhichhisim-
partiality is questioned, it is irrelevant, in determining whether there is an appearance of im-
propriety,whetherthetrialjudgewasactuallybiasedorprejudicedagainstaparty.V.A.M.R.
2,CodeofJud.Conduct,Rule2.03,Canon3,subd.D(1).InreK.L.W.,131S.W.3d400(Mo.
Ct.App.W.D.2004);West'sKeyNumberDigest,Equity 49(1).
Advice from state senator: Juvenile court judge's receipt of letter from state senator, in
terminationofmother'sparentalrightsproceedings,didnotmandaterecusal,althoughmother
allegedthatanappearanceofimproprietyhadresulted,wherejudgeindicatedhedidnotread
letter,andheinformedpartiesandfurnishedcopiesoflettertothemandcreatedrecordoflet-
ter,andletterdidnotconveyanyinformationthatwasnotconveyedbyindependentevidence
at trial. V.A.M.R. 126.01, subd. a. In re B.R.M., 111 S.W.3d 460 (Mo. Ct. App. S.D. 2003),
reh'gand/ortransferdenied,(June4,2003)andtransferdenied,(Aug.26,2003);West'sKey
Once a judge whose impartiality toward a particular case may reasonably be questioned
presidesoverthatcase,thedamagetotheintegrityofthesystemisdone,andthus,itisirrel-
evant, in determining whether there is an appearance of impropriety, whether the trial judge
was actually biased or prejudiced against a party. V.A.M.R. 2. Robin Farms, Inc. v. Bartho-
lome, 989 S.W.2d 238 (Mo. Ct. App. W.D. 1999); West's Key Number Digest, Judges
49(1).
Inevaluatingatrialjudge'sallegedbias,thequestioniswhetherareasonablepersonwho
knewthecircumstancesofthecasewouldquestionthejudge'simpartialityunderanobjective
standardofreasonableness,eventhoughnoactualbiasorprejudicewasshown.Statev.Bar-
ranco,278Neb.165,769N.W.2d343(2009).
Itisnotnecessarytoproveactualprejudiceonthepartofthecourt;themereappearance
of bias may require disqualification, but the belief that the proceedings were unfair must be
objectivelyreasonable.Statev.McCabe,201N.J.34,987A.2d567(2010).
Trialjudge'snegotiationandannouncementofhispost-retirementplantojoinlawfirmof
plaintiff's counsel did not create an appearance of impropriety, in connection with litigation
between two members of a limited liability company (LLC) in which plaintiff sought to ter-
minateandacquiredefendant'sinterest,andthusdefendantwasnotentitledtoanewtrial,as
litigation took two-and-a-half years to complete, judge had already made his substantive de-
cisions in the litigation, and only thing that remained to be done was the ministerial act of
formalizingthesubstantivedecisions.CodeofJud.Conduct,Canons1,2.Denikev.Cupo,394
N.J.Super.357,926A.2d869(App.Div.2007);West'sKeyNumberDigest,NewTrial
21.
Trialcourt'scommentstojury,afterdirectingverdictinfavorofelementaryschoolstu-
dentsonquestionofboardofeducation'sliabilityinnegligenceactionbaseduponsexualab-
use of students by school principal, gave rise to appearance of partiality and were improper;
commentswentwellbeyondadvisingjurythatitwouldnotbecalledupontodecideissueof
negligenceasresultofalegaldetermination,informingjurythat"certainotherfacts[were]so
overwhelming"thatcourthad"madeadeterminationaboutthemalready[,]"andsettingforth
facts supporting conclusion that board was negligent as matter of law. Frugis v. Bracigliano,
351N.J.Super.328,798A.2d614,165Ed.LawRep.674(App.Div.2002),reconsideration
granted,(May1,2002);West'sKeyNumberDigest,Trial 29(2).
Familiaritywithexpertwitness:Althoughjudgewasnotdisqualifiedbyhismerefamili-
arity with an expert witness in defendant's bench trial for assault, he was disqualified under
theNorthDakotaCodeofJudicialConductfrominvolvementinthecasebasedupontheap-
pearance of partiality; judge's statement to the parties revealed he felt a reasonable person
mightquestionhisimpartialitybecauseofhisinclinationtobelievetheexpertwitnessifcred-
ibilitywasanissue.CodeofJud.Conduct,Canon3(E)(1)(a).Statev.Jacobson,2008ND73,
747N.W.2d481(N.D.2008);West'sKeyNumberDigest,Judges 49(1).
Impartialitymightreasonablybequestion:Judgewhoofferedprobationtopregnantde-
fendant if she chose to have her baby should have at least disqualified herself from ruling
uponthedefendant'spost-sentencingmotionforappellatebondand,therefore,violatedthere-
quirementtodisqualifyherselfinaproceedinginwhichthejudge'simpartialitymightreason-
ablybequestioned;thejudgewasunavailablewhenthedefendantfiledthemotion,instructed
thebailifftoprepareandsignanordercountermandingafellowjudge'sdecisiontograntthe
motion, and appeared to give the case special scrutiny motivated by a desire to prevent an
abortion.CodeofJud.Conduct,Canon3,subd.E(1).ClevelandBarAssn.v.Cleary,93Ohio
St.3d191,754N.E.2d235(2001);West'sKeyNumberDigest,Judges 11(2).
Campaign contributions by litigator: Judge's impartiality might reasonably be ques-
tioned, such that judge should be disqualified from hearing case, when lawyer appearing be-
fore judge makes a campaign contribution to that judge in the maximum amount allowed by
law, member of that lawyer's immediate family makes a comparable maximum contribution,
lawyerfurtherassistsjudge'scampaignbysolicitingfundsonbehalfofthejudge,andthecon-
tributions and solicitations occur during a pending case in which the lawyer is appearing be-
fore that judge. Pierce v. Pierce, 2001 OK 97, 39 P.3d 791 (Okla. 2001), as corrected, (Nov.
21,2001)andasmodified,(Nov.27,2001);West'sKeyNumberDigest,Judges 46.
Trial judge who granted attorney summary judgment did not abuse his discretion by fail-
ing to disqualify himself, in legal malpractice and breach of fiduciary duty action brought
against attorney by client regarding settlement in underlying sexual abuse litigation; though
anotherjudgehaddeniedattorney'smotionforsummaryjudgment,judgeinquestiontoldlit-
igants that he had contacted attorney to inquire who his wife should contact for a position at
law school and judge expressed a dislike of having to sit in judgment of lawyers, fact that a
judge would reach an outcome different from that reached by another judge did not give rise
toaninferenceofprejudice,andjudge'sacknowledgmentofhisdislikewasanindicationthat
hegavetheclienthisdue.Doev.Howe,367S.C.432,626S.E.2d25(Ct.App.2005);West's
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[ENDOFSUPPLEMENT]
14.5.DiscretionarygroundsfordisqualificationStrayremarks
Cases:
Judge's comment, that "even as great a lawyer as" defense counsel "is, she can't get this
guyoff,"didnotrequirerecusalorviolatedefendant'sdueprocessrights;commentwasmade
outofthepresenceofthejuryandwasintendedtogoadprosecutionintoexpeditingitscase.
U.S.C.A.Const.Amend.5;28U.S.C.A.455(a).U.S.v.Sypolt,346F.3d838(8thCir.2003)
;West'sKeyNumberDigest,ConstitutionalLaw 268(8).
District judge's off-the-cuff suggestion that he would not hire "any other law clerks from
Yale" did not demonstrate the judge was biased against a party or otherwise unfit to preside
overproceedingsonremand.GlenHollyEntertainment,Inc.v.TektronixInc.,343F.3d1000
(9th Cir. 2003), opinion amended on denial of reh'g, 2003 WL 22928864 (9th Cir. 2003);
West'sKeyNumberDigest,FederalCourts 951.1.
Singlecommentthatbankruptcyjudgemadeontestimonyofoneofpartiesatevidentiary
hearing on trustee's request for turnover, in making a ruling adverse to that party's interests,
didnotreflectsuchadeep-seatedantagonismastorequirejudge'srecusal,insubsequentad-
versaryproceedingwhichinvolvedthatparty,onpervasivebiastheory.28U.S.C.A.455.In
reJohnson,408B.R.123(Bankr.S.D.Ohio2009).
Remarksmadebytrialjudgeduringtoxictorttrial,includingthatmanufacturerconducted
unnecessarydepositionsjusttoharasstheplaintiffs,thatjurycouldreasonablyinferthatman-
ufacturerplannedtodonothingwiththeplaintiffs'properties,thatmanufacturerwashopingto
getoutofthecaseonatechnicality,andthatmanufacturerhadnotbeendealingingoodfaith
and was "trying to stretch this thing out as far as possible," did not require recusal of judge;
judge's expression of his frustration with any delay did not indicate that he was biased, and
challengedremarksconstitutedjudge'sassessmentofmanufacturer'sconductduringthelitiga-
tion.CanonsofJud.Ethics,Canon3,subd.C(1).ExparteMonsantoCo.,862So.2d595(Ala.
2003),asmodifiedondenialofreh'g,(May9,2003);West'sKeyNumberDigest,Equity
49(2).
Trialcourtdidnotoversteptheboundsofimpartialityincapitalhomicideprosecutionby
disparaging defense counsel in front of the jury when, in response to defense counsel's com-
ment that she was uncertain if there was something to be discussed before resuming the trial
thenextday,thetrialjudgestatedthatdefensecounsel'scommentmeantshewasgoingtogo
back to her office and "dream something up"; taken in the context of the entire trial, trial
court'sremarkwaslikelyanironicwayofconveyingtothejurythecourt'suncertaintyabout
thetrialschedule.Peoplev.Bell,40Cal.4th582,54Cal.Rptr.3d453,151P.3d292(2007),
petitionforcert.filed,76U.S.L.W.3001,76U.S.L.W.3023(U.S.June26,2007);West'sKey
NumberDigest,CriminalLaw 655(5).
Judge's comments during trial in medical malpractice action against state university hos-
pital, questioning the propriety of litigation tactics employed by hospital and university's
boardoftrustees,warranteddisqualificationnotonlyincaseatbarbutalsoinallothercases
before the judge in which hospital and board of trustees were parties, where judge expressly
statedthathisconcernwithappearanceofimproprietyonpartofhospitalandboardoftrust-
ees was not limited to case at bar, but instead extended to all other cases involving those
parties,towhichhewasassigned.ShandsTeachingHosp.andClinics,Inc.v.Samuelexrel.
Mathis, 926 So. 2d 441, 208 Ed. Law Rep. 919 (Fla. Dist. Ct. App. 1st Dist. 2006); West's
Commentindicatedprejudgingofcase:Judgeshouldhavebeendisqualifiedindissolu-
tionaction,basedonhiscommenttowife'scounselatthecloseoftheevidence,butbeforefi-
nalargumentswereheard,thatherclientshouldattempttonegotiateformorevisitationthan
shewouldotherwisereceiveifthetrialcourtmadethedecision,insofarasthecommentcould
reasonably be interpreted to mean that the judge had crossed that line from forming mental
impressions to prejudging the issue of custody prior to the conclusion of the trial. West's
F.S.A. R.Jud.Admin.Rule 2.160. Barnett v. Barnett, 727 So. 2d 311 (Fla. Dist. Ct. App. 2d
Dist.1999),reviewdenied,735So.2d1283(Fla.1999);West'sKeyNumberDigest,Judges
49(2).
"Liar":Formerwifefailedtoestablishthattrialjudge'sconductduringchildcustodyand
contemptproceedings,includingjudge'suseoftheword"liar"inreferringtowife,warranted
recusal;judgewhoheardwife'srecusalmotionfoundthatwhilethetrialjudgemayhaveinap-
propriately used the term "liar" out of frustration in connection with wife, such was not
enoughtoshowthetrialjudgewasprejudiced,andheconcludedthatthetrialjudgewouldbe
"fair and free of prejudice" for either party. LSA-C.C.P. art. 151(B)(5). Suazo v. Suazo, 970
So. 2d 642 (La. Ct. App. 1st Cir. 2007), writ denied, 970 So. 2d 539 (La. 2007); West's Key
Comments made by trial judge in newspaper article, which was that rape defendant was
"fortunatetohavethreehighlyskilledattorneyslookingoutforhim,"thatdefendantwasnota
"celebrity,"thatjudgehopeddefendantwasnotignoringhisattorneys'adviceon"somefalse
hope"drawnfromacelebrity'srecentacquittalinchildmolestationtrial,andthatifdefendant
receivedmoreprisontimethanthepleabargainoffered,judgedidnotwantdefendanttoclaim
ineffective assistance of counsel, did not facially reflect bias on the judge's part, and, thus
judge was not required to recuse himself or refer motion to recuse to another judge for hear-
ing;judgestatedhemadecommentstomakedefendantthinkforsureaboutwhathewasdo-
ing when he ignored advice of his counsel. LSA-C.Cr.P. arts. 671, 674. State v. Pitree, 930
So.2d265(La.Ct.App.3dCir.2006);West'sKeyNumberDigest,Judges 49(2).
"Hasbeenherebefore":Trialjudge'sremarks,infrontofthejury,thatdefendantmotor-
ist's expert witness "has been here before" were prejudicial to motorist in accident victim's
personalinjuryaction,asremarkmayhavebeeninterpretednegativelyandcausedthejuryto
thinktheexpertwasmoreofaprofessionalwitnessthanaphysician,andfactthattheexpert
hadpreviouslyappearedbeforethetrialjudgewasirrelevanttothejudge'sfunctioninqualify-
ingthewitnessasanexpert.N.J.S.A.2A:84A,App.A,RulesofEvid.,N.J.R.E.702.Espinal
v. Arias, 391 N.J. Super. 49, 916 A.2d 1081 (App. Div. 2007); West's Key Number Digest,
AppealandError 1046.5.
Superiorcourtjudge'sinjudiciousandunprofessionalremarksduringprobationrevocation
hearing,hersuggestiontodefenseattorneytouse"bigboyvoice"whenaddressingjury,and
herquestionaboutwitness'descriptionofweaponbyaskingwhetheritwasa"Bradleytank"
violatedobligationstoensuretheintegrityandindependenceofthejudiciary,promotepublic
confidenceintheintegrityandimpartialityofthejudiciary,maintainorderanddecorum,and
be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers. Code of
Jud.Conduct,Canons1,2,subd.A,3,subd.A(2,3).InreHill,359N.C.308,609S.E.2d221
Sharpwordsspokenbyatrialcourttocounseldonotbythemselvesestablishimpermiss-
ible bias; there is a modicum of quick temper that must be allowed even judges. State v.
Sanders, 92 Ohio St. 3d 245, 750 N.E.2d 90 (2001); West's Key Number Digest, Criminal
Law 655(5).
Trial justice's comments, when wife was asserting, in divorce action, that car's license
plate was her property, were improper and suggested preconceived or settled opinion against
wife, and thus, Supreme Court, on wife's appeal, would excuse trial justice from further re-
sponsibilitiesinthecase;whenwiferaisedtheissueofthelicenseplate,trialjusticestatedto
wife,"Oh,you'refinallyspeakingup,"stateditwas"hardtobelieve"husbandwasmotivated
byrevenge,andstated,inresponsetowife'scommentthather83-year-oldmothercriedevery
dayabouttheplate,"ForGod'ssake,givehertheplateandstopthis80-yearoldwomanfrom
crying over a plate." Cardinale v. Cardinale, 889 A.2d 210 (R.I. 2006); West's Key Number
Judge'scommentsinpaternityandvisitationhearing,thathewasopposedtosettingvisita-
tion, and that, if called upon to do so, he would make schedule so difficult that parties could
not adhere to it and would then hold them in contempt for failure to comply, while uncalled
for,didnotrisetosuchegregiouslevelthatitwasanabuseofdiscretionforhimtohearcase;
comments did not fall within grounds of required recusal enumerated in constitutional provi-
sionandstatutegoverningjudicialdisqualification,commentswerenotdirectedtopartiesper-
sonally, and order entered following hearing outlined manageable visitation schedule. West's
T.C.A.Const.Art.6,11;West'sT.C.A.17-2-101.Wrightv.Pate,117S.W.3d774(Tenn.
Ct.App.2002),appealdenied,(May5,2003);West'sKeyNumberDigest,Judges 49(2).
Atrialcourthasinherentpowertocontrolthedispositionofitscases;accordingly,judicial
rulingsalonealmostneverconstituteavalidbasisforabiasorpartialitymotion,andjudicial
remarks during the course of a trial that are critical or disapproving of, or even hostile to,
counsel,theparties,ortheircases,ordinarilydonotsupportabiasorpartialitychallenge.Ry-
mer v. Lewis, 206 S.W.3d 732 (Tex. App. Dallas 2006), reh'g overruled, (Nov. 29, 2006);
Trial judge acted within his discretion in refusing to recuse himself from child custody
proceeding, even though former husband alleged that judge had made unkind remarks about
husband to court reporter and bailiff; nothing in record indicated that any bias actually af-
fectedproceedings,andhusband'spersonalperceptionofbiasdidnotwarrantrecusal.Scottv.
Rutherfoord, 30 Va. App. 176, 516 S.E.2d 225 (1999); West's Key Number Digest, Judges
49(2).
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[ENDOFSUPPLEMENT]
15.DiscretionarygroundsfordisqualificationAnimositytowardscounsel
A great number of recusal motions are undoubtedly based upon a perception of personal
animosityreal or imaginedbetween the judge and lawyer. The issue is a difficult one, as
canbesurmisedbytheplethoraofcasesonallsidesoftheissue.Itappearsgenerallyheldthat
where disqualification is allowed on the grounds of animosity towards counsel, the level of
animosityhastoreachthepointwheretheinterestsoftheclientareaffected.Hostilitytoward
the attorney, standing alone, is not enough. On the other hand, a significant number of juris-
dictions do not allow disqualification based only on hostility towards lawyers, no matter
what.[62]
One pernicious ill courts are especially wary of when examining a motion alleging only
hostilitytowardthelawyerasthegroundforrecusalisthepossibilitythatthemotionismotiv-
atedbyjudgeshopping,withthesuspicionthatthelawyerhasbaitedthejudgeintoaninjudi-
cious remark, and then sought an order of disqualification based upon the disclosed animos-
ity.[63]Onecourtobservedthatitwasunnecessarytorecusemerelybecausethejudgedidnot
likethelawyer,becauseitwaswellrecognizedthatajudgecould"cordiallydislikeandeven
distrustanattorney,andyetbecapableofdoingexactjusticetowardhisclient."[64]
While generally a judge is not subject to being required to recuse because of remarks
which are critical of attorneys in the case, there are exceptions. Remarks, even when made
withintheproceedings,canbethebasisofamotionifthejudgegoesoverboard.
CaseIllustration:
Duringahearingonamotionforsummaryjudgment,andwhenitwasarguedthataparticular
affidavit should be stricken as improper repudiation of prior deposition testimony, the judge
remarkedthathewouldnotstriketheaffidavitnomatterwhat,andinfactwouldnevergrant
summaryjudgmentinfavorofthemovingparty.Uponhearingtheseremarks,theparty'slaw-
yer orally moved (perhaps improvidently) for the judge's disqualification. The judge ordered
thelawyerintochambers,andadvisedhimthathe"hadaverystrongpersonaldislikeforany-
onewhodemonstratedsuchunprofessionalbehaviorandchallengedhisauthorityandthatat-
torneys in his courtroom paid a price for such behavior." The lawyer stated that shortly after
this,anincidentinanothermatterindicatedthatthetrialjudge'simpartialitytowardscounsel
remainedcompromised.Thejudgedidnotsubmitanymaterialinreplytothelawyer'sasser-
tions.Theappellatecourtheldthatthiswassufficienttocreateareasonablefearofcontinuing
animositybythejudgetowardsthelawyer,whichrequiredrecusal.[65]
Cases:
Judge'sscoldingofdefenseattorneyforspeakingtoofastduringclosingargument,inpro-
secutionforobstructingandimpedingafederalgrandjury,didnotsuggesttojurythatjudge
favoredprosecution,aswoulddeprivedefendantsoffairtrial,orconstitutebiaswarrantingre-
cusal;judgemadeclearthathismotivewasnothostilitytowardcounselbutconcernthatcourt
reporter could not take down everything that was being said, and defendants did not dispute
thatcounselwasinfactspeakingtoofast.18U.S.C.A.1503;28U.S.C.A.455.U.S.v.Er-
ickson,561F.3d1150(10thCir.2009).
In employee's discrimination and retaliation action against her former employer and oth-
ers, trial court judge's alleged bias or prejudice toward employee's counsel, rather than em-
ployee herself, was not sufficient grounds for disqualification on basis of bias or prejudice,
where, even if judge's bias toward an attorney could be transferred to the client, there had
been no showing that judge was biased or prejudiced against employee's counsel, let alone
that any such alleged prejudice was of such a nature that it could be imputed to employee as
the client. 28 U.S.C.A. 455. Sataki v. Broadcasting Bd. of Governors, 733 F. Supp. 2d 54
(D.D.C.2010).
Statetrialjudge'scommentstodefensecounselduringmurdertrialdidnotrisetolevelof
dueprocessviolationwhenallegedlyprejudicialcomments,suchasaskingdefensecounselto
"cut out the comedy," were proper attempts by judge to quell inappropriate conduct by de-
fense counsel and focus jury's attention upon facts of case, only one such exchange involved
petitioner'sattorney,andjurywasinstructedthatitshouldnotconsideranythingsaidbyjudge
as indicating that he held any opinions respecting case and that jurors should not draw infer-
ences from anything said between and amongst attorneys and court. U.S.C.A. Const.Amend.
14.Copelandv.Walker,258F.Supp.2d105(E.D.N.Y.2003);West'sKeyNumberDigest,
ConstitutionalLaw 268(8).
Defensecounsel'sletter,whichwasdatedninemonthsbeforedateitwassubmittedasex-
hibit to Senate Judiciary Committee hearing and which listed counsel's reasons for opposing
judge's nomination, was not a prior interaction that gave rise to appearance of partiality to
support counsel's subsequent motion for recusal of judge; motion for recusal was filed one
year and one day after judge was appointed to serve, counsel's letter did not raise personal
conflict with judge but rather voiced his general concerns over political attitudes and prior
academic writings, and judge's partiality was alleged to be against counsel rather than coun-
sel'sclient.28U.S.C.A.455(a).U.S.v.Evans,262F.Supp.2d1292(D.Utah2003);West's
Judicial remarks made during the course of a trial that are critical or disapproving of, or
evenhostileto,counsel,theparties,ortheircases,ordinarilydonotsupportabiasorpartiality
challenge,althoughtheymaydosoiftheyrevealanopinionthatderivesfromanextrajudicial
source,andtheywilldosoiftheyrevealsuchahighdegreeoffavoritismorantagonismasto
make fair judgment impossible. 28 U.S.C.A. 455; Fed.Rules Bankr.Proc.Rule 4003(c), 11
U.S.C.A.InreNicoleEnergyServices,Inc.,423B.R.840(Bankr.S.D.Ohio2010).
Judge should have recused from deciding Rule 11 sanctions because of obvious bias to-
wardattorney,wherejudgemisreadattorney'ssecondmotiontorecuse,judgerepeatedlyshut
attorney off when attorney sought answers to his questions, judge told attorney "I'm not up
here to answer your questions," judge referred to opposing counsel by familiar name, and
stated "I can do anything I want to. I'm the Judge." Rules Civ.Proc., Rule 11. Allen v. Rut-
ledge,355Ark.392,139S.W.3d491(2003);West'sKeyNumberDigest,Equity 49(2).
Judgewho,becauseofhispoliticalrivalrywithprosecutor,attemptedtointrudeonprosec-
utor'sauthorityindrunkdrivingcasebyhavinghisclerkreviewthefileandsubpoenaallpro-
secution witnesses after prosecutor had sought to dismiss the case as part of plea bargain,
committedwillfulmisconduct,asbasisforjudicialdiscipline.West'sAnn.Cal.Const.Art.6,
18(c)(1994).Fletcherv.CommissiononJudicialPerformance,19Cal.4th865,81Cal.Rptr.
2d58,968P.2d958(1998).
Embroilment in controversy: Substitution of another judge to conduct contempt pro-
ceedingsinwhichprobatejudgehadprejudgedcontemnor'sculpabilityformissingestateas-
setsandhadbecomepersonallyembroiledincontroversywasappropriate,particularlywhere
judge had referred case to district attorney for possible prosecution, raising possibility that
judge might be witness in future criminal proceeding. Rules Civ.Proc., Rule 97; Code of
Jud.Conduct,Canon3.InreEstateofElliott,993P.2d474(Colo.2000);West'sKeyNumber
Digest,Judges 39.
Trialcourtdidnothavetorecuseitselfbecauseofabiasagainstdefensecounsel,although
courtcreditedthewordofapersonwhowasnotanattorneyoverdefensecounselataposttrial
hearing;notestimonybearsaninstantimprimaturoftruththatinsulatesitfromscrutinyoftri-
er of fact. Weyel v. Catania, 52 Conn. App. 292, 728 A.2d 512 (1999); West's Key Number
Alleged animosity that had developed between judge's judicial assistant (JA) and one of
attorney's employees did not require disqualification of judge in foreclosure action, as there
was no objectively reasonable basis for attorney's clients to fear that the judge would not be
fair and impartial. Nudel v. Flagstar Bank, FSB, 52 So. 3d 692 (Fla. Dist. Ct. App. 4th Dist.
2010).
Trial judge's behavior during trial for murder and related crimes was sufficient to create
impressionthathewasbiasedagainstdefensecounselandpartialtoState,andthus,warranted
judge's recusal; trial judge's direction for defense counsel to "sit down and shut up," when
counselrosefromhischairtoaddresscourtduringvoirdirewasunprovoked,judgeresponded
with undue hostility towards counsel when counsel objected to questions posed to witnesses,
judgewarnedcounselnotto"interruptState'scross-examinationagain"byraisingobjections,
judge imposed his own objections during defense counsel's questioning of witnesses, even
though prosecutor made no objections, judge berated counsel in front of jury for making ob-
jectionsthatwereactuallyvalid,andjudgeengagedinexpartediscussionwithprosecutorin
defense counsel's absence in which he instructed prosecutor to "get into fact that witnesses
havebeenintimidatedandIwantyoutodevelopthatrecord."West'sGa.CodeAnn.17-8-57
. Johnson v. State, 278 Ga. 344, 602 S.E.2d 623 (2004); West's Key Number Digest, Equity
49(2).
Trial judge's actions in rebuking driver's counsel for failing to have exhibit timely pre-
paredforsubmission,indroppingorthrowinghispenontopofbenchfollowingrebuke,and
incrossinghisarmsinapparentshowofdisgustwithdriver'scounsel,allinpresenceofjury,
did not prevent driver from receiving fair trial of his personal injury action against motorist.
Millisv.Hute,587N.W.2d625(IowaCt.App.1998).
Trial judge did not abuse his discretion in individual's slip-and-fall action against super-
market by denying individual's motion for recusal, despite contention of individual's counsel
thatjudgewasbiasedagainstmembersofhislawfirm,treatedtheminacondescendingman-
ner, and made inappropriate statements and rulings in other cases; there was no suggestion
thatanybiashadanextrajudicialsource,trialjudgedeniedbiasorimproperconductandhad
apologizedforanylackofcourtesy,rulingscomplainedofinvolvedburdensofproofinmotor
vehicletortactions,ratherthanslip-and-fallcases,andremedyforanysuchimproperrulings
wasappeal,ratherthantoseekrecusal.S.J.C.Rule3:09,CodeofJud.Conduct,Canon3(B)(4),
(E)(1)(a).Bryanv.PriceChopperOperatingCo.ofMassachusetts,2007Mass.App.Div.189,
2007WL4258624(2007).
Defendantfailedtodemonstrategroundsfordisqualificationoftrialjudgeduringhistrial
for felonious assault and possession of firearm during commission of a felony, based upon
judge'scharacterizationofdefensecounselasaliar,wherejudge'scommentsweredirectedat
defense counsel, not defense in general, for counsel's alleged alteration of one of court's or-
ders and his alleged lie about how such change came about, and judge specifically indicated
thatshewasnotprejudicedagainstdefendant.MCR2.003(B)(1).Peoplev.Wells,238Mich.
App. 383, 605 N.W.2d 374 (1999), appeal denied, 462 Mich. 869, 616 N.W.2d 689 (2000);
Hostilityexhibitedbytrialjudgetowardattorneywouldleadreasonablepersontoquestion
whetherattorney'sclientscouldgetfairhearinginhercourt,suchthatjudge'srecusalinattor-
ney'spendingcaseswaswarranted;recorddemonstratedthatjudgeentertainedhighdegreeof
hostilitytowardattorney,judge'shostilitycontinuedbeyondtrialtoattorney'spost-trialefforts
toobtainrecord,nothinginrecordsuggestedthatjudge'sactionswereresponsivetoimproper
conductonattorney'spart,andwheninvitedtoexplaincircumstances,judgemadeallegations
of racial and gender prejudice, which were without support in record. Code of Jud.Conduct,
Canon 3. In re Blake, 912 So. 2d 907 (Miss. 2005); West's Key Number Digest, Judges
49(2).
Recusaloftrialjudgewasnotwarrantedinmatrimoniallitigation,althoughjudgeusedin-
appropriatelanguageduringconferencecallwithcounselinexpressingfrustrationathusband
overdiscoverydelay,wherematterhadnotproceededpastdiscoverystage,judgehadnotim-
posedsanctionsforhusband'snoncompliancewithdiscoveryorders,athearingonmotionfor
recusalthejudgeclearlysetforthbasesfordiscoveryorders,andtherewasnoappearanceof
bias. Panitch v. Panitch, 339 N.J. Super. 63, 770 A.2d 1237 (App. Div. 2001); West's Key
Provokedanimosity:Toextentthattrialcourt'sconductcouldinanyremotewaybeper-
ceivedashostile,suchconductwasthedirectresultofdefensecounsel'sconstantbaiting,be-
littling, provoking, and showing disrespect to court throughout trial, and did not deprive de-
fendantoffairtrial;amongotherthings,counselaccusedcourtofignoring"250yearsofjuris-
prudence"whencourtadvisedcounselthatopeningremarksweretobelimitedtowhatevid-
encewouldshow,toldcourtthatitwouldunderstandwhycertainquestionswerenecessaryif
it"wouldhavelistenedtoopening,"andstatedthathedidnotknowwhycourtdidnot"seem
tograspit."Peoplev.Straniero,17A.D.3d161,792N.Y.S.2d466(1stDep't2005),leaveto
appealdenied,5N.Y.3d795,801N.Y.S.2d816,835N.E.2d676(2005);West'sKeyNumber
Digest,CriminalLaw 655(1).
Trial judge's hostility against defense counsel demonstrated bias of sort necessitating dis-
qualification,inmurderprosecution;inadditiontootherrulingsandill-temperedremarksdur-
ingandaftertrial,judgeaccusedcounselofmanipulatinghimintopresidingovercertification
hearing,inwhichStatesoughttoberelievedofitsdutytodiscloseaddressofwitness,inor-
dertodisqualifyjudge,eventhoughjudgehimselfhaddutytobeawareofState v. Gillard un-
derwhichhewasprohibitedfrompresidingoverbothcertificationhearingandtrial,andjudge
refusedcounsel'srequesttowithdrawdespiteloomingcriminalcontemptproceedingsagainst
counselbasedonjudge'sclaims.Statev.Dean,2010-Ohio-5070,937N.E.2d97(Ohio2010).
Trial judge's mere prior knowledge of the existence of a disciplinary proceeding against
attorney while judge presided over criminal case against client did not entitle attorney to re-
cusal on review in the disciplinary case over a year later; a person of ordinary prudence,
knowing all facts known to the judge, would find no reasonable basis for questioning the
judge's impartiality, as nothing suggested any animosity towards attorney or implied any ap-
pearance of bias or prejudice. Sup.Ct.Rules, Rule 10, Code of Jud.Conduct, Canon 3(E)(1).
Beardv.BoardofProfessionalResponsibility,288S.W.3d838(Tenn.2009).
Trialjudge'scommentthatplaintiffs'counselwasattemptingtoperpetratea"hoax"onthe
court during examination of witness, because of lack of evidentiary support for proposition,
did not demonstrate disqualifying bias against plaintiffs. Hoggett v. Brown, 971 S.W.2d 472
(Tex.App.Houston14thDist.1997),reviewdenied,(Jan.16,1998)andreh'gofpetitionfor
reviewoverruled,(Mar.26,1998).
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[ENDOFSUPPLEMENT]
16.DiscretionarygroundsfordisqualificationExtrajudicialSourceRule
In order to be a basis for disqualification, the source of the circumstance creating the al-
leged bias or prejudice must be based on something other than what the judge learned in the
course of the instant proceeding. According to the overwhelming authority, this means that a
judgewillnotberequiredtostepasidebecauseofthejudge'sreactionorcommenttoanything
that develops from within the case itself.[66] The fact that the judge voiced criticisms at a
party or a party's counsel during the proceedings, whether based upon their conduct or the
evidenceintroducedduringtheproceedings,orthefactthatthejudgeruledagainstapartyin
previous proceedings or in earlier trials has been repeatedly held to be insufficient to consti-
tutegroundsforrecusal.[67]
Generally,tobesufficientgroundsfordisqualification,thebiasorprejudicemustbeanat-
titude existing in the judge at the beginning of the litigation which the judge brings into the
case, or it must be something acquired by the judge from an origin outside of the actions of
thepartiesorcounselduringthecase.Thisistermedtheextrajudicialsourcerule,intendedto
preventapartyfromtauntingorharassingajudgeintoapositionofanger,andthenclaiming
groundsfordisqualificationbecauseoftheperceivedpersonalbiasorprejudicewhichhasres-
ulted. Generally, a judge is not subject to disqualification because of any action the judge
takes against a party or counsel during the progress of the proceeding as a result of anything
occurringwithinit.
Ofcourse,thereareexceptions.
CaseIllustration:
The defendants were convicted in a criminal trial, appealed their convictions, and applied to
theappellatecourtforreleaseonbailpendingtheoutcomeofappeal.Thetrialjudgefiledan
affidavit with the appellate court opposing any bond, and stating in the affidavit that, in his
opinion,theevidenceofguiltwasoverwhelming,thattheappealwasfrivolous,andthatbail
onappealshouldbedenied.Theappellatecourteventuallyreversedandremandedthecasefor
anewtrial.Thedefendantsmovedtodisqualifythetrialjudgefromhearingthenewtrial,on
thegroundsthattheaffidavitfiledinoppositiontobailonappealrevealedabiasorprejudice
againstthem.Thetrialjudgedeniedthemotion,andthedefendantssoughtawritofmandate
fromtheappellatecourt.Theappellatecourtgrantedthewritanddirectedthatthetrialjudge
withdraw from the case. It held that the trial judge's observations about the evidence, the de-
fendant's guilt and their motivation in taking the appeal were not part of the judge's obliga-
tionsasthetrialjudgethefirsttimearound,butwerevoluntaryopinionsassertedinamatter
which was not presently before him. Even though the circumstances and the judicial attitude
originatedwithintheframeworkofapendinglitigation,andnotfromanextrajudicialsource,
recusalwasmandated.Thecasewasreturnedbytheappellatecourtwithanorderthatthewrit
beissued.[68]
Cases:
Judicialrulingsbythemselvescannotpossiblyshowrelianceuponanextrajudicialsource
aswouldwarrantrecusalofajudgeandcanonlyintherarestcircumstancesevidencethede-
gree of favoritism or antagonism required when no extrajudicial source is involved; dissatis-
factionwithacourt'srulingsalmostinvariablyprovidesapropergroundforappealandnotfor
recusal. 28 U.S.C.A. 455. Sataki v. Broadcasting Bd. of Governors, 733 F. Supp. 2d 16
(D.D.C.2010).
Judicialrulingsalonealmostneverconstituteavalidbasisforabiasorpartialitymotion;
inandofthemselves,theycannotpossiblyshowrelianceuponanextrajudicialsource,andcan
only in the rarest circumstances evidence the degree of favoritism or antagonism required
when no extrajudicial source is involved. 28 U.S.C.A. 455; Fed.Rules Bankr.Proc.Rule
4003(c), 11 U.S.C.A. In re Nicole Energy Services, Inc., 423 B.R. 840 (Bankr. S.D. Ohio
2010).
Anyopinionsthatbankruptcyjudgeformedbasedontestimonygivenincourseofaprop-
erlynoticedanddulyheldevidentiaryhearingonrequestforturnoverdidnotderivefrom"ex-
trajudicialsource,"andcouldnotprovidebasisforbankruptcyjudge'srecusalunderextrajudi-
cial source doctrine. 11 U.S.C.A. 542; 28 U.S.C.A. 455. In re Johnson, 408 B.R. 123
(Bankr.S.D.Ohio2009).
Judge need not recuse himself based on subjective view of party, no matter how strongly
that view is held. 28 U.S.C.A. 455. In re Haas, 292 B.R. 167 (Bankr. S.D. Ohio 2003);
Influenced by prior litigation involving same party: Trial judge's remarks in an action
againstacruiseline,inwhichapassengerallegedthatabartenderputdrugsinherdrinkand
then sexually assaulted her, were reasonably sufficient to create a well-founded fear on the
partofthecruiselinethatitwouldnotreceiveafairtrial,andthus,thecruiseline'smotionfor
disqualificationofthejudgeshouldhavebeengranted;thejudge'sremarkssuggestedthatshe
had pre-existing unfavorable opinions about the management and litigation tactics of the
cruise line industry, and the remarks did not flow out of the judge's experiences in the case.
Royal Caribbean Cruises, Ltd. v. Doe, 767 So. 2d 626 (Fla. Dist. Ct. App. 3d Dist. 2000);
[TopofSection]
[ENDOFSUPPLEMENT]
17.Exclusions
Even though a basis for disqualification may exist, there are two broadly recognized ex-
clusions which may except a judge from the requirement to step asidethe remittal of dis-
qualificationasprovidedinthejudicialcodeandapplicationoftheruleofnecessity.
Remittal of Disqualification
The judicial canons provide a specific procedure for a judge to obtain the waiver from
counselandpartiesofgroundsfordisqualificationincertaininstances.Canon3.Dofthecode
of judicial conduct provides that where the basis for disqualification pertains to personal in-
vestmentsandinterestsintheoutcomeofthecasebythejudgeormemberofthejudge'sim-
mediatefamily,[69]ortotheinvolvementofthejudgeormemberofthejudge'sfamilyinthe
pending litigation as a party, counsel, witness or other interest,[70] and if the judge determ-
inesthatsuchcircumstanceisimmaterialorinsignificanttohiscontinuedparticipationinthe
case,hemayavoiddisqualificationthroughtheproceduretermedremittalofdisqualification.
Thejudgefirstdisclosesthedisqualifyingcircumstanceontherecordandtoallparties.There
isnospecifiedmethodofdisclosure.Itmaybealettertoallcounsel,whichisthenfiledinthe
caserecord,orastatementmadefromthebenchwhichisincorporatedintothecourtminutes.
If, after this disclosure, all counsel and all parties, independently of any participation by the
judge,agreeinwritingthatthecircumstanceisinsignificant,orimmaterial,orthatthefinan-
cial interest is insubstantial, the judge is not obligated to withdraw. The agreement of all
counselandpartiesmustbeinwriting,mustbesignedbyallpartiesandallcounsel,andmust
befiledinthecaserecord.[71]
Rule of Necessity
A second recognized circumstance which might exclude a judge from the requirement of
judicialrecusalexistswherenopracticalalternativeremainsforresolutionofthelitigationif
the judge withdraws. Simply stated, the rule is that a judge is not obligated to recuse even if
hehasapersonalinterestinthecaseifthereisnootherjudgetostepinandtrythecase.This
isreferredtoastheruleofnecessity.
CaseIllustration:
WhereagroupoffederalcircuitjudgesfiledanactionintheCourtofClaimstoseekaddition-
al compensation, the court of claims judges observed that all members of both courts were
ArticleIIIjudgesundertheconstitution,andthereforeallhadadirectandsubstantialfinancial
interest in the compensation issue. The court then observed that if the court of claims judges
disqualifiedthemselvesonthisground,therewouldbenojudgesavailabletotrythecase.The
judgesconcludedthattheywereobligatedtoremainonthecase,eventhoughtheyweretech-
nicallyobligatedtorecusethemselvesbecauseoftheirfinancialinterestintheoutcome,under
theruleofnecessity.[72]
This issue frequently comes up in litigation over constitutional issues, where members of
thejudiciaryareincludedinthecaseasparties,orwherealitiganttotheinstantcasehasother
cases filed where members of the judiciary are included as parties. For example, Turner v.
American Bar Assocation[73] was a case filed to claim the right to access unlicensed lay
counselincriminalcases,andU.S.v.Corrigan[74]wasacriminalprosecutionunderrevenue
laws.Bothcasesinvolvedtheissueofwhetheradefendantinacriminalcasecouldhaveac-
cesstolaycounsel.InTurner,allofthejudgesinthecircuitwerenamedasdefendantsinthe
pendingcase.InCorrigan,thedefendantfiledaseparatelawsuitonotherconstitutionalissues
in which he named all the judges in the circuit as defendants. In both cases, the trial judges
observed that the judicial canons and federal statutes would appear to require recusal, since
thejudgeswerenamedasdirectpartiesinthependinglawsuits,butthattheruleofnecessity
wouldapply.Sinceifallofjudgeswhowerenamedaspartieswererequiredtostepaside,no
onewouldremaintotrythecases;therefore,theassignedjudgeswerenotobligatedtorecuse
themselves.
C.ProceduresforDisqualification
18.Dutytorecuse
Under the judicial canons, a judge has a duty to recuse whenever grounds exist.[75] This
hasbeenheldtomeanthatnoformalactionbyapartyisrequiredtoinvoketheprovisionsof
the disqualification statutes or rules where grounds for mandatory disqualification exist, or
wherethegroundsfordiscretionarydisqualificationareobvious.[76]Ajudgemustvoluntarily
stepasideifthefactscastareasonabledoubtuponthejudge'simpartiality,regardlessofhow
orbywhomthosefactsareobtainedanddrawntothecourt'sattention.[77]
Asaconsequence,andfromempiricalknowledge,thegreatestnumberofactualdisquali-
fications result from the judge's voluntary act, upon identification of a circumstance giving
risetothebasisforthechallenge,eitheruponthejudge'sownrecognitionofthecircumstance
orfromaninformalcommunicationfromcounseldrawingittothejudge'sattention.Invirtu-
allyallofsuchinstances,assoonasthesituationispresented,thetrialjudgestepsaside.
Thefirststepinproceedingtojudicialdisqualificationbasedupongroundsofbiasorpre-
judicemaybetodonothingtoallowthejudgeanopportunitytorecognizethecircumstance
onhisorherown.Ifnothingtranspireswithinareasonabletime,counselmayinformallynoti-
fythecourtofthecircumstances,incasethejudgemightbeunaware.Thisisparticularlyap-
propriate where the basis for disqualification is not readily apparent from the pleadings, the
captionanddesignationofparties,ortheidentificationofcounselandfirms.Ifthesestepsare
unavailing,formalactionmaybenecessary.
Cases:
That an unreasonable person, focusing on only one aspect of the story, might perceive a
riskofbiasisirrelevantindeterminingwhetherjudicialrecusalisrequired.28U.S.C.A.455
(a).InreSherwin-WilliamsCo.,607F.3d474(7thCir.2010).
Recusal of a federal judge is required when a reasonable person perceives a significant
riskthatthejudgewillresolvethecaseonabasisotherthanthemerits.28U.S.C.A.455(a).
Burtonv.AmericanCyanamid,690F.Supp.2d757(E.D.Wis.2010).
Sua sponte duty: Judge's impartiality could not reasonably be questioned, though judge
had heard criminal defendant, prior to trial, make admissions on the record relating to his
guilt,andthus,judgewasnotrequiredtoactsuaspontetodisqualifyhimselffrombenchtrial;
defendant's admissions were part of pattern that preceded judge's involvement and continued
afterhepresided,inwhichdefendantwantedtoadmitthatheassaultedthevictimandtoex-
press contrition in the hope that it would be considered in imposing his punishment, and the
admissionsdidnotinvolve"disputed"evidentiaryfactsbecausetheywereconsistentwithad-
missionsmadetopoliceattimeofarrestandadmissionsmadeduringdefendant'stestimonyat
trial.CodeofJud.Conduct,Canon3(c)(1).Statev.Ortiz,83Conn.App.142,848A.2d1246
(2004);West'sKeyNumberDigest,Equity 49(1).
[TopofSection]
[ENDOFSUPPLEMENT]
19.Disqualificationwithoutcause
In nineteen states, a one-time right is given to each litigant to disqualify the sitting judge
assigned to the case without stating or proving any cause.[78] The rule in Idaho[79] is illus-
trative,ifnottypical.
Under Idaho procedure, all counsel is required to do is file a motion under the rule. No
groundsneedbestated,andnohearingisrequired.Thejudgeisobligatedtoenteranorderof
recusal upon presentation of the motion, if the statutory provisions have been met. The rule
containsstricttimedeadlinesandthemotionmustbetimely.Althoughthereareanumberof
minorexceptions,thedeadlinesinIdahorequirethemotiontobefiledwithintwenty-onedays
afternoticeoftheidentityoftheassignedjudgeorwithinsevendaysafternoticeofanyhear-
ingofacontestedmotionortrial,whicheverisshorter.Onlyoneperemptorychallengeisal-
lowedtoeachsidebyrule,althoughinmulti-partyactions,thejudgehasdiscretiontodeterm-
inewhetherthemultipleparties'interestsaresufficientlydiversetoalloweachofthemultiple
partiesaseparateright.[80]
The procedural rules and time requirements for the exercise of a peremptory or no-cause
challengedifferfromstatetostate,soitisessentialthatcounselexaminethespecificrulesof
theforumjurisdiction.Ifaperemptorychallengeisavailable,suchcanbeusedtoremovean
objectionable judge without exposing either counsel or the client to the vagaries of a motion
requiringstatedgrounds.
In the majority of states, and in the federal courts, disqualification without cause is not
available. If the judge does not voluntarily step aside, and if disqualification is still deemed
appropriatetothecontinuedlitigation,counselwillberequiredtostateandprovegroundsfor
thedisqualification.
Cases:
Notices requesting peremptory change of assigned judge, which were filed by attorneys
fortwojuvenileswhoweresubjecttodelinquencyproceedingsondayattorneyswereretained
by juveniles' parents, were properly filed within five-day period mandated by juvenile court
rule,whichperiodwastriggeredbyjuveniles'receivingnoticeofassignmentofjudge;neither
delinquency petitions nor citations to appear provided notice of assigned judge, there was no
indication that juveniles or their attorneys were aware of earlier, internal superior court ad-
ministrative order assigning all juvenile cases to this judge, and juveniles had not yet made
appearance where they could waive right to counsel, which was prerequisite to their person-
ally filing requests for change of judge. A.R.S. 8-221; 17B A.R.S. Juv.Ct.Rules of Proc.,
Rules 2(B), 10(D), 26; Rule 6(c) (1999). Denise S. v. Corsaro, 213 Ariz. 369, 142 P.3d 245
(Ct.App.Div.22006);West'sKeyNumberDigest,Judges 51(2).
[TopofSection]
[ENDOFSUPPLEMENT]
20.Formalmotion
Allstatesandthefederalcourtshavesomeprocedureforthepresentationofaformalmo-
tionchallengingthetrialjudgeforcause.Again,theruleinIdahoisillustrative,ifnottypical.
AmotionfordisqualificationforcauseundertheIdahorulemustbeaccompaniedbyanaffi-
davit of a party or counsel, stating the grounds for the motion and the facts upon which it is
based.Thejudgesoughttobedisqualifiedisrequiredtograntordenythemotionuponnotice
andhearinginthemannerproscribedfortheconsiderationofgeneralmotions.[81]
There is no specific federal rule of procedure covering disqualification motions, so mo-
tionsinfederalcourtaremadeunderfederalstatute,either28U.S.C.A.144or28U.S.C.A.
455. A 144 disqualification is only available where the party can prove an actual bias or
prohibitedinterestsunderspecificallydefinedcircumstances,whilea455disqualificationis
availableuponthegroundsthatthereisareasonablebasistochallengethejudge'simpartial-
ity. Since it is usually difficult to prove the contents of a judge's mind, most motions are
based,atleastinpart,ontheallegedexistenceofareasonablegroundtoquestionthejudge's
impartiality,andthereforefallunder455.
Cases:
Sentencing judge was not required to recuse himself from sentencing defendant for drug
and weapons charges for noting on the record that defendant had been a practicing vampire
sincetheageof13;defendantmadenomotionforrecusal,observationwasbasedonfact,and
vampirismwasmerelyconsideredincontextofdefendant'smentalhealthandforitsnovelty.
28U.S.C.A.455.U.S.v.Lawrence,88Fed.Appx.913(6thCir.2004);West'sKeyNumber
Digest,Equity 49(2).
Inamotiontodisqualifyafederaljudge,thequestioniswhetherawell-informedobserver
couldreasonablyquestionthejudge'simpartiality.28U.S.C.A.455(a).Burtonv.American
Cyanamid,690F.Supp.2d757(E.D.Wis.2010).
[TopofSection]
[ENDOFSUPPLEMENT]
21.FormalmotionNecessityandsufficiencyofaffidavit
Ifanaffidavitistobesubmitted,toeitherafederalorstatecourt,theaffiantmustbecom-
petentandthedocumentmustbeinternallycomplete.Theaffidavitmuststatespecificfactsto
supportthegroundsalleged.Avermentswhichareconclusionswithoutastatedfoundationof
underlyingfactswillgenerallynotsuffice.
Infederalmotions,thereisadistinctionintheshowingrequired,andthejudicialstandards
toward the showing made, under 144 and 455. Under 144, an affidavit is required, and
the court is required to accept the affidavit as true. If the grounds stated are sufficient under
thestatute,thejudgemustrecuse.[82]Under455,noaffidavit,assuch,isrequiredbecause
the judge is obligated under the statute to evaluate his or her own conduct. Anything which
callsasituationtothejudge'sattentionissufficienttosupportdisqualification,ifthesituation
requiresrecusal.Ifanaffidavitissubmitted,thecourtisnotobligatedtoaccepttheallegations
statedastrue.Thejudgeisallowedtomakehisorherowndeterminationsonthefacts,andto
basethedecisiononthemotiononsuchdeterminations.[83]
Instatecourtactions,therequirementsforanaffidavitandthestandardaffordedtheaffi-
davituponfilingvariesfromstatetostate.Referencemustbemadetothespecificruleorstat-
ute in the forum state. In Idaho, for example, the rule requires that an affidavit of a party or
theparty'sattorneymustaccompanyamotionfordisqualificationforcause.Theruleprovides
that an affidavit must state "distinctly the grounds upon which disqualification is sought and
thefactsreliedupon."[84]Conclusoryallegationsareinsufficient.[85]
Cases:
Allegations by defendant, in declarations submitted in connection with personal restraint
petition(PRP),thattrialjudge'sdaughterattendedpartiesatdefendant'shouseanddrankalco-
hol when she appeared to be under age 20, and that the judge's daughter was believed to be
friendswithoneofthevictims,wereinsufficienttowarrantareferencehearingtodetermine
whether the judge's impartiality, in prosecution that resulted in conviction of defendant on
multiplecountsoffurnishingliquortominors,sexualexploitationofminors,thirddegreerape
andseconddegreerape,mightbequestionedbyareasonableperson,absentevidencethatthe
trial judge had knowledge that his daughter was connected to the case. U.S.C.A.
Const.Amend.14;CJC3(D)(1).InreWiatt,211P.3d1030(Wash.Ct.App.Div.22009).
[TopofSection]
[ENDOFSUPPLEMENT]
22.FormalmotionTimelinessofmotion
Althoughrulesinsomestatesprovidethatamotionfordisqualificationforcausemaybe
made at any time,[86] rules in other states provide a time limit.[87] One federal statute[88]
hasnotimelimitforthepresentationofchallengestoasittingjudgewhichhasledsomefed-
eral courts to rule that motions can be made at any time,[89] even after a final ruling on the
case.[90]Theothergeneralfederalstatute[91]requiresthatapartymakea"timelyandsuffi-
cient"affidavitofcausewhichhasledotherfederalcourtstoinferthattimelinessisanimpli-
cit requirement in all cases under both statutes, and that a party is obligated to bring up
groundsfordisqualificationundereitherstatuteattheearliestopportunity.[92]
It has been held to be too late where one waits until after the judge has ruled on a con-
testedmatterandthenbringsupgroundsfordisqualificationwhichexistedandwereknownto
thepartyatanearlierstageofthecase.Inanextremeexample,IBMmovedtodisqualifythe
trialjudgeaftertenyearsoflitigationinthegovernment'santi-trustcase,basedonactsofal-
legedbiasandprejudicedatingtoeventsearlyinthecase.Theappellatecourtheldthemotion
untimely.[93]Ontheotherhand,wherethepartieswereunawarethatgroundsforrecusalex-
isteduntillateinthecase,courtshaveordereddisqualificationwithoutregardtothestageof
litigation. In one case, the trial judge did not realize until after the trial was completed and
judgment was rendered that he had inherited stock in one of the corporate parties. When this
cametolightduringtheappeal,anddespitetheargumentthatthejudgecouldnothavebeen
influenced by a financial interest he did not know he had, the appellate court concluded that
disqualification was mandatory. It directed that the judgment be vacated and remanded the
caseforanewtrialbeforeadifferentjudge.[94]
Although there are cases to the contrary, the weight of authority appears to require that a
motion to disqualify for cause must be brought on at the earliest practical opportunity after
counsel becomes aware of the grounds for such motion. These cases are clear that counsel
cannotwaittotestthejudicialwatersbeforedecidingwhetherornottoadvanceamotionfor
disqualification. If it appears that counsel was aware of a basis for recusal and waited until
after an adverse ruling to seek disqualification, the courts have held that an otherwise valid
motionisuntimely.
Cases:
Waiver: Board of education waived its right to move for disqualification of the court for
biasbybringingrecusalmotionfollowingjuryverdictandentryoffinaljudgmentforfemale
schoolemployeeinemploymentdiscriminationaction;boardhadconstructiveknowledgethat
plaintiff was a deaconess and her husband was a deacon in same 5,000 member church to
which the court belonged and to which court was a prospective deacon, since board member
hadalsoservedsamecongregationasadeaconessformanyyears,butboardelectedtodefer
raisingdisqualificationissueinhopethatajurywouldruleinitsfavor.28U.S.C.A.455(a).
Drake v. Birmingham Bd of Educ., 476 F. Supp. 2d 1341, 218 Ed. Law Rep. 354 (N.D. Ala.
2007);West'sKeyNumberDigest,Judges 51(2).
Trialjudgedidnotabusehisdiscretionindenyingdefendant'srequestforrecusal;defend-
ant did not raise the issue of the trial judge's alleged bias until he had received an adverse
judgment, failing therefore to afford the judge an opportunity to recuse himself before he
heardthecase.Pricev.Clayton,18So.3d370(Ala.Civ.App.2008),cert.denied,(Mar.13,
2009).
Terminatedprofessorwhowasactingproseinactionagainststateuniversity,afterheun-
successfully sought reemployment with university, failed to timely raise superior court's fail-
uretoruleonhisperemptorychallengetothejudge,andthereforefailedtopreservetheissue
for appeal; professor's peremptory challenge sufficiently conformed to the requirements, not-
withstanding that he incorrectly labeled his request, but he failed to raise the issue or make
anyefforttoobtainarulingontheperemptorychallengewhenitbecameapparentthatthetri-
aljudgewascontinuingtopresideoverthecase.RulesCiv.Proc.,Rule42(c)(1). Senguptav.
UniversityofAlaska,139P.3d572,211Ed.LawRep.481(Alaska2006);West'sKeyNum-
berDigest,AppealandError 242(1).
Althoughdefensecounsel'sineffectivenessinfailingtotimelyfilemotiontodisqualifytri-
aljudgewhohadapreconceivedandfixedviewastowhatsentencedefendantwouldreceive
if he was convicted warranted a new sentencing proceeding, it did not warrant the setting
asideofdefendant'sconvictionsforsexualbatterywithadeadlyweapon,burglaryofadwell-
ingwhilearmed,aggravatedassaultwithadeadlyweapon,andfalseimprisonment;although
counsel'sfailurerenderedtheresultofdefendant'ssentencingunreliableandunderminedcon-
fidenceinthesentenceultimatelyimposed,nothinginrecordunderminedconfidenceinjury's
determination of guilt. U.S.C.A. Const.Amend. 6. Thompson v. State, 990 So. 2d 482 (Fla.
2008);West'sKeyNumberDigest,CriminalLaw 1896.
Denial of former school district superintendent's motion for recusal was not abuse of dis-
cretion,inactiontoenjoinschoolboardfromterminatinghiscontract;motionwasfiledmore
than five days after superintendent learned of basis for recusal, and in any case, superintend-
ent'sdissatisfactionwithtrialcourt'srulingsandbare,unsupportedallegationsthattrialcourt
engagedinexpartecommunicationswithopposingcounseldidnotprovidesufficientgrounds
fortrialcourt'sdisqualification.UniformSuperiorCourtRule25.1.Jenkinsv.Smith,308Ga.
App.762,709S.E.2d23(2011).
Toprohibitlitigantsfrom"judgeshopping"andseekingasubstitutiononlyaftertheyhave
formedanopinionthatthejudgemaybeunfavorablydisposedtowardthemeritsoftheircase,
amotionforsubstitutionofjudgeasamatterofrightmustbefiledattheearliestpracticalmo-
mentbeforecommencementoftrialorhearingandbeforethetrialjudgeconsideringthemo-
tionrulesuponasubstantialissueinthecase.S.H.A.735ILCS5/2-1001(a)(2).Levaccarev.
Levaccare, 315 Ill. Dec. 280, 876 N.E.2d 280 (App. Ct. 1st Dist. 2007); West's Key Number
Putativefather'smotiontodisqualifytrialjudgeinadoptionandpaternityproceedingswas
tobefiledwithin14daysofthetimehekneworshouldhavediscoveredtheallegedbasesfor
disqualification,i.e.,thetimeoftrialjudge'sissuingorderdenyingfathercustodyofchildpur-
suanttohisfindingthatitwasnotinthechild'sbestinterest.MCR2.003(C)(1)(2008).Inre
MKK,286Mich.App.546,781N.W.2d132(2009),appealdenied,780N.W.2d839(Mich.
2010)andappealdenied,780N.W.2d839(Mich.2010).
[TopofSection]
[ENDOFSUPPLEMENT]
23.FormalmotionJurisdictionoverlitigation
Itisuniversallyheldthatonceamotiontodisqualifyajudgeisfiled,thechallengedjudge
cantakenoactioninthecase,otherthantodealwiththerecusalmotion,untiltherecusalmo-
tion is decided. Once a pleading challenging the judge is filed, whether styled motion, peti-
tion, notice or affidavit of prejudice, the challenged judge loses authority to rule over all fa-
cets of the case and may not act in any fashion except for matters necessary to resolution of
themotionfordisqualification.[95]
Ifajudgedoesactonanymatterofsubstanceduringthisinterim,thegeneralruleisthat,
unless there is a constitutional or jurisdictional defect which cannot be waived, the judicial
acts of a disqualified judge are voidable but not void. A North Dakota court summarized the
commonlawasfollows:
Whilethejudicialactofadisqualifiedjudgeisanerrorsubjecttovacationorreversal,it
hasgenerallybeenheldthatatcommonlawsuchactismerelyvoidablebutnotvoid,and
thatsuchanerrordoesnoteffectthejudge'sjurisdictionorrenderhisactssubjecttocol-
lateralattack.[96]
The acts of a challenged judge cannot be attacked or impeached collaterally, even where
thejudgeiseventuallydisqualified.[97]Whereajudgeattemptstoactinthefaceofproceed-
ings for disqualification, or after an order of disqualification, it has been held that a writ of
prohibition is a proper remedy,[98] and clearly the issued can be raised on appeal.[99] What
partiesmaynotdoisignorethejudge'sorders,evenwhereenteredafterthepurporteddisqual-
ification.AsanIdahocourtobserved,"theactsofadisqualifiedjudgearenotmerenullities;
theyaresimplyerroneousandliabletobeavoidedorreverseduponproperapplication."[1]
Cases:
Loss of jurisdiction: Trial judge who wrote the word "granted" on top of motion to dis-
qualify,thensignedanddatedthedocument,lackedjurisdictiontosubsequentlydenythemo-
tion to disqualify or to grant a motion to dismiss the complaint, even if judge mistakenly
signedmotiontodisqualifythinkingitrelatedtoadifferentaction;judge'sgrantingofmotion
to disqualify deprived him of any further authority to act in the case, and rendered his sub-
sequentordersvoid.West'sF.S.A.R.Jud.Admin.Rule2.160(f).Jenkinsv.Motorola,Inc.,911
So.2d196(Fla.Dist.Ct.App.3dDist.2005);West'sKeyNumberDigest,Judges 56.
[TopofSection]
[ENDOFSUPPLEMENT]
24.FormalmotionHearingofmotion
There is a significant divergence in procedure throughout the several states and federal
system with regard to who hears motions for disqualification. Local practice from state to
statediffersgreatlywithrespecttoparticularprocedures,andnoattemptismadeheretocover
allofthedifferentprocedures.
Therearethreegeneralpatterns,withspecificandpeculiarrefinementsfromstatetostate:
1. The most common procedure, applicable to a majority of the states and the federal
courts,isforthechallengedjudgetohearanddecidethemotion.Thejudgeispermittedto
referthemattertoanotherjudgebutisnotrequiredtodosobyruleorstatute.
2.Somejurisdictionsprovidethatthechallengedjudgemayhearanddetermineissuesper-
tainingtothetimelinessandthelegalsufficiencyofthemotionandsupportingpapers,but
may not rule upon the merits of the challenge. If the motion is deemed timely and suffi-
cient,andthechallengedjudgedoesnotvoluntarilystepaside,heisobligatedtorefercon-
siderationofthemeritsofthechallengetoadisinterestedjudge.
3.Finally,afewstatesrequirethatthemotionbereferredtoadisinterestedjudgeimmedi-
atelyuponfiling.Thechallengedjudgemaynotruleuponanyaspectoftheissue.[2]The
illustrations of the three categories are merely examples. Each jurisdiction has particular
rules and customs for the disqualification of judges, and counsel are cautioned to inde-
pendently research the precise legal requirements and the customs of the community be-
foreproceeding.
Idahoistypicalofthefirstcategory.Theissueofwhetherornotthetrialjudgeshouldbe
disqualified is an issue addressed to the sound discretion of the challenged trial judge. The
judgeisexpectedtohearandruleuponallaspectsofthemotion,inthesamemannerasany
other civil motion.[3] The rationale of allowing the trial judge to pass upon his or her own
qualificationstositispremisedupontheprinciplethat,sincethejudgehasadutytostepaside
if impartiality is subject to any reasonable question and an equally strong duty not to step
asideifimpartialityisnotinquestion,thechallengedjudgeisinthebestpositiontomakethis
determination, based upon his or her own thoughts. In Idaho, the judge's discretion is not re-
strictedbyruleorstatute.Heorshehasdiscretiontoreferthemotiontoanotherjudge,butis
notrequiredtodoso.
A slightly different approach is followed in Missouri. There, the judge has discretion to
hearandruleonthemotionprovidedthatthejudgeisnottestifyingfortherecordeitherby
testimony or affidavit. If the judge is to offer testimony for the record, then the challenged
judgemustrefertheissuetoadisinterestedjudge.[4]
Georgiaisillustrativeofthesecondapproach.Amotionfordisqualificationisexpectedto
be accompanied by an affidavit, stating the reasons for recusal. The trial judge examines the
materialsonlyforthepurposeofdeterminingwhetherthemotionistimelyandthecontentsof
the motion and affidavit are legally sufficient. The facts must be accepted as true, with the
onlyquestionbeingwhetherthefacts,whentakenastrue,stategroundsfordisqualification.If
thejudgedeterminesthatthematerialislegallysufficient,hemustreferthedeterminationon
themeritstoanotherjudge.[5]
California is illustrative of the third situation. The California judge may not rule on any
aspectofamotiontodisqualify.Ifthejudgedoesnotconsenttothedisqualificationandvol-
untarilyrefersthecasetoanotherjudge,heorshemustfileananswertotheapplicationand
referthematterforassignmenttoadisinterestedjudge.Ifthetrialjudgefailstofileananswer
tothemotion,sheisdeemedtohaveconsentedtothedisqualification.[6]
Thepointtobemadehereisthatcounselmustcarefullyexaminetherulesandstatutesof
theforumjurisdictionforthepreciseprocedures,formsandprocessestofollow.Althoughthe
principlesforachievingagivenresultmaybesimilar,ifnotidentical,fromstatetostate,the
permittedroutestothedesiredresultmaydiffersignificantly.
Cases:
Experttestimonyoflawprofessors,informofopinionsthatjudgeshouldrecuseherself
fromsecuritiesfraudclassactionsduetoherpurchasesandsalesofcertainstock,wasnotad-
missibleongroundsthatFederalRulesofEvidencewerenotapplicabletorecusalproceeding,
and that "all available guidance" should be received when considering recusal motion. 28
U.S.C.A.455;Fed.RulesEvid.Rule702,28U.S.C.A.InreInitialPublicOfferingSecurities
Litigation, 174 F. Supp. 2d 61, 57 Fed. R. Evid. Serv. 653 (S.D. N.Y. 2001); West's Key
Challenge to assigned judge for want of impartiality presents issue of constitutional di-
mensionwhichmustberesolvedandrulingmemorializedofrecordaftermeaningfuleviden-
tiary hearing. Clark v. Board of Educ. of Independent School District No. 89 of Oklahoma
County,2001OK56,32P.3d851,157Ed.LawRep.911(Okla.2001);West'sKeyNumber
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[ENDOFSUPPLEMENT]
25.Appellatereview
In certain instances, an extraordinary writ from an appellate court, mandamus or prohibi-
tion, may be available to force disqualification at an interlocutory stage, prior to the entry of
finaljudgment,ortopreventajudgefromproceedingwiththecaseinthefaceofamotionor
applicationforrecusal.[7]Theseextraordinarywritsareintendedonlytotestthejurisdictional
limits of the lower court and are not a substitute for appeal. They do not serve to require or
prevent any discretionary acts of the lower court, or to reverse a finding of fact by the lower
courtonacontestedissueifthedeterminationofdisqualificationturnsonsuchfact.Issuance
ofanextraordinarywritispredicatedupontheexistenceofaclearrighttowhichthepetition-
er is entitled as a matter of law.[8] This means that a writ to direct the disqualification of a
judgemayproperlyissueonlywhenthefactsareclearorundisputedandthegroundsforre-
cusalaremandatory.[9]
If there is not a basis for an extraordinary writ, an interlocutory appeal is generally not
availableonanorderdenyingdisqualification.Unlessthejurisdictionprovidesaspecificstat-
ute or rule for interlocutory appeals in this area, an appeal is usually available only after the
entryofafinaljudgmentorotherfinalorder.[10]Theappellatestandardofreviewisusually
heldtobethestandardapplicabletoreviewofdiscretionaryrulings.[11]
Ontheotherhand,thegeneralruleisthatadecisiongrantingamotiontorecuseisnotre-
viewableonappealatall.Anyerrorisharmlesssincetheonlyresultofanerroneousdisquali-
ficationisthetransferofthecasetoanotherjudge,whoispresumedtobeasfullyqualifiedas
thefirst.[12]Thereareexceptions,ofcourse.InWarrenv.SuperiorCourt,[13]thechallenged
judgeappealedadecisionfromacolleague,whohadbeenassignedtohearthemotiontodis-
qualify him from the case. The appellate court took jurisdiction, and reversed the second
judge'sruling.Itappearsthatjurisdictionoverthisappealwastakentoclarifytheshowingre-
quiredwhenasecondjudgehearsamotiontodisqualifyacolleague.Theunderlyingcasehad
proceededtoaconclusionwithanewjudge,andthepracticalissueofrecusalwasmootbythe
timeoftheappellatedecision.Theaspectofharmlesserrorwasnotdiscussed.[14]
Cases:
Whenconductinganobjectiveexaminationofthedisqualificationofajudgewhohashad
an attorney-client relationship with an attorney or law firm appearing before the judge, a re-
viewingcourtconsiders:(1)theextentoftheattorney-clientrelationship;(2)thenatureofthe
representation; (3) the frequency, volume and quality of contacts between the judge and the
attorney or firm; and (4) any special circumstances in the case that enhance or limit the im-
portanceoftheattorneyorfirmtothejudgeand/ortheappearanceofimproprietytothepub-
lic.52M.S.A.,CodeofJud.Conduct,Canon3,subd.D(1). Powellv.Anderson,660N.W.2d
107(Minn.2003);West'sKeyNumberDigest,Judges 46.
Before it can be said that a judge should have recused himself, the record must demon-
strate bias, prejudice, capricious disbelief, or prejudgment; if a judge thinks he is capable of
hearingacasefairly,hisdecisionnottowithdrawwillordinarilybeupheldonappeal.River-
walkCasino,LPv.PennsylvaniaGamingControlBd.,926A.2d926(Pa.2007);West'sKey
NumberDigest,AppealandError 840(1).
[TopofSection]
[ENDOFSUPPLEMENT]
25.5.Sanctionablerecusalmotionsandconduct
Cases:
Sanctions of $1,000 to be paid by plaintiffs and their counsel were warranted by actions
afterhearingonsummaryjudgmentmotionandtheirmeritlessappealfromthecourt'srefusal
to recuse itself; the plaintiffs displayed disrespect for the trial court by their response to
court's consideration of case law after the hearing, and appeal was an insult to the appellate
process. Johnson v. Amica Mut. Ins. Co., 1999 ME 106, 733 A.2d 977 (Me. 1999); West's
KeyNumberDigest,Costs 260(5).
Attorneys' motion to recuse judge, which motion alleged unethical conduct on the part of
judge,wasnotwarrantedbyexistinglaworagoodfaithargumentfortheextension,modific-
ation,orreversalofexistinglaw,andthus,sanctionswerewarrantedagainstattorneys;attor-
neyshadnoreasonablebasisforcontendingthatjudgeviolatedhisethicaldutiesinconsider-
ingexpartepetitionandinissuingaruletoshowcausegiventhatareasonableinquirybyat-
torneys would have shown that the routine practice of the circuit court was to consider ex
parte petitions for a rule to show cause and to issue rules to show cause upon the filing of a
sufficient affidavit by the petitioning party. West's V.C.A. 8.01-271.1. Williams & Con-
nolly, L.L.P. v. People for Ethical Treatment of Animals, Inc., 643 S.E.2d 136 (Va. 2007);
West'sKeyNumberDigest,AttorneyandClient 24.
[TopofSection]
[ENDOFSUPPLEMENT]
D.TacticalConsiderations
26.Selectionofprocedures
If there is no difficulty posed in the consideration of who might be selected to replace a
challenged judge, and where the jurisdiction permits a peremptory challenge to be made
without stating a reason, the peremptory challenge procedure to remove an unwanted judge,
regardlessofthegrounds,istheeasiestandleastcostly.
Whereoneormoreofthepotentialreplacementjudgesposeadifficulty,itbecomesadel-
icatetacticaldecisionwhethertospendtheperemptorychallengeonthefirstjudge,ortofilea
motion stating grounds. Suppose counsel decides that the grounds for disqualifying a given
judge are quite strong, although the reason still falls within the discretionary area. Suppose
further that there is another judge who could be selected that counsel also does not like, but
withweakergroundsforadisqualificationforcause.Counselmaydecidetofileaformalmo-
tionagainstthefirstjudge,andsavetheperemptorychallenge.
Therubcomesifthefirstjudgedeniesthemotionanddecidesnottostepaside.Itisthen
toolatetoadvanceaperemptorychallenge,sincethedecisiononthemotiontorecuseisade-
cision on a contested matter and usually peremptory challenges cannot be advanced after a
judge has ruled on a contested motion.[15] If an interlocutory appeal or extraordinary writ is
notavailabletooverrulethejudge'sdecision,counselwillbestuckwiththefirstjudge.While
thisisnotanimpossiblesituation,itcanbeuncomfortableifcounselhasbeenintemperateor
extremetoanydegreeinadvancingthemotion.
27.Informalorformalproceedings
It is not always necessary to institute formal proceedings for the disqualification of a
judge.Infact,althoughstatisticsarenotmaintained,manyrecusalsoccurwithoutformalmo-
tionorapplicationatall.Sincejudgeshaveanethicalobligationtostandasidefromanycase
wheretheirimpartialitycanreasonablybequestioned,mostjudgeswillvoluntarilyandimme-
diatelydosoassoonasanycircumstancegivingrisetoareasonfortherecusalisidentified.
Where the reason for the judge's recusal is not readily apparent from the pleadings, or
whereitotherwiseappearsthatthejudgemightnotbeawareofthecircumstance,aninformal
letter to the judge or an informal meeting in chambers, with copies or notice to all counsel,
maybeallthatisrequired.
Even if a situation might not automatically require a judge's recusal, any circumstance
whichreasonablycausescounselconcernisusuallysomethingwhichmostjudgeswouldwant
toconsiderindeterminingtheappearanceofimpartiality.Mostjudgeswouldappreciatebeing
informedoftheexistenceofsuchacircumstanceatanearlystageofthelitigation,andwould
notresenttheadviceifhandledinatactfulmanner.Thekeyisatactful,properlydeferential
statementofthecircumstancesintendedtoappealtothejudge'spersonalsenseofethicalduty.
This is not the place for exagerated conclusions of bias and prejudice. If counsel bludgeons
thejudgewithvituperative,hyperbolicallegationsofprejudice,thesituationmaybeworsened
bythecommunication.[16]
28.Formalmotiontorecuse
Thetypicalprocedureforbringingaformalchallengeisthroughamotionsupportedbyaf-
fidavits.Themotionshouldcontainaclearstatementofthegroundsuponwhichthedisquali-
fication is sought. The affidavit should contain a clear statement of facts demonstrating the
circumstancesuponwhichtheallegationofbiasispremised.[17]
Itisamistaketotreatthepreparationofamotionandaffidavitofrecusalinthesameman-
nerasthepreparationofageneralcivilcomplaint.Pleadingmattersgenerallyandintheform
ofconclusionswillnotsuffice.[18]Mostcourtsrequiretheaffidavitstobespecific,basedon
personal knowledge, with an adequate foundation demonstrated within the affidavit, and
withouttaintofinadmissiblehearsay.[19]Theexpectationisthattherecusalissuewillbede-
cidedonthepaperswithouttestimony.Itisacriticalstepintheprocesstoensurethatthemo-
tionandsupportingaffidavitsarecompleteandcarefullydrafted.
Inmostjurisdictions,thechallengedjudgewillconsideranddecidethemotiontorecuse.[
20]Inalloftheremainingjurisdictions,thechallengedjudgecanbeexpectedatleasttoread
alloftheallegationsadvanced.Further,mostlawyersinmostjurisdictions,withthepossible
exceptionofafewhugemetropolitancourts,canexpecttoappearbeforethechallengedjudge
againinfuturecases.
Under these circumstances, and unless the lawyer intends to challenge the judge in every
futurecasefortherestoftheirprofessionallives,thereismuchatriskwithlittletogainwhere
thechargingallegationsarecouchedinanythingbutthemostcircumspectanddeferentiallan-
guage. In the ordinary case, it is unnecessary to inflate the pleadings with pejorative hyper-
bole, conclusions and overstated allegations of prejudice and bias. While it may be tolerated
to accuse an ordinary defendant of "flagrant," "wanton," or "reckless" negligence, or a
plaintiff with "oppressive," "egregious" or "malicious" misconduct, such hyperbole is totally
out of place in any papers submitted to seek recusal of a sitting judge. This is especially im-
portantwherethechallengedjudgewillreadthepapersanddecidetheissue.
Sincethemodernstandardrequiresrecusaluponevenaquestionoverthejudge'simparti-
ality, and since the judge is duty bound to recuse any time the call is even close, all that
shouldberequiredinthemovingpapersisanunvarnishedstatementofthegrounds,writtenin
the language of the statute or rule, supported by an austere statement of the circumstances.
Themovingpapersmustcontainastatementoffacts,andthefactsmustconstitutearecogniz-
able basis for disqualification under the rule or statute applicable to the jurisdiction. But un-
lesstheconnectionbetweenthestatedfactsandthegroundsforrecusalisundulyobtuse,there
isnonecessityforcounseltoevenallegetheconclusions,muchlessinflatethem.Theconnec-
tion to the grounds established by rule or statute should be obvious from the statement of
facts.Ifitisnot,moredetailshouldbeaddedtothestatementoffactsratherthanattempting
toinflatethemotionwithhyperbolicconclusions.
Cases:
Rocks and shoals: Sentence of maximum of five days in jail was appropriate under cir-
cumstances surrounding attorney's contemptuous behavior toward temporary judge in class
action;attorneyhadbeenwarnedpriortothefilingofdisqualificationstatementagainstjudge
thatthefilingofafalsestatementofdisqualificationwascontemptuous,allsixallegationsof
misconductwerefalse,andorderofcontemptwassufficientwithrespecttofiveofthem.Fine
v. Superior Court, 97 Cal. App. 4th 651, 119 Cal. Rptr. 2d 376 (2d Dist. 2002), as modified,
(Apr. 11, 2002) and review denied, (May 22, 2002); West's Key Number Digest, Contempt
70.
[TopofSection]
[ENDOFSUPPLEMENT]
29.Defenseconsiderations
If an opponent advances a challenge against the assigned judge, responding counsel may
join,resistorstayneutral.Whilepartoftheanalysisisthesame,thereareparticularfeatures
totheanalysiswhentheothersidehassubmittedanobjectiontothesittingjudge.
Theknee-jerkreaction,thatanythingtheothersideproposesshouldbeopposed,hasacer-
tainintrinsicappeal.Italignstheresistingsidewiththejudgeatanearlystage,thereislittle
risk of offending the new judge even if the challenged judge is disqualified, and it offers at
leastsomeopportunitytotestthemettleoftheoppositiononanearlycollateralissue.
On the other hand, it would serve no purpose to defeat the opponent in an attempt to un-
seatthejudgeifgroundsdoexist.Thismightresultinhavingtheentirecasereversedforretri-
al on appeal. The matter requires the same analysis as if the resisting party was considering
thechallengeitself.Ifstatutorygroundsdoexistformandatoryrecusal,orifthefactsareclear
thatthejudge'simpartialityhasbeencompromisedbyeventsoutsideofthelawsuit,itmaybe
in the client's best interest to join in the challenge, or at least not oppose the opponent's mo-
tion.
Cases:
Districtjudge'scomment,basedonobservationsmadeduringdrugprosecution,thatthere
wasnothingimpairingdefendant'sability,andschedulingofsentencingonsamedayascom-
petency hearing did not display a deep-seated favoritism or antagonism that would make fair
judgment impossible, and thus judge was not required to recuse himself from competency
hearing; at competency hearing court received medical reports and heard testimony from de-
fendant, his trial counsel, a physician and a nurse, court issued detailed well reasoned order
findingdefendantcompetentduringtrial,andjudgestatedthatifhehadmadehisminduphe
would not have conducted a competency hearing. 28 U.S.C.A. 455. U.S. v. Denton, 434
F.3d1104(8thCir.2006);West'sKeyNumberDigest,Judges 49(1).
Fatherdidnotmeethis"heavyburden"toovercomethepresumptionofimpartialityandto
provepersonalbiasonthepartofthehearingjudgesoastowarrantjudge'srecusalinaction
broughtbymother,seekingcostsshehadexpendedinsecuringchild'sreturntoUnitedStates
afterfatherhadabductedchildandtakenhimtoTurkey;father'sbiasargumentrestedentirely
upon comments the hearing judge made about facts he was learning as hearing progressed,
and accordingly, any negative opinions the judge acquired about father were based on the
evidence,i.e.,werederivedinthecourseofajudicialproceeding,andhencewerenot"person-
al."Corapciogluv.Roosevelt,170Md.App.572,907A.2d885(2006);West'sKeyNumber
Wifewaivedforappellatereviewanyargumentconcerningtrialcourt'sallegedbiasorim-
proprietyindivorceproceeding,whereshefailedtoquestiontrialjudge'simpartialitybyfiling
amotiontorecuseduringtrial.Eldridgev.Eldridge,137S.W.3d1(Tenn.Ct.App.2002),ap-
pealdenied,(Mar.10,2003);West'sKeyNumberDigest,Equity 179.
[TopofSection]
[ENDOFSUPPLEMENT]
II.ElementsofProof
30.Initialanalysis;checklist
[]GroundsformandatoryrecusalunderCodeofJudicialConduct
[] Recusal is required regardless of substance or degree, and regardless of whether the
judgewouldactuallybeinfluencedbythecircumstance[411]
Thejudgehasanactual,personalbiasorprejudicefororagainstapartyoraparty's
attorney
The judge or a member of the judge's former law firm represented a party in some
connection to the instant proceeding, while the judge was associated with the firm in
privatepractice
Judge or a member of the judge's former law firm has been a material witness con-
cerning any matter in controversy, while the judge was associated with the firm in
privatepractice
Thejudge,judge'sspouseorjudge'sminorchildhasafinancialinterestinathesub-
jectmatterinsuit,orinanypartytothesuit,orholdsanyotherinterestwhichcouldbe
substantiallyaffectedbytheoutcomeofthesuit
The judge, judge's spouse or relative within the third degree of consanguinity is a
partytothesuit,orisanofficer,directorortrusteeofapartytothesuit
Thejudge,judge'sspouseorrelativewithinthethirddegreeofconsanguinityislikely
tobeamaterialwitnessintheproceeding
Thejudge'sspouseoranyrelativeofthejudgeorjudge'sspousewithinthethirdde-
greeofconsanguinityisactingasacurrentlawyerforanyparty
[]DiscretionarygroundsforrecusalundertheCodeofJudicialConduct[1216]
[]Requiresashowingthatthecircumstanceisofsubstance,andeitherwouldinfluencethe
judgeorwouldleadonetoreasonablyquestionthejudge'simpartiality[12]
Apersonalbiasorprejudicefororagainstapartyoraparty'scounsel
Personaltotheindividual,notgeneraltothecauseorthelaw
Fromanextrajudicialsource
Personalknowledgeofdisputedevidentiaryfactswhichareormightbematerialto
thecase
Materialtoadisputedissue
Fromanextrajudicialsource
Any other circumstances under which the judge's impartiality might reasonably be
questionedtheappearanceofimproprietystandard
Cases:
Litigant relying upon "pervasive bias" exception, as basis for disqualifying judge for al-
leged bias resulting from events occurring in course of present proceedings, must show that
thoseeventsdisplayadeep-seatedandhighdegreeofantagonismorfavoritism. 28U.S.C.A.
455.InreHaas,292B.R.167(Bankr.S.D.Ohio2003);West'sKeyNumberDigest,Judges
49(1).
Burden of proof: Plaintiff's motion to disqualify trial judge was legally insufficient, and
impermissibly shifted burden of identifying prejudice or bias from the litigant onto the trial
court, and thus, writ of prohibition was not warranted, where motion did not allege any facts
orreasonstodisqualifytrialjudge,didnotincludeanyfacts"specificallydescribing"anypre-
judiceorbiasofjudge;rather,motionwasablanketmotionaskinganytrialjudgeassignedto
the case to recuse himself or herself if he or she could not be fair. West's F.S.A.
R.Jud.Admin.Rule 2.160(c, d). Carrow v. The Florida Bar, 848 So. 2d 1283 (Fla. Dist. Ct.
App. 2d Dist. 2003), review dismissed, 858 So. 2d 330 (Fla. 2003); West's Key Number Di-
gest,Judges 51(3).
The party alleging judicial bias must show that the trial judge's action and demeanor
crossed the barrier of impartiality and prejudiced the party's case. J.M. v. M.A., 928 N.E.2d
230(Ind.Ct.App.2010).
Burdenofproof:Atrialjudgeispresumednottobebiasedorprejudiced,andapartyal-
leging bias or prejudice must set forth evidence to overcome the presumption of integrity.
Ellerv.Wendy'sInternatl.,Inc.,142OhioApp.3d321,755N.E.2d906(10thDist.Franklin
County2000);West'sKeyNumberDigest,Judges 51(4).
[TopofSection]
[ENDOFSUPPLEMENT]
31.Exclusionsandexceptions;Checklist
[]Remittalofdisqualification[17]
[]GroundsfordisqualificationunderCanon3C(1)(c)(immediatefamilyfinancialinterest)
or Canon 3C(1)(d) (involvement by more remote family member) may be waived by
partiesandcounsel[17]
Requiresdisclosurebyjudgeonrecordandtoallcounselandparties,theexistenceof
thebasisfordisqualification
Requiresallpartiesandlawyersagreeinwritingthatthejudge'sinterestisimmaterial
orthefinancialinterestisinsubstantial
Partiesandlawyersmustagreeindependentlyofanyparticipationbythejudge
Writtenagreementtobecomepartofrecord
[]RuleofNecessity[17]
Disqualificationcanbedeniedifnootherjudgeisavailabletoresolvethelitigation
32.Proceduresforseekingrecusal;Checklist
[]Peremptorychallengeormotionwithoutstatinggrounds[19]
Onlyavailableinsomestates
Mustbeexercisedearly;stricttimerequirements
Onlyavailableonce
[]Informalcommunicationwithjudge[27]
Basedonjudges'selfimposeddutytorecusewhengroundsexist
Deferential advice of the existence of a basis for recusal, presented by letter or in
chambers
Must include copies of all communications to other counsel, and other counsel must
beincludedinanyprivatemeetingwiththejudge
[]Formalproceedings[2025,27,28]
Institutedbymotionorapplicationtothecourt
Mustbeaccompaniedbyanaffidavitstatingfactssufficienttodemonstratetheexist-
enceofabasisforthedisqualification
Notsufficienttoonlystateconclusionsorunsupportedallegations
Heardinthemannerofacivilmotion
[]Appellatereview[25]
Extraordinarywritofmandamustorequiredisqualification
Mustbebasedonmandatorygroundsforrecusalonclearorundisputedfacts
Notavailabletoreviewdiscretionaryrulingoftrialjudge
Notasubstituteforappeal
Denialofdisqualificationmayberaisedonappealafterconclusionofcase
Grantingoforderofdisqualificationisordinarilynotappealable
III.ModelCorrespondence,MotionsandDiscovery
33.Introduction
The forms and suggestions here are intended to be generic. Where specificity is needed,
theyarebasedontheIdahorulesandstatutes.Theformalpartsofmotionsandaffidavits
maydiffersomewhatfromcourttocourt,butthesubstanceofthepapersshouldnot.The
exampleshereareforillustration,ofcourse,andcounseliscautionedtoexaminethespe-
cificpleadinganddraftingrulesintheforumjurisdiction.
34.Informalcommunications
Theimportantaspectofinformalcommunicationswiththecourtonthesubjectofdisqual-
ificationisthattheobjectisnottopersuadethejudgetorecuse,buttoinformthejudgein
orderthatheorshecanmakethenecessarydecision.Theconceptofsendinganinformal
letter as a means of obtaining an order of disqualification is premised upon the principle
thatthejudgeisdutyboundtowithdrawvoluntarilywhenevercircumstancesgivingriseto
even a question over impartiality are called to the judge's attention. It should be com-
pletelyunnecessary,andperhapsevenimpertinent,toarguetheissue,toincludeextensive
citations to judicial canons or other authorities, or to even hint of consequences if the
judgedoesnotaccedetocounsel'srequest.
Instead, counsel should merely state the circumstances that have come to light in an aus-
tereandnon-confrontationalmanner,indicateareferencetothejudicialcode,ruleorstat-
utethatisimplicatedifsuchisnotobvious,andclearlyindicatethatthedecisionofwhat
to do with the information is being left up to the judge. In all but the truly exceptional
case,thejudgewillnotneedtoberemindedthatactionisnecessaryoncegroundsforre-
cusalarerevealed.
35.Sampleletterstojudge
The first letter presents a circumstance which would require mandatory recusal unless
counselconcurredinaremittalofdisqualificationunderthecanons.[21]Thesecondandthird
letterspresentasuggestedmethodofreplyingtoarequestbythejudgeforremittalofdisqual-
ification.
Circumstance of Mandatory Recusal
DearJudge____________:
Inreviewingcorporaterecordsproducedindiscoveryby____________[plaintiff corpora-
tion],theplaintiffinthematterof____________versus____________nowpendingbe-
foreyou,wecameacrossthefollowinginformation.
Accordingtothestockownershiprecords,____________[name],of____________[city],
whomweunderstandtobeyourfather,istherecordownerof____________[number] of
shares of stock in ____________[corporation], which is the parent corporation of the
plaintiff in this case. These shares of stock are registered to your father as custodian for
____________[name],aminor,whomweunderstandtobeyouryoungson.Accordingto
thecorporaterecords,thestockwasacquiredinthreeblocks,inDecemberofeachofthe
years ____________, ____________ and ____________. We assume from this that these
transactionsreflectChristmasgiftsbyagrandfathertohisgrandson.
By copy of this letter, Mr. ____________ and Mr. ____________[counsel for adverse
parties] arebeingadvisedofthesecircumstances.
Respectfullyyours,
Letter Accepting Remittal of Disqualification
We have your advice of ____________[date] wherein you disclosed the ownership of
sharesofstockintheplaintiffcorporationbyyourfatherascustodianforyourson,andin-
dicatedthatyouintendedtorecuseyourselffromthiscaseunlessbothpartiesagreeother-
wise.
We have reviewed this matter with our client, and have agreed that the ____________
sharesofstockinvolvedinthisinvestmentisaninsubstantialfinancialinteresttoyouand
would be immaterial to your participation in this case. We do not seek your disqualifica-
tiononthisground,andhavenoobjectionifyoucontinuetopresideoverthecase.
Bothourfirmandourclienthavesignedthislettertoindicateourjointacquiescence,asis
required by the judicial canons.[22] We confirm that this decision was made independ-
entlyofanyparticipationbyyou.Thisletterwithoursignaturesmaybefiledasouragree-
menttoyourdecisiontoremainonthecase.
Respectfullyyours,
Letter Rejecting Remittal of Disqualification
We have your advice of ____________[date] wherein you disclosed the ownership of
shares of stock in the plaintiff's parent corporation by your father as custodian for your
son, and indicated that you intended to recuse yourself from this case for this reason, un-
lessbothpartiesagreetoaremittalofdisqualification.
Wehavereviewedthismatterwithourclient.Althoughthenumberofsharesheldisrelat-
ivelysmall,ourclientisuncomfortablewiththeinferencethatyourfathertruststhiscom-
pany enough to make even a small long term investment in it for your son. We have ex-
plained to our client that judges are expected to compartmentalize these matters, but our
client would be more comfortable if this matter were to be transferred to a judge totally
unconnectedtoeitherparty.
Therefore,weadvisethatthe____________[party] doesnotconcurtotheremittalofdis-
qualification you proposed. Please ask your clerk to advise us when the new judge has
beenassigned.
Respectfullyyours,
Informal Letter (Discretionary Grounds)
We are writing to inform you of certain details concerning the case of ____________ v.
____________, which recently came to light in discovery, and of which you may not be
aware.
Wehavelearnedfromthecorporaterecordsthatatonetimeyouwereanassociatecounsel
with the general counsel's office of ____________[corporation]. While you no doubt re-
call your association with this company, you may not recall that during this time, it ac-
quiredtheplaintiffcorporationasawhollyownedsubsidiary.Foryourconsideration,we
advise that issues in this case will involve the formulation of business practices and
policies of the plaintiff corporation dating back to the time you were associated with the
generalcounsel'sofficeoftheparentcorporation.Wedonotexpectthatyouwillbeawit-
ness, but we do expect that interoffice memoranda may be offered as exhibits which will
containyournameinsomecapacity.Wehaveidentified_______[number] ofsuchdocu-
mentstodate,andourexaminationofrecordsiscontinuing.
Inaddition,weexpectthatamajorwitnessinthiscasewillbe____________[name],the
president and CEO of the plaintiff corporation. At his deposition, which was concluded
lastweek,____________advisedthathewasclosepersonalfriendofyours.Foryourcon-
sideration, we advise that we expect ____________ to offer testimony on virtually all of
theissuesinthecase,andweexpectthathistestimonywillbevigorouslycontested.
Wehavereviewedthisletterwithcounselfortheplaintiff,andtheyagreethatthisinform-
ation should be provided to alert you to these circumstances. If you need further details,
pleaseadvise.
Respectfullyyours,
The point to make in these sample letters is that it is not necessary to load them up with
accusations,argumentsorbombasticcitationstoauthority.Counselshouldexpectthatthe
judge will instantly know from a global reference to the circumstance whether or not the
actualdetailsofthejudge'sinvolvementwouldrequiredisqualification.
Ifthejudgeisimperceptivesuchthatasimple,discreteheadsupisnotsufficient,thenthe
informal approach probably would not work anyway. Counsel should prepare a formal
motion.
36.Peremptorychallengemotion
Where available, the peremptory challenge or disqualification without cause is usually
presentedbymotion,whichneedstatenoreason.[23]Themotionrequiresnohearing,andis
grantedex-parteuponsubmission.Somecourtsrequirecounseltosubmitaformoforder,oth-
ercourtssupplytheirown.
MotionforDisqualificationofJudgeWithoutCauseUnderRule_______
Comesnowthe____________[party] andrespectfullymovestodisqualifytheHonorable
____________[judge] without cause, pursuant to Rule ____________[citation to rule].
The undersigned counsel certifies that no prior disqualifications under the rule have been
sought in this case, that this motion is timely under the rules, and that this motion is not
madetohinder,delayorobstructtheadministrationofjustice.
Dated_______
OrderofRecusalWithoutCause
Uponapplicationof____________[party],Iherebyrecusemyselffromthiscasepursuant
to Rule _______[citation to rule]. I direct that the ____________[court official respons-
ible for case assignments] reassign this case to a new judge forthwith, and so notify all
parties.
ITISSOORDERED.
Dated_______
37.Noticeofreassignment
Depending upon local custom, these papers may be prepared by the attorney or by the
clerk'soffice.
NoticeofReassignment
Toallpartiesandcounsel:
Take notice that upon the recusal of the Honorable ____________[recused judge], the
above entitled case has been reassigned to the Honorable ____________[new judge],
whoseresidentchambersareat____________[address].Allmattersscheduledbeforethe
Honorable____________[recused judge] mustberescheduledbycounselbeforetheHon-
orable____________[new judge].
Dated_______
38.Motionfordisqualificationforcause(mandatorygrounds)
Motions for disqualification for cause must state the specific ground upon which the dis-
qualificationissought,andbesupportedwithacompetentaffidavitoffactsdetailingthecir-
cumstanceuponwhichthemotionisbased.[24]
Thefirstexamplepresentsamotionformandatoryrecusalupongroundsthatamemberof
thejudge'sfamilyholdsafinancialinterestinaparty.
MotionforDisqualificationofJudgeforCause
Comesnowthe____________[party],defendantintheaboveentitledmatter,andrespect-
fully moves for an order disqualifying the Honorable ____________[judge] from further
participationinthiscase,pursuanttoCanon3.CoftheCodeofJudicialConductandRule
____________theRulesofCivilProcedureofthiscourt.
Thegroundsforthismotionarethataclosememberofthejudge'simmediatefamilyholds
a financial interest in the parent corporation to the plaintiff, which requires recusal as a
matteroflaw.Thefactsuponwhichthemotionisbasedareasfollows:
1. The plaintiff, ____________[name], in the captioned lawsuit now pending before the
courtisacorporation.Sharesofstockintheplaintiffcorporationarenotpubliclytradedor
held because the plaintiff corporation is a wholly owned subsidiary of ____________
[parent corporation]. Shares of stock in the parent corporation are publicly owned and
publiclytradedontheNewYorkStockExchange.Thetransferagentforthisstockisthe
____________ bank of New York City, New York. See the affidavit of ____________
[representative of plaintiff corporation] attachedheretoasExhibitA.
2.Accordingtotherecordsofthetransferagent,certainsharesofstockin____________
[parent corporation] areregisteredinthenameof____________[name] ascustodianfor
____________[name] aminor.Seetheaffidavitof____________[representative of trans-
fer agent bank] andtheexhibitsthereto,attachedheretoasExhibitB.
3.Accordingtoinformationandbelief,theminornamedabove,____________[name],is
theminorchildofJudge____________,whichchildlivesathomewiththejudgeandhis
wife. The custodian of shares named above, ____________[name], is the father of Judge
____________andthepaternalgrandfatheroftheminorchild.Plaintiffdoesnothavean
affidavit to these facts, but believes them to be common knowledge within the court;
plaintiffrequeststhatthecourttakejudicialnoticeofthesefactswithoutfurtherproof,or
ifproofisrequired,plaintiffrequestsleavetosupplementthismotion.
3.Plaintiffsubmitsthatthesharesofstockheldbythefatherofthejudgeascustodianfor
the child of the judge constitute a financial interest in the pending lawsuit by one within
the third degree of consanguinity to the judge, which requires recusal as a matter of law
pursuanttoCanon3.C.oftheCodeofJudicialConductandtherulesofthiscourt.
Plaintiffrespectfullymovesfortheentryofanorderaccordingly.
Dated_______
39.Motionfordisqualificationforcause(discretionarygrounds)
Thesecondexampleisamotionforrecusalupondiscretionarygrounds,baseduponanal-
legedquestiontoimpartialitywhichismoredetailed.
MotionforDisqualificationofJudgeforCause
Comes now the defendant and respectfully moves for an order disqualifying the Hon.
____________[judge] fromfurtherparticipationinthiscase,pursuanttoCanon3.Cofthe
CodeofJudicialConductandRule____________oftheRulesofCivilProcedureofthis
court.
The grounds for this motion are that because of the judge's prior connections to
____________[plaintiff corporation], his personal knowledge of potential facts material
tothedispute,andhisclosepersonalfriendshipwithamaterialwitnessattrial,thereisa
reasonably based question over the impartiality of the judge towards the plaintiff and
againstthedefendantinthiscase.
Thefactsuponwhichthismotionisbasedareasfollows:
1. The plaintiff corporation, ____________[name], in the captioned lawsuit now pending
beforethecourtisawhollyownedsubsidiaryof____________[parent corporation].Ac-
cording to corporate records, Judge ____________ was employed by the parent corpora-
tion between ____________ and ____________[dates], as a lawyer in the office of the
general counsel. During this time, his immediate superior at the company was
____________[name],whowasthentheassistantgeneralcounselfortheparentcorpora-
tionandisnowleadcounselfortheplaintiffinthisaction.
2. During the time that Judge ____________ was employed with the office of general
counselof____________[parent corporation],itacquireditsinterestintheplaintiffcor-
poration as a wholly owned subsidiary. Judge ____________ worked on the acquisition,
and became familiar with the operations of plaintiff corporation. After the merger, Judge
____________'s duties with the office of general counsel of the parent corporation in-
cludedoversightofthebusinesspracticesoftheplaintiff,andhebecamefamiliarwiththe
formationofbusinesspracticesandpolicieswhichtheplaintifffollowstothisday.
3. Although Judge ____________'s involvement with the plaintiff corporations's affairs
datesbackmanyyears,theissuesinthislawsuitinvolvebusinesspracticesoftheplaintiff
which date back to the time of its acquisition by the parent corporation, and to the time
whentheJudgewasemployedbytheparentcorporation.Counselforthedefensehaveex-
amined extensive records of the plaintiff, including records developed by the company
duringtheacquisitiontimeframe,andhaveuncoveredatleast_______[number] ofdocu-
ments which were either written by, written to, or include a reference to Judge
____________.AlthoughthereisnoindicationthatJudge____________willbeawitness
at trial himself, it is expected that records with his name will become exhibits or will be
offeredasexhibitsattrial.
4. During this time frame, Judge ____________ became friends with ____________
[name],whowasthenanexecutivewiththeparentcorporationandwhoworkedwiththe
Judge in the acquisition of the plaintiff corporation. When Judge ____________ left the
parentcorporationforprivatepractice,____________remainedbehindandeventuallybe-
came the CEO of the plaintiff. He remains in that position today. He is expected to be a
majorwitnessinthetrialofthislawsuit.Itisexpectedthathistestimonywillbedisputed
inmanyareas,andthathiscredibilityasawitnesswillbechallenged.
5.Accordingtothedepositiontestimonyof____________[plaintiff's CEO],heandJudge
____________are,andformanyyearshavebeen,"fastfriends."Theyarefrequentsocial
guests in each other's homes, they have taken vacation trips together with their families,
andtheyarefrequentgolfingcompanionsat____________countryclub.Thejudge'seld-
estson,____________,ismarriedto____________'s[plaintiff's CEO] daughter,andthis
couple have three children who are the grandchildren in common of the judge and
____________[plaintiff's CEO].
Theevidenceuponwhichtheseassertionsarebasediscontainedinthemotionrecordsub-
mittedcontemporaneouslyherewith,andconsistsofthefollowing:
a.Thedetailsoftheplaintiffandparentcorporateorganization,theacquisitionofplaintiff
by parent corporation, and the interlocking relationship that exists today are set forth in
plaintiff's answers to defendant's interrogatories numbered ____________ through
____________,whichareincludedinthemotionrecordatTabA;
b. Judge ____________'s employment with the company is documented by an extract of
personnel records from the parent corporation and a series of interoffice memoranda
identifyingthejudgeasacorporateattorneywiththegeneralcounsel'soffice,whichhave
beenauthenticatedbyadmissionofthecompanyandwhichadmissionandrelevantdocu-
mentsareincludedinthemotionrecordatTabB;
c.Acopyofrelevantextractsfromthedepositionof____________[plaintiff's CEO] per-
tainingtotheissueofthewitness'sfriendshipwithJudge____________isincludedinthe
motionrecordatTabC;
d.Theaffidavitof____________[name],thedefendant'schieffinancialofficer,astothe
issuestobepresentedandtheimportanceof____________[plaintiff's CEO] testimonyis
includedinthemotionrecordatTabD.
Defense counsel was unaware of Judge ____________'s involvement in the affairs of the
plaintiff company, or of his close friendship with ____________[plaintiff CEO] until the
recent deposition of ____________[plaintiff CEO]. The deposition of ____________
[name] wasconcludedon_______[date],andthismotionwaspreparedandfiledassoon
thereafteraspracticable.
Wherefore, defendant requests that the court conclude there to be a reasonable basis to
challengetheimpartialityofJudge____________,uponthefollowinggrounds:
1. Judge ____________ has personal knowledge of facts which may be material to the
case, which can be considered by the court as a basis for disqualification under Canon
3.C.1,CodeofJudicialConduct.
2.Judge____________actedasanattorneyorcounseltotheplaintiffinconnectionwith
his duties as an associate general counsel of the parent corporation. Although he did not
actascounselinconnectionwiththislitigation,asprovidedintheCanonsformandatory
recusal,theearlyrelationshipcanbeconsideredbythecourtasabasisfordisqualification
initsdiscretionunderCanon3.C.1,CodeofJudicialConduct.
3. Judge ____________ is a close personal friend of ____________[plaintiff CEO], who
will be a material witness in the case. Although not a relative, as provided in the Canons
formandatoryrecusal,theclosenessoftheirfriendshipcanbeconsideredbythecourtasa
basisfordisqualificationinitsdiscretionunderCanon3.C.1.,CodeofJudicialConduct.
Defendantrespectfullymovesfortheentryofanorderaccordingly.
Dated_______
40.Discoveryconsiderations
Therearetwoaspectsofdiscoverytobeconsideredinconnectionwithproceedingsforthe
disqualificationofajudge.First,thereistheaspectofincludingquestionspertinenttothepo-
tentialforbiasorprejudiceofthejudgewhoispresentlyassignedtothecaseingeneraldis-
coveryaddressedtotheotherpartiesandmaterialwitnessesinsuit.Second,thereistheaspect
of particularized discovery which might be indicated to develop the necessary showing in a
proceedingfordisqualification.
Adecisiononwhethertoincludequestionspertainingtothejudge'spotentialbiasingen-
eraldiscoverytootherpartiesandwitnessesisapragmaticdecisionwhichdependsuponsev-
eralfactors.Theprincipalfactorishowwellcounselknowstheassignedjudge,eitherperson-
allyorbyreputation,andcounsel'ssubjectiveassessmentofthejudge'spotentialforimparti-
ality. Additional considerations include the geographical size of the court's catchment area,
andthelikelihoodthatthejudgemighthavesomepersonalknowledgeorpersonalconnection
tothecase.Wherethecommunityislightlypopulatedandthejudgeahighlyvisiblemember
ofit,informalinquiryaroundtownmaybemorethansufficienttoaugmentcounsel'sownper-
sonalknowledgeofthejudgeandthejudge'shabits.Inlargerurbancenters,wherethejudge's
socialandextrajudicialconnectionsarenotobvious,itmaybeprudenttoensureindiscovery
thattheadverselitigantshavenoconnectionstotheassignedjudge.
In an appropriate case, the following interrogatories might be propounded to the adverse
parties.Theyareexampleswhichareintendedonlytoillustratethepoint.Actualinterrogator-
iesanddepositionquestionswouldvary,dependinguponcircumstancesofthecase,withany-
thingbutanegativeanswerrequiringfollowupinquiryasnecessarytodeveloptheissue.
Sample Interrogatories
Interrogatory No. _______: Is any member of the ____________[party] related to Judge
____________ or the judge's spouse? If so, identify the party, the relative and the degree
ofrelationship.
InterrogatoryNo._______:Hasanymemberofthe____________[party] beenaclientof
Judge ____________, or of the judge's former law firm ____________[name of firm], in
connectionwith(a)anyoftheissuesinthiscase,or(b)anyothermatter,duringthetime
whenthejudgewasinprivatepractice?Ifso,identifytheparty,thetimeframe,thegener-
alsubjectmatteroftheengagement,andnatureoftheattorneyclientrelationshipthatex-
isted.
Interrogatory No. _______: Does Judge ____________ or any member of the judge's im-
mediate family, directly or indirectly, individually or in any fiduciary capacity, hold any
financial interest in ____________[party] or in any venture associated with the
____________[party]?Ifso,explainthenatureofthefinancialinterest,thenameandca-
pacityoftheinvestor,theamountoftheinvestment,andtheextentoftheinterestheld.
InterrogatoryNo._______:DoesJudge____________oranymemberofhisfamilyhave
anyothertypeofdirectpersonalinterestinanypartytothisproceedingorintheoutcome
ofthislitigation?Ifso,pleaseexplainthenatureoftheinterest.
Interrogatory No. _______: Do you know of any personal bias or prejudice which Judge
____________ may have for or against any party to this litigation? If so, please explain
thenatureofthebiasorprejudice.
Interrogatory No. _______: Do you know of any circumstances that exist whereby Judge
____________ impartiality might reasonably be subject to question? If so, please explain
thecircumstances.
Inadditionto,orinlieuof,interrogatories,counselmayconsiderincludingquestionscov-
eringpotentialfamiliaritywiththejudgeindepositionsofpartiesandimportantwitnesses.
In most instances, this would require nothing more than an initial inquiry of whether the
witnessknowsthejudgeinanyconnection,withappropriatefollowupsasindicated.The
subjectisprobablyunnecessaryindepositionsofplainwitnesses,butcouldberevealingif
askedofparties,expertwitnesses,orwitnessesclosetothecenterofthecase.
41.Discoverydirectedtochallengedjudge
No reported case could be found where a judge was required to submit to discovery in
connectionwithamotionforhisorherdisqualification.Inonecasenoted,itappearsthat
thejudgevoluntarilysubmittedtoadepositionafterthematterwasremandedbyanappel-
latecourtforahearingbeforeadifferentjudgetoresolvesomeissuesoffact.[25]
The overwhelming authority appears to be that a sitting judge may not be questioned or
deposedonanysubjecttouchinguponthejudge'sdecision-makingprocess.Theonlygen-
erally recognized circumstance where a sitting judge may be deposed or questioned is
where particular testimony from the judge is necessary to complete or reconstruct the re-
cord, or establish procedural facts not in the record. However, even this exception has
been held specifically not to include any inquiry into circumstances in connection with
proceedingsforthejudge'sdisqualification.[26]
Ifcounselwishestotestthispremisebytryingtosubpoenaajudgetodeposition,counsel
shouldtreadverycarefully.ConsidertheplightofthedefendantinPeoplev.Ernest,[27]a
criminalcaseoutofIllinois.Ernestwasalawyerwhosuspectedthatafinalaccountingin
aprobatecasewasfraudulent.Hesubpoenaedtheprobatejudgetoadeposition,laterad-
mitting he had no real basis for doing so other than curiosity: a suspicion that the judge
might know something useful. The judge responded by holding the lawyer in contempt
andfininghimfiftydollars.Theappellatecourtaffirmed,althoughadissentingjusticedid
opinethatthemeresubpoenaingofajudgetoadepositionshouldbeinsufficienttoconsti-
tuteacriminalcontempt.
Inanothercase,enterprisingcounseldeterminedthatsincetheycouldnotdeposethejudge
assigned to the case, they would depose the judge's law clerks. In ruling on a motion to
quashthedepositionsubpoenas,thecourtheldthatsincethetargetjudgecouldnotbede-
posed,neithercouldthelawclerks.Thecourtobservedthatallowinginquiriesbylitigants
into the internal operations and communications of the court in the midst of litigation
would destroy the integrity of the legal system, and that permitting the deposition of law
clerks for the purpose of obtaining evidence to advance the disqualification of the clerk's
judgewouldservenoproperpurpose.[28]
Suffice it to conclude that in all but the most extraordinary of circumstances, there will
probablybenoopportunitytodeposethesittingjudgeontheissueofthejudge'srecusal.
Ifthejudgeparticipatesinthedevelopmentofthefacts,counselshouldexpectthatitwill
bebystatementoraffidavitwithoutopportunityforfollowupquestionsorcrossexamina-
tion.Ifthecaseforbiasorprejudiceistobemade,itmustbemadeinferentially,fromoth-
erwitnessesandfromcircumstantialandcollateralevidence.
42.Otherdiscovery
Thisdoesnotmeannodiscoveryshouldbecontemplatedondisqualificationissues.Coun-
sel will be required to supply evidence to back up allegations of prejudice. Rumors,
hearsayandunfoundedsuppositionswillnotsufficeasgroundsfordisqualification.Coun-
sel must investigate the rumors and speculations and develop a foundation of admissible
evidence.Afailuretoadequatelyinvestigatemayleadnotjusttoalossofthemotion,but
tosanctions.
CaseIllustration:
Defensecounselfiledamotiontodisqualifythejudge,allegingthatthejudgewasacloseper-
sonal friend of opposing counsel and opposing counsel's father. The judge held a hearing at
whichheexplainedatsomelengththathehadbeenafriendofopposingcounsel'sfatherwhen
hewasalive,butthefriendshipdidnotcarryovertoopposingcounsel.Infact,thejudgehad
recently ruled against opposing counsel in a proceeding involving the probate of his father's
estate.Thejudgereiteratedthattherewasnobasisforhisdisqualificationinthecase.Heob-
servedthatthemotionwasbaseduponrumorandunsubstantiatedhearsay.Thejudgeheldthat
itwasclearthatdefensecounselhaddonenoinvestigationnorconductedanydiscoverytode-
termineiftherewasanybasisfortheallegationsofbias.HeimposedRule11sanctionsupon
the counsel who presented the motion. The denial of motion to disqualify and the imposition
ofRule11sanctionsoncounselwereaffirmedonappeal.[29]
Motions to disqualify are generally decided upon the affidavits and other supporting ma-
terials, without taking live testimony. While the rules in all states and the federal statutes
require affidavits to support a motion for recusal, deposition testimony may be submitted
tothesameend.Depositionsareunnecessaryifcounselcanobtainanaffidavit,butifnot,
thensubpoenaingawitnesstoadepositionisanavailablealternative.
IV.ProofThatJudgeShouldBeDisqualified
A.ConversationsinaBar
[The sample proofs are premised upon a hearing before a different judge, other than the
challenged judge. The situations are purely hypothetical. In the first scenario, the moving
party has alleged that the sitting judge should be disqualified because of an alleged bias spe-
cifically against the defendant corporation. The case involves an action for damages arising
outofachemicalspill.Defensecounselhaslearnedthatthejudgemayhaveaparticularbias
against the defendant because he believes it pollutes the local river. The acts relied upon to
demonstratethejudge'sbiasareremarksmadebythejudgeinasocialconversation.]
43.Acquaintancewithchallengedjudge
Q.
Goodmorning,Mr.____________[name],pleaseintroduceyourselftothecourtbytelling
thejudgewhoyouare,whereyouarefromandwhatyoudo.
A.
My name is ____________. I live in ____________[city] and I am employed by
____________[brewery].
Q.
Whattoyoudoforyouremployer?
A.
I am a route salesman. I stock beer coolers and taps on a route through the southwestern
partofthestatefrom____________[town]to____________town].
Q.
DoyouknowJudge____________[thechallengedjudge]?
A.
Yessir.
Q.
Howdoyouknowhim?
A.
Myterritoryincludes____________[town],upbylake____________.Ihaveseenhimon
numerousoccasionswhenservicingmyaccountsthere.
Q.
Howoftendoyouserviceaccountsin____________[town]?
A.
Atleasteverythirdday.
Q.
Howmanyaccountsdoyouhaveupthere?
A.
Well, there's six taverns, three bars, the two convenience markets and the grocery store.
Plusthemotelcafe.
A.
Isthereanyparticularplacewhereyouusuallyseethejudge?
Q.
Yes,usuallyinataverncalledthe____________[name].Itjustoutsidetowntowardsthe
lake.
Q.
Howisitthatyouwouldbeatthattavern?
A.
Iusuallygettherelaterintheafternoon,around4or5o'clock.Itsmylaststopoftheday
whenIaminthatarea,andIusuallystayforawhileafterIhaveresuppliedthecoolers.They
haveprettygoodsandwichesthere,andIusuallyhaveahamburgerbeforeIheadbackhome.
SoIamtherequiteabit.
Q.
AndyouwouldseeJudge____________there?
A.
Yessir.
Q.
Howoftenwouldthatbe,toyourrecollection?
A.
During the summer, the judge is there almost every weekend. I think he has a place up a
the lake. I am there either Friday or Saturday of every week, and he is almost always there
every time in the summer. Sometimes he is there when I arrive, and if not, he almost always
comesinbeforeIleave.
Q.
Howabouttherestoftheyear?
A.
Maybeeveryothermonththerestoftheyear.Prettyregular.
Q.
Doeshedrinkatthebar?
A.
No,sir.Atleastnotbeer.AllIhaveeverseenhimdrinkisdietsodaandicetea.
Q.
Whatdoeshedoatthistavern,thatyouobserved?
A.
Hecomesintoplaycribbagewith____________[name],theowner.Sometimestheyplay
ginrummy,butusuallyitscribbage.
Q.
Doyouknowwhythejudgeplayscardswiththeownerofabarsooften?
A.
Well,Ithinkso.
Q.
Whyisthat?
A.
Itishisbrother.Atleast,that'showhewasintroducedtome.
Q.
Doesthejudgeknowyou,toyourknowledge?
A.
Yessir,Ithinkso.AtleastheisalwaysfriendlyandcallsmebynamewhenIseehim.
44.Theconversationinthebar(foundation)
Q.
Now, do you recall a time around ____________[date], when you were in the _______
tavern,andwherethejudgewasthereplayingcardswithhisbrother,andwhenthesubjectof
chemicalspillscameup?
A.
Yessir,Ido.
Q.
Okay,nowbeforewegettotheconversation,Iwanttotakecareofsomedetails.First,can
youpindownthedate?
A.
ItwouldhavebeenSaturday,the_______of_______[date].
Q.
Andwhydoyourememberthatbeingthedate?
A.
IrememberthattheconversationoccurredjustpriortotheFourthofJuly,andthatwasthe
FridayoftheweekendthatIwasuptherepriortotheholiday.
Q.
Andhowdidyoupinthatdown?
A.
Icheckedmylogbookandthedispatchrecordsatwork.
Q.
Whowaspresentinthebar,toyourrecollection?
A.
Thejudge,hisbrotherandmyself.Therewereafewotherpeopleinthebar,butonlythe
threeofusweretalkingtogether.
Q.
Whatweretheotherpatronsdoing?
A.
There was a couple sitting in a back booth. There were three or four guys playing pool,
andtherewasold____________[name]sittingattheotherendofthebar.Itwasprettyslow
thatafternoon.
Q.
Whattimeofdaywasit?
A.
About4:30intheafternoon.Thehappyhourcrowdhadn'tarrivedyet.
Q.
Wereanyoftheothersinvolvedinconversationwiththejudge.
A.
No,nobodyelsewaspayinganyattention.Justhisbrotherandme.
45.Theconversationinthebar(substance)
Q.
Now,howdidyougetinvolvedintheconversation?Pleasedescribehowthathappened.
A.
Well, I finished servicing the taps and stocking the coolers, and had put my hand truck
backonthetruck.Icamebackintothebartohaveasandwichandbeer.Isaidaroundofbeer
was on theI usually do thatand ____________[brother] started drawing beers for every-
body.Thejudgelaughedandaskediftheofferincludedadietsoda.Ilaughedback,andsaid
heck no, I couldn't make any money unless he started drinking my beer. By then,
____________[brother] had delivered beers to them that wanted some, and I asked if he
wouldmakemeahamburger.Whilehewasstartingthesandwich,thejudgeandIstruckupa
conversation.
Q.
Andwhatdidyoutalkabout?
A.
Justsmalltalkweather,fishingonthelake,howthebaseballteamwasdoingthatkind
ofstuff.
Q.
Whathappenednext?
A.
____________[brother] brought me my sandwich, and went back to the card game with
thejudge.Theystartedintalking.
Q.
Whatkindoftalkingweretheydoing?
A.
It was like an argumentlike they had been in the middle of an argument that got inter-
rupted,andtheywerepickingitupagainwheretheyleftoff.
Q.
Andwhatweretheytalkingabout?
A.
Theyweretalkingaboutpollution,companiesthatwereresponsibleforpollutingthelakes
andrivers.
Q.
Wasthisanargumentorjustadiscussion?
A.
No,Ithinkitwasanargument.
Q.
Whosaidwhat,asyourecall?
A.
____________,thejudge'sbrother,wassayingthatwehadtoletthesecompaniesgo,oth-
erwiseitwouldwrecktheeconomy.Thejudgewasdisagreeing,andsayingthatthecompan-
iesshouldbeshutdowniftheycouldnotcontrolthepollution.
Q.
Wasitaheatedargument?Weretheyshoutingorwavingtheirarms,oranythinglikethat?
A.
Oh,no.Itwasaseriousdiscussion,I'llsaythat.Buttheywerejusttalkingnormalvoices.
46.Theconversationinthebar(prejudicialremarks)
Q.
Wasanythingsaidbyeitherthejudgeorhisbrotheraboutmyclient,____________[name
ofdefendantcompany]?
A.
Yessir.
Q.
Whatwassaid,andtelluswhosaidwhat.
A.
Well, the brother said something about looking at the situation with
____________[defendantcompany],thatitwasoneofthebiggestemployersinthestateand
thatitwouldbeadisasteriftheyhadtoshutdown.
Q.
Whatdidthejudgesay,ifanything?
A.
Thejudgealmostexploded.Hesaidthattheywereoneofthebiggestpollutersinthearea,
that he thought it was almost criminal what this company was doing to the environment and
theriversandlakesofthestate.
Q.
Didhesayanythingaboutbeingajudge,orwhathewoulddoasajudgeanythingsaid
atallwherebeingajudgewasmentioned,ifyourecall?
A.
Yes,hedid.
Q.
Whatdidheday,please?
A.
That if he ever got the chance in his court he would close them down in a New York
minute.
Q.
Tobeclear,whowashereferringtowhenhesaid"them"?
A.
Oh, to ____________[defendant company]he wasn't talking about any other company
then.
Q.
Werethosehisexactwords?
A.
Yes, I remember because I had never heard of a New York minute. I remember that ex-
actlyhewouldclosethemdowninaNewYorkminute.Istilldon'tknowwhatthatmeans.I
guessitmeanssomethinglikehewouldn'tthinktwice.Atleastthat'showItakeit.
Q.
Wereyoujusteavesdropping,orwereyouparticipating?
A.
Oh,Iwasparticipating.Youbet.
Q.
Whoseside?
A.
Iagreedwith____________,thejudge'sbrother.AndIsaidso.
Q.
Whathappened?
A.
Well, the judge said that I was too short sighted, that I couldn't see past the end of my
nose,andthatiswhatwaswrongwithsocietyeverybodywasoutforthebuck,andnobody
caredwhatwasgoingtohappenfiftytoahundredyearsdowntheroad.
Q.
Didhesayanythingtoyouabout____________,thedefendant?
A.
Yes, he said that ____________[defendant] was a good example. That they were motiv-
atedbycorporategreedandnothingmore,andthattheywereirresponsible.
Q.
Anythingelse?
A.
Morealongthesamelines.
Q.
Howlongdidthisgoon?
A.
Oh,notlong.Maybetenminutes.
Q.
Mr.____________[witness],inyouropinion,wasthejudgespeakingofhisownpersonal
convictions,orwashejustengaginghisbrotherandyouinadebate?YouunderstandwhatI
mean?
A.
Sure.You'reaskingifthejudgereallymeantwhathesaid,orwasitjustbartalk,right?
Q.
Yes,basically,ifyoucouldtell.
A.
Oh,thejudgereallymeantit.Hewasnotjustegginghisbrotherormeon,givingusanar-
gumentforthesakeofanargument.Fromwhathesaid,andthewaythathesaidit,youcould
tellthathewasreallytalkingaboutwhathefelt.
Q.
Howdidtheargumentend,ifyourecall?
A.
Thebrotherfinallysaidthattheyhadbeatthesubjecttodeath,andthatitwastimetotalk
aboutsomethingelse.Thejudgelaughed,andsaidok,letschangethesubject.
Q.
Whatdidtheconversationturnto,ifyourecall?
A.
Oh, back to some personal stuff about their families. A family wedding was coming up,
andtheystartedtalkingaboutthat.
Q.
Whatdidyoudo?
A.
Iwasfinishedwithmysandwich,soIsettledupwith____________[brother],gotmypa-
perworksignedandleft.
Q.
To your recollection, have you heard the judge talk about ____________[defendant] or
aboutthesubjectofpollutionorchemicalspillsintoriversorlakesonanyotheroccasion?
A.
Nosir.NotthatIrecall.
Q.
Thankyou,Mr.____________[witness].Oh,onelastarea.Howdidyouhappentotellme
aboutthis?
A.
My sister is a legal secretary in your office. I told her about the argument I had with the
judge,andIunderstandshetoldyou,Youcalledmeonthetelephone,anditwentfromthere.
Q.
Thankyou,nothingfurther.
B.TheSeminar
[The second hypothetical scenario taken from the case of In re School Asbestos Litiga-
tion,[30]whereafederaljudgewasorderedtorecusehimselfuponashowingthathehadat-
tended a seminar sponsored by an industry group created by defendants at which the defend-
ants' expert witnesses were the seminar presenters. In this scenario, the circumstance is
premised upon a major state environmental action against a group of corporate defendants.
Similarlitigationispendinginotherstates.Plaintiffs'counselhavelearnedthatthejudgeat-
tendedaseminarsponsoredsurreptitiouslybyanindustrylobbyingassociationincooperation
with a large university. The sample proof consists of the examination of a representative of
thelobbyingassociation.]
47.Background
Q.
Goodafternoon,Ms.____________.Introduceyourselftothecourt,please.Tellthejudge
whoyouare,whereyouarefromandwhatyoudo.
A.
Yes, my name is ____________, and I am from ____________[city] and I work for
____________[association].
Q.
Whatisthe____________[association]?
A.
Itisanindustryeducationgroup,associatedwiththe____________[industry].
Q.
Whatistheprincipleactivityof____________[association],please?
A.
Wedisseminateinformationaboutthe____________industry
Q.
Whatdoyoumeanbydisseminateinformation?Whatkindofinformationandwhodoyou
disseminateitto?
A.
Wedistributeinformationofallkindsandinallmediaaboutourindustry,andtoanyone
whomightbeinterested.
Counsel:
ThismaytakealldayifIdoitthisway.YourHonor,mayIhavepermissiontolead?
Comment:
Therulesofevidenceofmoststatesandthefederalcourtspermitcounseltoaskleadingques-
tionsofanadverseparty,orofawitnessidentifiedwithanadverseparty.[31]Thecourtmay
requireadditionalfoundation,iftheconnectionwithanadversepartyisnotobvious.
Court:
Youmay.
Q.
Letmeestablishsomefoundationhere.Is____________[defendant]amemberofyouras-
sociation?
A.
Yes,itis.
Q.
Doesitpayduesandassessments?
A.
Yes,itdoes.
Q.
Does a representative of ____________[defendant] sit on the association board of direct-
ors
A.
Yes,Mr.____________isontheboardfrom____________[defendant].
Counsel:
Yourhonor,mayIleadthewitness?
Court:
Youmay.
Q.
Ms.____________,the____________[association]isalobbyinggroup,isn'tthatcorrect?
A.
Well,oneofourprincipleactivitiesaretoassiststatelegislaturesandcongressinlegislat-
ivemattersatboththenationalandstatelevels.That'strue.
Q.
Isn't it accurate to say that this is virtually all you do? Lobby state legislatures and con-
gress?
A.
Wedohaveothereducationalactivities.
Q.
Butover90%ofyoureffortisdevotedtolobbyingeffortswithstatelegislaturesandcon-
gressisthatafairstatement?
A.
Iamnotsure.
Q.
Lookatthisdocument,please.Thebailiffishandingittoyou.Doyourecognizethatdoc-
ument?
A.
Yes.
Q.
Thatistheannualreportofyourorganization,sentouttoallmembers.Isn'tthatcorrect?
A.
Yes,thatiswhatitis.
Q.
Isitatruthfuldocument?Thatis,arethestatementsmadeaboutyourorganizationtruein
thatdocument?
A.
Yes,Ibelieveso.
Q.
Infact,youhelpedwritethatreport,didn'tyou?
A.
Yes,partsofit.
Q.
Readto yourself pleasewhat it says on the inside fold. The boldface box. Tell me
whenyouareready.
A.
Ihavereadit.
Q.
Does that help refresh your recollection about how much time your organization devotes
tolobbyingactivities?
A.
Yes,Isupposeso.
Q.
Isitfairtosaythat90%ofyourorganization'sworkisdevotedtolobbyingactivitieswith
eitherstatelegislaturesorcongress?
A.
Yes,Isupposeso.
Comment:
The document was used to refresh the witnesses recollection, but will not be introduced into
evidence.Somecourtsmightrequirethatthedocumentbemarkedforidentification,somedo
not. It should be shown to opposing counsel. The predicate for use of a document to refresh
wasthewitness'sreplythatshewasnotsureaboutananswer.Thestructureofthequestionsis
important.Aftersheacknowledgedthatshehadreadthedocumentandthatitrefreshedherre-
collection,counseldidnotaskhertoreadfromthedocument.Rather,heaskedhertotestify
from her memory, now that her memory had been refreshed. Unless counsel intends to offer
the document itself into evidencewhich would require considerably more founda-
tioncounselshouldnotaskthewitnesswhatthedocumentsays.
48.Arrangingtestimonybyexpertwitnesses
Q.
Doyoutestifyatlegislativehearings?
A.
No,Idonotpersonallyoffertestimony.
Q.
Doindividualsfromyourorganizationoffertestimonyatcongressionalorlegislativehear-
ings?
A.
No,ourorganizationitselfdoesnothavepeopletotestify,no.
Q.
Doyouarrangeforthetestimonybyothers?
A.
Yes,wedoarrangefortestimonybyotherseitherbyappropriateindividualswithknow-
ledgefromwithintheindustryorbyappropriateexpertsfromwithout.
Q.
Isthatwhatyoudofortheassociation?Makethesekindsofarrangements?
A.
Yes,partofmyworkisjustthat.
Q.
Whatisyourtitle?
A.
Iamaneducationdirectorwiththemajorprofilesubgroup.
Q.
Whatisthemajorprofilesubgroup?
A.
Thatisthegroupwithintheassociationdealingwithhighprofileissues.
Q.
Asaneducationdirector,whatdoyoubesidesarrangeforwitnessestocongressionalhear-
ings?
A.
That is a small part of it. Mostly, we work with legislators and congressmen to get them
informationusuallytechnicalinformationaboutissuesraisedinpendinglegislation.
Q.
Areyouinvolveinlitigationissues?
A.
Yes.ThatisasmallpartofwhatIdo,butyes,itispartofmyactivities.
Q.
Whatdoesthatentail?
A.
Wearearesourcefortheindustryinthematteroftechnicalinformationonissuesinlitiga-
tion.
Q.
In simple terms, you will arrange for and provide expert witnesses to testify for industry
defendantsinlawsuitslikethisone?
A.
Well,wedon'tprovidethemtheydon'tworkforus.Wehaveanextensivedatabankof
individuals from all over the country who have specific expertise on technical subjects. We
willresearchourdatabanksforthenamesofappropriateindividualsandthensuggestorsup-
plythosenamestothelawyersinvolved.
Q.
Youwillarrangeforandprovideexpertwitnessestotestifyforindustrydefendantsinlaw-
suitslikethisone?
A.
Well,ifthecompaniesaskustodoanythingfurther,wetrytoassistinanywaythatwould
behelpful.
Q.
Youwillarrangeforandprovideexpertwitnessestotestifyforindustrydefendantsinlaw-
suitslikethisone?
A.
Well,yes.Ithoughtthat'swhatIsaid.
Q.
Thankyou.Doyouchargeforthis?
A.
No.
Q.
Thereisnocompensationpaidtoyourassociation?
A.
Well, for our major industry members, there is no separate charge. The major industry
members pay to support the association, and this service is part of what is included in major
membership.
Q.
Howaboutothers?
A.
Ihaveneverbeeninvolvedinanyothersituationsotherthanforourmajorindustrymem-
bers.
Q.
Butwouldtherebeafeeorotherchargeforothermembers?
A.
Ifwediditatall,Isupposetherewouldbeafee.
Q.
Doyouguaranteethetestimonyofthewitnessesinanyway?
A.
No.
Q.
No?Isn'tittruethatyouverifythecredentialsofallofthenamesinthedatabank,soyou
canverifythattheindividualdoes,infact,possessthecredentialsheorsheclaims.
A.
Oh,yes,wedothat.
Q.
To that extent, don't you guarantee the testimony. You assure someone that an individual
youdesignatefromyourdatabankisabonafideexpertinthefield?
A.
Well,yes.Butwedonotguaranteewhattheexpertwillsayorconcludeinanygivencase.
Absolutelynot.
Q.
But you do code these names, or indicate somehow those that you think are favorable to
industrypositions,don'tyou?
A.
Yes,wedo.
Q.
Alright,tellthecourthowandwhyyoudothat.
A.
Mostoftheindividualsareinacademicpositions,andallhavepublishedoneormoreart-
iclesintechnicaljournals.Thatishowyougettoberecognizedasanexpertbygettingyour
technical articles published. We examine all of the articles of every one on our lists, plus all
seminar topics, plus any other public indicia of the individual's positions with respect to the
industryissueswearefollowing.Allofthisinformationiskeptwiththedataonthatindividu-
al,andisavailablewhenwearesurveyingforanexpertonaparticularissue.
Q.
Youmaynotbeabletoguaranteewhichwayaparticularexpertisgoingtogoonapartic-
ularissue,butyoucanpredicthisgeneralapproach,can'tyou?
A.
Frankly,wehopeso.Thatisourjob.
Q.
Righttopresenttheindustryinthebestlightpossible.Correct?
A.
Tomakesuretheindustrystoryistoldfairlyandcompletely.Tomakesureitspositionis
givenafairhearing.
Q.
Whichmeanstopresenttheindustryinthebestlightpossible.Correct?
A.
Toprovidetechnicallyaccurateassistancetoensuretheindustryisfairlytreated,correct.
Q.
Onemoretime:topresenttheindustryinthebestlightpossible.Correct?
A.
Yes.
49.Selectionofexpertsinpendingcase
Q.
WereyoucontactedbyMr.____________'s[defensecounsel]firminconnectionwiththis
case?
A.
No.
Q.
Wereyouinvolvedintheselectionofexpertsforthiscase?
A.
Yes.
Q.
Howdidyobecomeinvolved?
A.
Wewerecontactedbythegeneralcounselof____________[party].
Q.
Whatdidheaskyoudoto,ifanything?
A.
Heaskedustoresearchthedatabankandcomeupwithalistofexpertsoncertainissues.
Hewantedsomenamesandresumestoreview.
Q.
Anddidyoudoso?
A.
Yes,weprovidedalistofabouttenindividuals,togetherwiththeircredentials.
Q.
Whathappenednext?
A.
Mr. ____________[general counsel] arranged a meeting between me and the defense
counselforfourofthesecases.
Q.
Did you understand these lawyers to be the defense steering committee for all state court
litigationagainstthecompaniesinthe____________industry?
A.
Yes,that'swhotheywere.
Q.
Andyouknewthatwhenthemeetingwasarranged?
A.
Yes.
Q.
Soyoudidmeetwiththelawyers?
A.
Yes,butitwasarrangedthroughanindustrymemberthelawyersdidnotcontactus.
Q.
Isthatanimportantdistinction?
A.
Wedonotrespondtorequestsforassistanceinexpertwitnessarrangementsfromlawyers
orlawfirms.Weonlyworkwithanindustrymemberonthistypeofmatter.
Q.
OK,soafteranindustrymemberhadsetitup,thenyoumetwiththelawyers?
A.
That'scorrect.
Q.
Whatwasthepurposeofthemeeting?
A.
To go over the credentials of the individuals and select a cadre of expert witnesses to be
used in connection with a number of pending cases on issues involving companies in the
____________industry.
Q.
Soitwasn'tjustinconnectionwiththiscase?
A.
Oh no. There are at least ____________ cases pending in ____________ states, plus an
additional____________casesinfederalcourt,allinvolvingsomefacetoftheseissues.
Q.
Howmanylawyerswereinvolved,alltold?
A.
Quitafew.Atleast_______[number].
Q.
Whatcameoutofthismeeting?
A.
Alistof____________individualswasselectedastheproposedslateofexpertwitnesses,
whoweretoberetainedtotestifyinallofthependingcases.Wewereaskedtomakeprelim-
inarycontactwiththeseexperts,andpreviewtheirqualificationsandavailabilitytotestifyin
thesecases.
Q.
By"we"youmeanyouandyourassociation?
A.
Yes,that'sright.
Q.
Butyouhadalreadyscreenedtheseexperts,atleastpreliminarily,hadn'tyou?
A.
Yes,tosomeextent.
Q.
Andyoualreadyknewthatallofthemwerefavorablydisposedtowardstheindustryposi-
tionontheseissues?
A.
We knew from their published works that they wereor at least, that nothing had been
publishedofaderogatorynaturetowardstheindustrybyanyofthem.
Q.
Sowhatkindofscreeningwereyoutodoafterthismeeting?
A.
We were to interview the individuals selected to see if they were interested and available
tohelpoutintheselawsuits.
Q.
Andyouweretotrytodetermineifanyofthemhadanyspecificbiasorprejudicesonany
of the particular issues in the lawsuit, weren't you? And to determine if any of them had
alreadystatedpositionsontheseissuesthatyoumightnotknowabout?
A.
Idon'trecallthat.
Q.
Oh?Pleasetakealookatthisletter.Thebailiffishandingittoyou.Doyourecognizethat
letter?
A.
Ido.
Q.
Tellthecourtwhatitis.
A.
Itisaletterfrom____________[counsel]tome.
Q.
Andyourecallreceivingthatletter?
A.
Yes,Ido.
Q.
Andinthesecondparagraphofthatletter,didn'tMr.____________[counsel]askyou,and
I'llreadit,"tomakesurethatinyourinterviewsoftheexperts,youtrytodetermineifanyof
themhadanyspecificbiasorprejudicesonanyoftheparticularissuesinthelawsuit,andto
determineifanyofthemhadalreadystatedpositionsontheseissuesthatwemightnotknow
about."Isn'tthatwhatMr.____________askedyoutodo?
Comment:
This is not hearsay, and once the witness acknowledges it, the letter itself need not be intro-
duced into evidence. The sentence from the letter is being offered for the fact that the state-
mentthelawyer'srequesttothewitnesswasmadetothewitness,andnotfortheabstract
truthofitscontent.
A.
Yes,hedidaskmetodothatintheletter.
Q.
Andyoudidso,isn'tthatcorrect?
A.
Idon'trecall
Q.
Ah,Ms.____________,comeon.Lookatthisdocument,please.Wehavemarkedthisas
exhibit_______inthisproceedingforidentification.Yourecognizethatdocumentdon'tyou?
A.
Well,yes.
Q.
Tellthecourt.
A.
It'saletterfrommetoMr.____________[defensecounsel].
Q.
Does this refresh your recollection as to whether you complied with Mr. ____________'s
[counsel]requesttofurtherscreentheexpertpanel?
A.
Whatdoyoumean?
Q.
Isn'tittruethatyouinterviewedeverynameonthatlistofproposedexperts,anddeterm-
ined that every one of them were predisposed in a favorable manner to the positions of the
____________industrywithrespecttoalloftheissueswhichwereimportanttotheindustry
inthependinglitigation?Isn'tthataccurate?
A.
Well,that'swhatitsays.
Q.
Youmeanthat'swhattheletteryouareholdingsays?
A.
Yes.
Q.
Infact,itswordforword,isn'tit?
A.
Yes.
Q.
Andyouwrotethewords,correct?
A.
Well,yes.
Q.
Andtheyareaccuratewords,aren'ttheyMs.____________?
A.
Umyes,that'scorrect.
Q.
Andallofthiswasinplaceby____________[date],wasn'tit?
A.
IamnotsureIunderstand?
Q.
You had interviewed all of these experts, satisfied yourself that they all were favorably
disposedtowardsthe____________industryandhadnottakenanypositioninanywritingor
publishedworkthatwouldembarrassyouonanyofthetechnicalissuesinvolvedinthecase,
andyouhadsoadvisedallthelawyersinvolved.Isthataccurate?
A.
Well,basically.
Q.
Andthislistofexpertshadbeenretained,hadtheynot,tobeexpertwitnessesonbehalfof
thedefendantsinthependinglitigation.Isn'tthattrue?
A.
Yes,that'swhatIunderstood.
Q.
Yes,youwereawareofthat,weren'tyou?
A.
Yes,Iknewthat.
Q.
In fact, look at this document. That's a copy of the expert witness disclosure list filed by
thedefendantinthiscase.Youhaveseenthatdocumentbefore,haven'tyou?
A.
Yes.
Q.
Youwereawarewhendefensecounselpreparedthatlist,weren'tyou?Hesentyouacopy
tomakesurethatallthenamesandaddresseswerecorrect?Andthatthelistwascomplete?
A.
Yes,that'strue.
Q.
And you knew that this list was going to be filed with the court back in
____________[month]?
A.
Yes,Iknewthelistwasgoingtobefiled.
Q.
Backin_______[date]of_______[year]?
A.
Yes.
50.Arrangingtheseminar
Q.
Thankyou.Nowturningtoanothermatter.Whois____________[name]please?
A.
Ohmy,whereisthisleading?
Q.
Nevermind.DoyouknowMr.____________?
A.
Yes.Heisthechancellorof____________university.
Q.
Andafriendofyours?
A.
Anacquaintance.
Q.
Did you contact ____________ about the university participating in a seminar on pollu-
tion,andspecificallyinvolvingissuesof____________and____________?
A.
Ididn't,no.
Q.
Butsomeoneinthelobbyorganizationdid?
A.
Yes,Mr.____________,theexecutivedirector.
Q.
Andyougotinvolvedshortlyaftertheinitialcontact?
A.
Yes.
Q.
Tellthecourt.
A.
Tellhimwhat?
Q.
Whyyouandtheexecutivedirectorwerecontactingtheuniversitychancellor.
A.
We wanted to know if the university would host a seminar on these pollution issues. The
universitywouldhosttheeventandprovidethefacilities.Wewouldfunditanddothelogist-
icalworkofsettingitup.
Q.
Did____________[chancellor]agree?
A.
Yes,hedid.
Q.
Andwastheseminarheld?
A.
Yes.
Q.
When?
A.
_______[date].
Q.
That was after the slate of experts had been retained by the parties involved in the litiga-
tion,correct?
A.
Yes.
Q.
Wasitbeforeoraftertheslatehadbeendisclosedtothecourtsandopposingcounsel?
A.
Theseminar?Itwasbeforethedisclosuredateinmostofthecases,Ibelieve.
Q.
How about the disclosure date in this case, which was _______[date]? The seminar was
beforethatdate,correct?
A.
Yes.
Q.
Sotheexpertwitnesseswhohadbeenselectedtotestifyinthiscasehadnotyetbeendis-
closedtothecourtoropposingcounselyouwereawareofthat,weren'tyou?
A.
Yes.
Q.
Whowastheseminartobeaimedat?Whatwasthetargetaudience?
A.
Governmentofficials,municipalofficers,civicleaders,thelegalprofession.Anyonewith
aninterestintechnicalinformationabouttheseissues.
51.Involvementoftrialjudge
Q.
Anyoneelse?
A.
Iamnotsurewhatyoumean.
Q.
Trialjudges?
A.
Well,yes.
Q.
You specifically caused a special invitation to this seminar to be directed to a list of the
trial judges in the several states where cases were pending involving the ____________ in-
dustry,isn'tthatcorrect?
A.
Well,yes.
Q.
Andthatlistoftrialjudgesconsistedofthetrialjudgeswhowerepresidingovercasesin-
volvingthisdefendantandothersintheindustry,whichwerethenpendinginstateandfederal
courtsthroughoutthecountry,right?
A.
Yes,that'scorrect.
Q.
Andyoucausedtheseinvitationstobesentouttoinvitethesejudgestotheseminarwith
allexpensespaid,correct?
A.
Yes.
Q.
And this included Judge ____________[challenged judge], the judge presiding in this
case?
A.
Yes.
Q.
ThisisacopyoftheinvitationyousenttoJudge____________,isn'tit?Bailiffishanding
youthedocument,itisalreadyanexhibit,exhibit_______.
A.
Yes,that'sit.
Q.
It is on stationery indicating that it is from the ____________ University. Did the uni-
versitysendthatinvitationout?
A.
Well,theysponsoredtheeventandauthorizedthepromotionofit.
Q.
Yes,butdidtheUniversityactuallydothemailing?
A.
No,wedid.
Q.
Itwasmailedoutfromtheofficesofyourorganization,correct?
A.
Yes,that'sright.
Q.
Whosignedtheletters?
A.
Dr.____________fromtheuniversitysignedablankforus,wemadeaslugforthesigna-
turemachinefromthatblankandthenusedthattosigntheindividualletters.
Q.
Didheknowwhothelettersweregoingto?
A.
Notspecifically.Hejustknewthattheletterswerebeingsentinconnectionwithapromo-
tionoftheseminar.
52.Attempttoprejudicejudge
Q.
Thelobbyorganizationpaidalloftheexpensesofthisseminar,didn'tit?
A.
Yes.
Q.
Includingallexpensesofthejudge'swhowereinvitedtoattend?
A.
Yes.
Q.
Didthefundingcomefromthegeneralrevenuesofthelobbyorganization?
A.
No,itwasaspecialassessmenttothememberswhowereinvolvedinthelitigation.
Q.
So this funding was particularly derived from the defendants in these lawsuits? Is that
whatyouaresaying?
A.
Thatisaccurate.
Q.
Is there anywhere on the letter of invitation that was sent to Judge ____________, or to
any of the judges for that matter, where it says that the funding is coming from the lobbying
organization?
A.
Itdoesn'tsay.
Q.
Is there anywhere on the letter of invitation where it discloses that the funding was by
meansofspecialassessmenttodefendantsinlawsuitspendingbeforethesejudges?
A.
Itdoesn'tsay.
Q.
Is there anywhere in the promotional material where it is disclosed that the
____________[association]isasponsorofthisseminar?
A.
Itisnot.
Q.
TheonlyreferencetoasponsoristotheUniversityof____________,isn'tthatcorrect?
A.
That'strue.
Q.
In fact, when the university chancellor wanted to give your organization credit, you de-
clined.Youadvisedhimthatyoudidn'twantyourassociation'snametobeconnectedwiththe
seminaratall.Isn'tthatwhatyoutoldhim?
A.
Well
Q.
Heisgoingtotestifynext,ifnecessary,andwehaveyourletters.
A.
Yes,that'swhatIsaid.That'swhatIwasinstructedtodo,insettinguptheseminar.There
wasnottobeanyvisibleconnectionbetweentheseminarandthe____________industry.
Q.
And that's how it came off, didn't it? There was nothing out there to connect the seminar
withthe____________industry?
A.
Yes,Ibelieveso.
Q.
Whoweretheseminarspeakers?
A.
[noanswer]
Q.
Weren't the seminar speakers the experts you had retained on behalf of the defendants in
thestateandfederalcourtlawsuits?
A.
Yes.
Q.
Allofthem?All____________[number]ofthem?
A.
Yes.
Q.
Eachwasgivenasegmentoftheprogramtospeakonhisorherareaofclaimedexpertise?
A.
Yes.
Q.
Andyoupaidtheirexpensestheexperts?
A.
Yes.
Q.
Togetherwithanhonorariumforspeaking?
A.
Yes.
Q.
Howmuchweretheseexpertspaidforspeaking?
A.
Itrangedfrom____________to____________.
Q.
Isthatanormalhonorariumforauniversitysponsoredseminar?
A.
No,Idon'tbelieveso.
Q.
Itisconsiderablyhigher,isn'tit?
A.
Yes,asIunderstand.
Q.
Didanyonespeakotherthantheselitigationexpertswhohadbeenretainedtotestifyinthe
trialsbeforethesevariousjudges?Anyoneelsespeakatthisseminar?
A.
No.
Q.
Did you keep specific records of whether or not the judges who attended the seminar at-
tendedeachofthepresentationsanddiscussiongroups?
A.
Yes,wehaveattendancerecords.
Q.
I mean more than just general attendance records. I mean specific notations, by judge by
name,onwhethertheywereattendingeachofthesessions,madebyyouorsomeoneonyour
staff.
A.
Yes,wemadesuchrecords.
Q.
Andthereasonwhyyouhavetheserecordsonthejudgesisthatthecompaniesthatputup
the money for this seminar wanted to know specifically if these trial judges who they were
paying to attend the seminar sat through the speeches and discussion groups from the litiga-
tionexpertsthattheyhadhiredtotestifyinthevarioustrials,isn'tthattrue?
A.
Well,Idon'tknow
OpposingCounsel:
Well,yourHonor,Iobject
Counsel:
Alright,letmewithdrawthatquestion,andgetatitthisway:
Q.
Youweredirectedtokeeptheserecordsonthejudges,weren'tyou?
A.
Yes.
Q.
Bytheexecutivedirector,yourboss?
A.
Yes.
Q.
Whogothisinstructions,toyourknowledge,fromthecompaniesinvolved?
A.
Yes.
Q.
Andyoudidn'tkeepthiskindofrecordonanyoneelsewhoattendedtheseminar,didyou?
A.
Well,noitwasjustonthejudges
Q.
DidJudge____________attendthisseminar?
A.
Yessir.
Q.
Andyouhavearecordofthat,don'tyou?
A.
Yes,wedo.
Q.
Andheattendedallofthepresentationsandallofthediscussiongroups,didn'the?
A.
Yes,hedid.
Q.
Andyouhavearecordofthat,don'tyou?
A.
Wedo.
Q.
And you were required to turn all of this over to me as part of the discovery in this case,
weren'tyou?
A.
Yessir.
C.AppearanceofAnimosity
[The next scenario presents a witness on the subject of appearance of animosity towards
counsel.Theissueisthechallengedjudge'sapparentdislikeofoneofthelawyersinthecase.
Inthehypothetical,itisthelawyerwhoisdoingtheexaminationthatthejudgeappearstodis-
like.Theobjectofthisexaminationistoestablishtheexistenceoftheanimosityandestablish
thatitissevereenoughtoimpacttheclient'sinterest.Thewitnessisafellowlawyer.]
53.Background
Q.
Goodafternoon,Mr.____________.Wouldyouintroduceyourself,please.Tellthecourt
whoyouare,whereyouliveandwhatyoudo.
A.
Sure.Mynameis____________,Iliveherein____________[city],andIamalawyer.
Q.
Howlonghaveyoubeenalawyer?
A.
_______years.
Q.
Whenandwheredidyougotolawschool?
A.
AttheUniversityof____________,Igraduatedin_______[year].
Q.
Didyoupassthebarandbeginpracticingthatyear?
A.
Idid.
Q.
Haveyoubeenpracticingeversince?
A.
Yes,Ihave.
Q.
Herein____________[city]?
A.
Yes.
54.Familiaritywithtargetlawyer
Q.
Areyouconnectedwithmyfirm,____________[name],inanyway?
A.
No.Iamapartnerinthefirmof____________[name].
Q.
Doyouknowme?
A.
Ido.
Q.
Howwouldyoucharacterizeouracquaintance?
A.
Iwouldsaythatwearepersonalfriendsandprofessionalcolleagues.Wehaveassociated
togetheronseveralcases,wehavebeenopposedtooneanotheronseveralcases,webelongto
several professional organizations, and we have worked on several bar association commit-
tees.Thatsortofthing.
Q.
Yourpracticeisprimarilyadefensepractice,correct?Andmineisessentiallyaplaintiffs'
practice?
A.
Yes,that'strue.
Q.
Soweareusuallyonoppositesidesinthecasesweworkon?
A.
Alsotrue.
Q.
Arewesocialfriends?
A.
Yes.
Q.
HaveIbeentoyourhome,andhaveyoubeentomine?
A.
Onfrequentoccasions.
Q.
In fact, it is because we are personal friends that you agreed to testify today, is that cor-
rect?
A.
That'strue.
55.Familiaritywithtargetjudge
Q.
DoyouknowJudge____________?
A.
Ofcourse.
Q.
Andyouhaveappearedbeforehimonmanyoccasions?
A.
Ihave.
Q.
Have you been involved in cases before Judge ____________ in which I was also in-
volved?
A.
Yes,manytimes.
Q.
Howmanytimes,toyourrecollection?
A.
Icanrecallatleastsixcasesinthelastfiveyears.
Q.
DoyouhaveanobservationaboutJudge____________'sattitudetowardslawyersingen-
eral?
A.
Yes,Ido.
Q.
Whatisthatobservation?
A.
Judge____________isusuallyexceedinglycordialtowardsalllawyers.Heisunfailingly
courteous,bothontherecordandoff.
56.Appearanceofanimositytowardcounsel
Q.
DoyouhaveanobservationaboutJudge____________'sattitudetowardsme?
A.
Yes.
Q.
Andwhatisthat?
A.
InthelasttwocasesyouhavebeeninvolvedinthatIamawareof,hehasappearedtome
tobeuncharacteristicallyshortandilltemperedtowardsyou.Hewascordialtowardsothersin
thecases,buthasbeendownrightnastytoyou.
Q.
Do you have an observation as to whether his attitude has changed towards me in recent
times?
A.
Oh yes, quite obviously. Prior to the last two cases, and in all of the other cases before,
Judge____________actedtowardsyouasheactstowardsallcounsel.Cordialandcourteous.
Q.
Whendidthisattitudechange,ifyouknow?
A.
I think I know, because I think I was there. It was during the case of ____________ v.
____________[names], in a chambers conference on some discovery issues. The judge be-
came convinced that you had misled him in an earlier position, and he became quite angry
withyou.
Q.
Doyourememberwhathesaid?
A.
Yes,heaccusedyouoftryingtomisleadhim,andsaidthathewouldnotstandforthatin
hiscourtandthathewasgoingtoseethatyouneverhadtheopportunitytodoitagain.
Q.
Wasthisontherecord?
A.
No,thiswasinchambers.
Q.
Whathappenedinthatcase?
A.
Itwasprettysevere.Thejudgeruledagainstyouonthediscoveryissue.Heorderedevid-
encesuppressed,andconcludedthatwithouttheevidence,yourcasewouldfail.Hedismissed
thecaseandimposedcostsandattorneyfeesonyouandyourclient.Youtookanappealand
theappellatecourtreversed.
Q.
Whathappenedthen?
A.
ThecasecamebackbeforeJudge____________fortrial.
Q.
HowdidJudge____________reacttothis?
A.
Hewasclearlynothappy.Hecontinuedtoruleagainstyouateveryturn.
Q.
Howmanymotionsorothermatterswereinvolved?
A.
Halfadozen,maybe.Iamnotsure
Q.
HowdidIdo?
A.
Lostthemall,asIrecall.Ormostofthem,certainly.
Q.
Canyougivethecourtheresomeexamples?
A.
Well,Irecallamotionyoufiledamotiontocontinueahearingonamotion.Weallby
thatImeantheotherdefendantsandIagreedtoit,andyousoadvisedthejudge.However,
the judge denied the motion and required the hearing to go forward. You showed up and ex-
plainedthatthetranscriptofthedepositionwhichwasrequiredfortheshowingwasnotavail-
ableyet,whichwasthereasonyouhadmovedforthecontinuance.Thejudgedeniedanyfur-
thercontinuance,deniedyourmotion,andimposedRule11sanctionsonyou.
Q.
Wasthereatranscriptofthejudge'sdenialofmymotionforacontinuance?
A.
No,therewasn'tahearingonthat.Thejudge'sclerkcalledus,asIrecall,andtoldusthe
judgehaddeniedthemotionandthatthehearingwouldgoforward.
Q.
Wasthereatranscriptofthemotionhearing?
A.
Yes,itwasreported.
Q.
Look at exhibit _______, please. It's at the desk there. Is that a copy of the transcript of
thathearing?
A.
[looking]Yesitis.
Q.
Iaskedyoutoreadthisoverbeforeyourtestimonytoday,correct?
A.
Yes.
Q.
Doesthetranscriptaccuratelyreflectwhatwasgoingonatthathearing?
A.
Well,thewordsarerecordedaccurately,asfarasIcanrecall.Butthetranscriptdoesnot
reflectthetoneoratmosphereofthathearing.
Q.
Canyougivethecourthereapictureofthattoneorattitude,please?
A.
There seemed to be animosity in the air. You could almost feel it as soon as Judge
____________ took the bench. It doesn't show up in the transcript, but there was an edge to
thejudge'svoiceeverytimeheaddressedyou.
Q.
Areyousayingitwasdirectedtowardsmeandnotothers?
A.
Ohyes,thatwasclear.Thejudgewasverycordialtotherestofus.Youwereclearlythe
targetofhisanimosity.
Q.
Arethereotheroccasionsthatyoucanrecall?
Q.
Anothertime,youwerelateinfilingabriefonamotionthatwelaterarguedincourt.The
judge berated you on the record for being late with the brief, and stated that he was going to
disregarditcompletely.
Q.
HowlatewasI,ifyourecall?
A.
I do recall, because you and I both had briefs due in that case on the same day, and we
were both three days' lateit was over a weekend. The briefs were due on Friday, and we
filedthemMonday.Helambastedyouontherecord,anddidn'tsayawordtome.
Q.
Inyouropinion,howbigadealwasittobethreedays'lateonthesebriefs?
A.
Frankly, not a big deal at all. On the day the briefs were due, the hearing was at least a
weekaway.Therewasnoindicationthatthejudgeorhisclerksintendedtoworkonthestuff
overtheweekend.
Q.
Isthejudgenotedtobeasticklerfortime?
A.
NotonsomethinglikethisandasIsaid,Ididthesamething,andhedidn'tsayanything
tome.
Q.
Whathappenedinthatcase?
A.
Wewenttotrial.
Q.
Whowon?
A.
Thejurygaveyouaverdict.Idon'tthinkitwasasmuchasyouwanted,butitwasaver-
dictinyourfavor.
Q.
HowwouldyousayJudge____________actedtowardsmethroughthattrial?
A.
Hewasbarelyciviltoyou.Eveninfrontofthejury.
Q.
Whathappenedafterthetrial?
A.
Thejudgetooktheverdictaway.Hegrantedanewtrial.Youappealedagain,andtheap-
pellatecourtreversedandreinstatedtheverdict.
Q.
Are you aware of any remarks Judge ____________ has made against me in a social set-
ting?
A.
OnethatIrecall.
Q.
Tellthecourt.
A.
Itasatasocialhourbeforethebarmeeting.Iwasstandinginagroupofthreeorfourlaw-
yersandjudges,whichincludedJudge____________.Weweretalkingabouttheimportance
of
Q.
Holdon.Beforewegettothat,whenandwheredidthisoccur?
A.
Uh, it was the midwinter meeting in _______[date] and the ____________[hotel] as I re-
call.
Q.
Whoallwaspresent?
A.
Therewerefour,asIrecall,besidesmyself____________[namesofthosepresent.]
Q.
OK,now,whatdidJudge____________say?
A.
Well, as I said, we were talking about the importance of credibility of the attorney when
appearingincourt.Judge____________said,"anytimeanattorneyliedtohimormisledhim,
thatattorneywasfinishedinhiscourtroom.Oncethishappened,hesaid,hewouldnevertrust
the attorney again. Then he turned to me, and said, "and you know what I am talking about,
becauseyouweretherethelasttimeithappenedinmycourtroom."Ithoughtitwasclearhe
wastalkingabouttheincidentinvolvingyou.
57.Animosityaffectingclient'sinterest
Q.
Doyouhaveanopinion,baseduponyourskillandexperience,andbaseduponyouknow-
ledge and familiarity with the courts, whether Judge ____________'s apparent attitudes and
actionstowardsmewouldgiverisetoareasonablebasistoquestionhisimpartialitytowards
meortowardsmyclient?
A.
Ihaveanopinion.
Q.
Whatisyouropinion?
Comment:
It is problematical whether this question would be allowed. While modern rules of evidence
doallowopiniontestimonyonspecializedsubjectsbywitnesseswhoarequalifiedasexperts
byreasonoftheirknowledge,skill,experience,trainingoreducation,suchopiniontestimony
mustbeinanareawhereitwillassistthetrieroffacteithertounderstandotherevidenceorto
determineafactinissue.[32]Thetrieroffactinadisqualificationmotionwill,ofcourse,bea
judge,whomaywelldecidethatheorshedoesnotneedopiniontestimonytounderstandand
decidetheissues.Ontheotherhand,thejudgetryingthemotionissuesmayconcludethatitis
appropriate to allow opinion testimony on point, to establish an evidentiary reference in the
record upon which to base the ultimate findings. Counsel may wish to test the waters in ad-
vance,withanofferofproof.
A.
In my opinion, Judge ____________ has demonstrated a bias towards you, which might
originallystemfromyourparticipationinacasesomeyearsago,butwhichhascontinuedinto
othercasesandwhichcontinuestothisday.
Q.
Inyouropinion,doesthisbiasreasonablyappeartoaffecthisabilitytobefairandimpar-
tial?
A.
I cannot read his mind, of course. But I do not think he appears be fair and impartial to-
wardsyouwhenyouareinvolvedinamatterbeforehim.
Q.
Inyouropinion,wouldmyclientbeatadisadvantageifwewereobligatedtocontinueon
withtheinstantcasebeforeJudge____________?
A.
Oh, yes. In my opinion, you should withdraw rather than continue on before this judge.
Withtheattitudeshehasdemonstratedtowardsyou,youcouldnotingoodconsciencecontin-
uetoattempttorepresentyourclientinhiscourtroom.
COUNSEL:
Thankyou,that'sall.
Cases:
Judge's bias against plaintiffs' counsel in medical malpractice case was equivalent to bias
againstplaintiffs,forpurposesofrequirementofCodeofJudicialConductthatjudgesrecuse
themselves from proceedings in which their impartiality might reasonably be questioned on
account of personal bias or prejudice against a party; judge's bias toward plaintiffs' counsel
mayhavebeenresponsibleforherdeterminationto"cut[plaintiffs'counsel]anewasshole[]"
indenyingplaintiffs'recusalmotion,butitresultedinarulingagainstplaintiffsontheirmo-
tion.CodeofJud.Conduct,Canon3(C)(1)(a).InreLokuta,964A.2d988(Pa.Ct.Jud.Discip-
line2008).
[TopofSection]
[ENDOFSUPPLEMENT]
D.ExaminationofJudge
[It is the rare case where the challenged judge testifies at a hearing on recusal, but it has
occurred.[33] As is suggested in the text, counsel would probably by unable to depose a sit-
tingjudge,orsubpoenaonetotestifyinvoluntarily.Butifthejudgestepsforwardtovoluntar-
ily offer testimony, the judge would be subject to cross examination. The following scenario
isthehypotheticalcrossexaminationofthetrialjudgebythemovingparty.
Note the emphasis on deferential, circumspect questioning. This is not the time for a de-
structive, scorched-earth, back-em-in-the-corner and leave-no-prisoners cross examination.
Unlesscounselintendstomovetoanotherplanet,thiscallsfortheepitomeofakid-glovesap-
proach.]
58.Background
[Afterintroductionandidentificationofwitness]
Q.
Goodafternoon,Judge.Ijusthaveafewquestionstoclarifysomeofthepointsyoumade
onyourdirecttestimony.
A.
Verywell.
Q.
Iamnotverycomfortableinthistask,Judge,Ihopeyouunderstandthat.
A.
Isthataquestion?
Q.
Nosir,butIdowanttocleartheairaboutafewthings.YouandIknowoneanother,cor-
rect?
A.
Yes,that'strue.
Q.
Ihaveappearedinyourcourtbeforeonmanyoccasions?
A.
Yes,that'strue.
Q.
AndIhaveneverhadoccasiontoseekyourrecusalbefore?
A.
Tomyrecollection,thatistrue.
Q.
Ihaveneverfiledastatutorymotionforyourrecusalfromoneofmycases,andhavenev-
erbeforefiledamotionfordisqualificationforcause.Doweagree?
A.
Ihavenorecollectionotherwise,buthavenotresearchedtherecords.
Q.
And you and I have worked on bar association matters, and we are both members of
____________[professionalassociation].
A.
That'sright.
Q.
Butotherthantheseprofessionalconnections,wearenotsocialfriends.
A.
Yes,that'strue.
Q.
Ihaveneverbeentoyourhome,andyouhaveneverbeentomine.
A.
That'strue.
Q.
ButIdidseekyourrecusalinthiscase.
A.
Yes,Ireadthatwell,yousignedthemotion.
Q.
AndIsubmittedtheaffidavit.
A.
That'scorrect.
59.Recusalaffidavit
Q.
Judge,didIsayanythinginmyaffidavitthatwasnottrue?
A.
Well,it'sinhowyoulookatitthecontextofthestatements.
Q.
I understand sir, but my question is as to the precise facts stated in the affidavit. Is there
anythinginthataffidavitthatyoucontendisnottrue?
A.
Well,Idon'thavetheaffidavitrightbeforeme.
Q.
Allrightsir,let'slookatit.Throughthecourtesyofthebailiff,Iamhandingyouacopyof
theaffidavit,whichisacopyoftheaffidavitfromthecourtfile.Youhavereadthataffidavit,
haven'tyou?
A.
Ohyes.
Q.
Let'sreadittogether.ParagraphonesaysthatIamanattorneyandamattorneyofrecord
for____________[party]inthiscase.
A.
Correct.
Q.
Andthat'strue?
A.
Yes,sofarasIknow.
Q.
Well,tobeprecise,itispartoftherecord,isn'tit?
A.
Yes,itis.
Q.
Secondparagraphsaysthatyouarethejudgeassignedtothecase?
A.
Yesthat'saccurate.
Q.
Paragraph three says that, as of the time of the filing of the affidavit, there had been no
contestedhearingsorothermatterspertainingtothecasepresentedtoyou,andthatamotion
fordisqualificationwastimelyunderRule_______oftheRulesofCivilProcedure.
A.
Yes.
Q.
And that statement is accurate today, and was accurate when the affidavit was filed, cor-
rect?
A.
Yes.
Q.
AndthenextparagraphsaysthatIwroteyoualettersuggestingthatitmightbeappropri-
ateforyoutovoluntarilyrecuseyourself,butthatyoudeclined.Isthatafairstatement,asyou
recall?
A.
Yes, that is accurate. I advised that there was no basis for my disqualification, and that
nothingyoumentionedwouldhaveanyimpactuponmyrulings.
Q.
Indeedyoudid,sir.AndIattachedbothofourletterstotheaffidavit,right?
A.
Yes,Iseethem.
Q.
Souptohereintheaffidavit,youagreewitheverythingIhavesaid?
A.
Yes,Ido.
60.Membershipincountryclub
Q.
Now, the next paragraph says that, on information an belief, you are a member of the
____________countryclub.Isthatstatementtrue?
A.
Thathasnothingtodowithmyabilitytodecidethiscaseinanimpartialmanner.
Q.
Judge,please.Isthestatementtrue,isitacorrectstatementofthefact?
A.
Butitisirrelevant.
Q.
Butisittrue?
A.
Yes,Iamamember.That'strue.
Q.
Now,sinceyouhavebeenonthebench,haveyouservedinanycapacityasanofficeror
directorofthecountryclub?
A.
No,Ihavenot.
Q.
Butyoudoparticipateintheactivitiesthere?
A.
Ido.
Q.
Youareanactivegolfer,yourwifeandchildrenplaytennisandusetheswimmingfacilit-
ies,andyouandyourwifefrequentlydineattheclubhouse.Correct?
A.
Yes,itistruethatweenjoytheclubgreatly.
Q.
Youplaygolfthereatleastonceandoftentwiceaweekendduringthreeseasonsspring,
summerandfall?
A.
Well,latespringtoearlyfallIamafairweathergolfer.
Q.
Yourchildrenareontheclubswimmingteam?
A.
Theyare.
Q.
Youroldestboyisplayinggolfnow,andisonthejuniorgolfteam?
A.
That'sright.Infactheisplayinginatournamentthisweekend.
Q.
Andyouandyourwifedinethere,whattwoorthreetimesamonth?
A.
Yes,weenjoytheprivacyoftheclubanduseitfrequently.
61.Clubdiscriminatesagainstwomenandminorities
Q.
Theparagraphintheaffidavitgoeson,"thatthe____________countryclubdoesnotad-
mitwomenorminorityracestomembership."True?
A.
Thatusedtobethecase,itisnottrueanylonger.
Q.
Oh,andwhendidthatchange?
A.
Atleast15yearsago,thebylawsandcharterwereamended.
Q.
Doyouknowwhatthecurrentpolicyoftheclubis?
A.
Iamsureitistoadmitwomenandminorities.
Q.
Butdoyouknowthatforafact?
A.
Well,Iknowwhatthecharterandbylawssay.
Q.
Butdoyouknowhowthoseprovisionsarebeingimplementedbytheclubmanagement?
A.
Well,Ihavenotbeenontheboardoronthemembershipcommitteeforanumberofyears.
Q.
Soyoudonotknowitforafact,asyousitheretoday?
A.
Well,Idon'thavethestatistics,butIthinkIamright.
Q.
Shallwesaythatyoumaydisagreewiththestatementinmyaffidavit?
A.
Well,Ithinkit'swrong.
Q.
Iunderstand,sir.Butyoudon'tknowforsure,doyou?
A.
Umwell,no.
62.Judge'sinvolvementinchangingbylaws
Q.
Now you said that the bylaws and charter of ____________ country club were amended
yearsagoorso,doyourecallthattestimony?
A.
Yes.
Q.
And the bylaws and charter now provide that membership is open to any person of good
character,withoutregardtogender,race,color,creedornationalorigin.
A.
Yes,that'swhattheyprovidenow.
Q.
Sopriortotheseamendments,whichwouldhavebeenin_______[year],theclubdiddis-
criminateagainstminoritiesandwomen?
A.
Well,Iamnotsure,becauseIhadn'tbeenamemberforverylongthen.ButIunderstand
thatthepolicyatonetime,manyyearsago,wastoexcludewomenandminorities.Thatwasa
numberofyearsago.
Q.
Andthecharterandbylawswerechangedtotakecareofthat?
A.
Thebylawsandcharteramendmentstookcareofthat.
Q.
Infairness,Judge,youwereinstrumentalinbringingaboutthechangestothebylawsand
charterbackin____________[year],weren'tyou?
A.
Yes,Iwas.Iamproudofmypartinmakingthesechanges.
Q.
Youwereontheboardofdirectorsthen?
A.
Iwas.
Q.
Andinfact,yousaidyouwouldresignfromtheclubandjoininaclassactionagainstitif
thebylawsandcharterwerenotamended.Isn'tthatcorrect?
A.
That'strue.
Q.
Youweren'tonthebenchyet,butyouwereaprominentlawyerinthecommunity?
A.
Well,Idon'tknowhowprominentIwasbackthen.
Q.
Judge, you just have to take my word for it, then, but you weren't on the bench
yetcorrect?
A.
Yes,Iwasn'tappointedtothebenchuntil____________[date].
63.Club'spresentpolicy
Q.
Areyouawareofhowthemembershippolicyisbeingadministerednow?
A.
Whatdoyoumean?
Q.
Afteryoubroughtaboutthechangeinthebylawsandcharterbackin_______[year],how
manymembersofaminorityracehavebeenadmittedtotheclub?
A.
I am not sure. I haven't looked at that issue since I was on the board. There are some, I
know.
Q.
Therewere_______[number]ofminoritymembersadmittedtotheclubinthefouryears
followingthechangeinthebylaws.Isn'tthatcorrect?
A.
Thereweresome,Iknow.Idonotknowtheexactnumber.
Q.
Andthatfouryearperiodwasduringthetimeyouwereadirectoroftheclub,correct?
A.
Yes,that'scorrect.
Q.
And you have not been involved with membership, or any other issue of management of
theclubsincethattime,haveyou?
A.
No,whenIwasappointedtothebench,Iresignedallpositionswithallorganizations.
Q.
Judge, in fairness, you are not really aware of what is going on within the administration
ofthatclub,areyou?
A.
Frankly, no. I try to stay away from any issue which might compromise my impartiality.
ThatiswhyIresignedfromtheboardofdirectors.
Q.
Sowhenyousaythattheclubdoesnotdiscriminateagainstminorities,youbasethatstate-
mentonwhatyoudidwhenyouwereanofficeranddirectoroftheclubover_______years
agocorrect?
A.
Well,nowthatIthinkaboutit,thatmaybeaccurate.
Q.
Judge, would it surprise you to know that in the last _______ years, there have been no
minoritymembersadmittedtomembershipatthe____________countryclub?
A.
II haven't thought about it. Perhaps there were no applications, or the applicants were
notqualified.
Q.
Judge,therewereover_______applicationsfrommembersofoneminorityoranother,all
wereprofessionalorbusinesspeoplewithamplefinancialcapacity,allwithexcellentcreden-
tialsinthecommunity,andnonewereapprovedformembershipbythemembershipcommit-
tee.Herearetherecords,ifyouwouldliketolookatthem.Doesthatsurpriseyou?
A.
Yes,itdoes.
Q.
DoyouknowMr.____________[name],myclient?
A.
No.
Q.
Youhavenevermet?
A.
No.
Q.
DoyouknowhimtobeJapanese?
A.
Well,Iwouldassumesobecauseofhisname.
Q.
Did you know that he applied for membership to the ____________ country club in
_______[year]?
A.
Iwasnotawareofthat.
Q.
Soyouwouldnotbeawarethathewasturneddown?
A.
No,Iwouldnotbeawareofthat,either.
Q.
Areyouawarethat____________[opposingparty]isamemberoftheclub?
A.
Ihaveseenhimattheclub,butIwasnotawarethathewasamember.
Q.
Heisasocialmember,notagolfingmember.
A.
Well,thereareaconsiderablenumberofsocialmembers.So,again,Imayhaveseenhim
aroundtheclubhouse,butIwasnotawarethathewasamember.
Q.
Butyoudon'tquestiontheassertionthatheisamember,doyou?Wehavetherecords,if
youwouldliketolook,andhehasacknowledgedhisconnectionwiththeclub.
A.
No,Itakeyourwordforit.Ijustwasn'tawareofituntilnow.
Q.
Sir, can you understand that it might be somewhat discomfiting to Mr.
____________[name],myclient,toknowthatyouandMr.____________[adverseparty]are
membersofthesamecountryclub,aclubwhichheappliedforandwasrefused?
A.
Yes,butIassureyouandyourclientthatitwouldmakenodifferencetomyrulings.
Q.
Butisn'tthattherub?Shouldheneedyourassurancesinthisarea?Wouldn'titbebetterto
transfer this case to a judge who did not have these connections through the ____________
countryclub?
A.
Whichoneofthosequestionsdoyouwantmetoanswer?
Q.
Judge,you'reright.Letmewithdrawthatquestion,orthosequestions,andaskitthisway:
takealookattheparagraphintheaffidavitagain.TheparagraphwhereIsaythatyouraffili-
ation with a country club which discriminates against minorities, and which specifically has
discriminatedagainstMr.____________,amemberoftheJapaneserace,givesrisetoareas-
onablequestionovertheissueofyourimpartiality.Doyouseethatparagraph?
A.
Yes.
Q.
Inlightofwhatwehavejusttalkedabout,doyoustilldisagreewiththatparagraph?
A.
Well,Iwasn'tawareofanyofthis.
Comment:
Clearly, the cross examiner could continue to press the witness further back into the corner.
Butitshouldbeunnecessarytopressajudgeanyfurtherontheissueofrecusal.Sincethetest
is not actual bias but the appearance of even a potential bias, the evidentiary point has been
made.Thereisnoreasontomakethejudgeanymoreuncomfortable.Eveninthebestofcir-
cumstances,themotionfordisqualificationmightstillbedenied,whichmeanscounselwould
have to continue the case before the original judge. Given this risk, there is much to be said
foravoidingadestructivecrossexaminationunlessabsolutelynecessary.
64.Potentialforbiasandprejudice
Q.
Thankyou,Judge.Lookatthenextparagraph.Istate,oninformationandbelief,thatyour
fatherwaskilledinWorldWarIIwhilefightinginthePacifictheater.Isthatatruestatement?
A.
Yes,thatisaccurate.
Q.
Howoldwereyouwhenyourfatherwaskilled?
A.
Iwas____________.Barelyateenager.
Q.
ButoldenoughtoknowthatyourfatherwaskilledinthewarwithJapan?True?
A.
Ohyes.
Q.
Andwoulditbefairtosaythatatthattime,youandyourentirefamilyblamedtheJapan-
eseforyourfather'sdeath?
A.
IamsureIdidatthattimebutthatwasmanyyearsago.
Q.
Butthosewereprettystrongfeelingsatthetime,weren'tthey?
A.
Yes,Iamsuretheywere.ButIhaven'teventhoughtaboutitforyears.
Q.
Can you say that you have set aside any feelings you might have had at one time against
theJapanese,andcanjudgeacasetodaywithtotalimpartiality?
A.
IamsureIcould.
Q.
Haveyoueverbeencalledupontodoso?
A.
Whatdoyoumean?
Q.
Haveyoubeenfacedwiththisissuebefore?WithalitigantwhoisJapanese,andwhohas
raisedtheissueofyourpotentialforbias?
A.
No, I do not believe I have. But this was over 50 years ago. I have changed, the whole
countryhaschangedinthattime.Igrewup,mylifewenton.
Q.
Yessir,butyouhaveneveractuallyfacedthisissue,haveyou?
A.
Inmymind,Ihave.Iamsatisfiedinmyownmindthatitisirrelevant.
Q.
Withrespect,sir,youhavenothadtofacethisissueinatrial,withactuallitigantsinfront
ofyou.
A.
Yes,youareright.Thatisaccurate.Ihavenot.
65.Familyaffiliations
Q.
Onelastarea,please.Lookatthenexttothelastparagraphintheaffidavit.Theparagraph
reads, "Upon information and belief, ____________[name] is a recently admitted partner in
thefirmwhichappearsascounselfortheplaintiff,andisrelatedtothejudge'swife.Plaintiff's
firmasthiscaseonacontingentfeeagreement,andtherefore____________[name]hasanin-
terest in the outcome of this case." Is that statement correct? The part about the relationship
between____________andyourfamily?
A.
Technically,no,itisnotaccurate.
Q.
Explaintherelationship,then,ifyouwouldplease.
A.
Of course. It is complicated. My wife had a son by a prior marriage, who is my stepson.
Hemarriedagirlwhohadachildbyapriormarriage.Thischildisthelawyeryoumentioned
intheaffidavit.Sheismystepson'sstepdaughter,butlegally,shenorelationtoeithermywife
or me. My stepson's wife was killed in an accident when the child was still in grade school,
and she went to live with her biological father. She grew up, became a lawyer, and has re-
centlybecomeapartnerinthe____________firm,thatpartisperfectlytrue.
Q.
Butisn'titalsofairtosaythatshehasremainedclosetoyourfamily?
A.
Oh,yes.Mystepsonand____________'smotherhadtwootherchildrenwhiletheywere
married, who were ____________'s half siblings, of course. After their mother's death, my
stepson thought it important that the relationship between the siblings be maintained, so
____________wasalwaysincludedinallofourfamilygatherings.Heandhischildrencame
tolivewithuseforagoodwhile,and____________wasafrequentguestinourhomewhile
shewasgrowingup.
Q.
Haveyouprovidedfinancialsupporttoher?
A.
Notdirectly.Wedidloanmystepsonsomemoneysohecouldhelpher.
Q.
Isn'tsheinrealitypartofyourfamily?
A.
She is very close to us, that is true. But I am very close to a number of lawyers. I have
good friends in the barvirtually all of my close friends are lawyers. I have had many law
clerks while a judge, and all are close to me. I have to draw a line somewhere, otherwise I
would have to disqualify myself every time I turned around. So the line I draw for myself is
thelinedrawnintherule.
Q.
Andwhatisthat?
A.
To be a disqualifying factor on the basis of familial relationships, the relationship has to
exist between me or my wife within the third degree of consanguinity. To me, this means a
bloodrelativeofmineofmywife'swithinthatlegaldegreeofrelationship.
Q.
Soifarelationshipdoesnotfallwithinthatboundary,theboundaryofbloodrelationships,
itdoesn'tcount?Isthatwhatyouaresaying?
A.
Exactly.Thatiswhattheruleprovides.
Q.
Nomatterhowclosetherelationshipmightactuallybe?
A.
Yes,becauseofwhatIhavesaid.
Q.
Well,thereisonedifferenceinyourrelationshipwith____________,thatbeingthecon-
nectionbetweenherandyourothergrandchildrenandyourstepson?Doesn'tthatmakeadif-
ference?
A.
Yes, I mean noit does not make a difference. Technically there is no relationship
between the child and me at all. Legally, she is the same to me as my former law clerks, for
example.
Q.
Judge,withrespect,howmanyofyourformerlawclerkscallyou"grampa"?
A.
[noanswer]
Q.
Doesn't____________callyou"grampa,"andhasn'tshelookedonyouashergrandfather
sinceshewasthreeyear'sold?
A.
Well,yes,shedoes.Andthat'strue.
Counsel:
Thankyou,Judge.That'sall.
V.Bibliography
66.Legalperiodicals
Editor'sComment:
ThereferencesfromthisBibliographycanbefoundinthefrontmatterofthisarticle, 50Am.
Jur.ProofofFacts3d449.
RESEARCHREFERENCES
Anannounceclausebyanyothername:theunconstitutionalityofdiscipliningjudgeswho
fail to disqualify themselves for exercising their freedom to speak, 55 Drake L. Rev. 723
(2007WL2193843)
Beliefs on the bench: recusal for religious reasons and the Model Code of Judicial Con-
duct,19Geo.J.LegalEthics895(2006WL1895998)
Duckingrecusal:justiceScalia'srefusaltorecusehimselfandtheneedforauniquerecus-
alstandardforSupremeCourtjustices,84Neb.L.Rev.650(2005WL3844653)
Freespeechforjudgesandfairappealsforlitigants:judicialrecusalinapost-Whiteworld,
[RepublicanPartyv.White,536U.S.765(2002)],55DrakeL.Rev.691(2007WL2193842)
Howtoremoveafederaljudge,116YaleL.J.72(2006WL4005330)
Judgeisaverbaswellasanoun,31Litigation3(2005WL3751157)
Judicial ethics and judicial settlement practices: time for two strangers to meet, 21 Ohio
St.J.onDisp.Resol.569(2006WL1591556)
JudiciallimitationsinADR:theroleandethicsofjudgesencouragingsettlements,20Geo.
J.LegalEthics51(2007WL1602468)
Judicial recusal and disqualification: the need for a per se rule on friendship, 33 Pepp. L.
Rev.575(2006WL1314769)
Prosecutingjudgesforethicalviolations:arecriminalsanctionsconstitutionalandprudent,
or do they constitute a threat to judicial independence? 33 Fordham Urb. L.J. 727 (2006 WL
1887927)
Strategiesforhandlingahostilejudge,33Litigation49(2007WL1884816)
185(3)
125,913(2)
39to56
9
49
Theregoesthejudge:whatjudgesneedtodotogetkickedoffthebench,27Cal.Law.30
(2007WL4733320)
West'sKeyNumberDigest
West'sKeyNumberDigest,AppealandError
West'sKeyNumberDigest,CriminalLaw
West'sKeyNumberDigest,Judges
West'sKeyNumberDigest,Judgment
West'sKeyNumberDigest,Venue
PrimaryAuthority
FederalRulesofCivilProcedure,see28U.S.C.A.
FederalRulesofEvidence,see28U.S.C.A.
JudiciaryandJudicialProcedure,28U.S.C.A.451etseq.
A.L.R.Library
A.L.R.Index:BiasorPrejudice
A.L.R.Index:CountyCourtJudge,Judges
A.L.R.Index:QualificationorDisqualification
Construction and Application of Rule of Necessity Providing that Administrative or
Quasi-judicialOfficerIsNotDisqualifiedtoDetermineaMatterBecauseofBiasorPersonal
InterestifCaseCannotBeHeardOtherwise,28A.L.R.6th175
Construction and Application of Rule of Necessity in Judicial Actions, Providing that a
JudgeIsNotDisqualifiedtoTryaCaseBecauseofPersonalInterestIfCaseCannotBeHeard
Otherwise,27A.L.R.6th403
Nature and Determination of Prejudice Caused by Remarks or Acts of State Trial Judge
Criticizing,Rebuking,orPunishingDefenseCounselinCriminalCaseasRequiringNewTri-
alorReversalIndividualizedDeterminations,104A.L.R.5th357
Construction and Validity of State Provisions Governing Designation of Substitute, Pro
Tempore,orSpecialJudge,97A.L.R.5th537
Laws Governing Judicial Recusal or Disqualification in State Proceeding as Violating
FederalorStateConstitution,91A.L.R.5th437
Disqualification of Judge for Having Decided Different Case Against LitigantState
Cases,85A.L.R.5th547
PriorRepresentationorActivityasProsecutingAttorneyasDisqualifyingJudgefromSit-
tingorActinginCriminalCase,85A.L.R.5th471
PowerofSuccessororSubstitutedJudge,inCivilCase,toRenderDecisionorEnterJudg-
mentonTestimonyHeardbyPredecessor,84A.L.R.5th399
Disqualificationofjudgebasedonproperty-ownershipinterestinlitigationwhichconsists
ofmorethanmereownershipofstockstatecases,56A.L.R.5th783
Disqualificationofjudgeforbiasagainstcounselforlitigant,54A.L.R.5th575
Prejudicial effect, in civil case, of communications between judges and jurors, 33 A.L.R.
5th205
Disqualification of judge as affecting validity of decision in which other nondisqualified
judgesparticipated,29A.L.R.5th722
Disciplinaryactionagainstjudgeongroundofabusiveorintemperatelanguageorconduct
towardattorneys,courtpersonnel,orpartiestoorwitnessesinactions,andthelike,89A.L.R.
4th278
Disqualificationofjudgebecauseofpoliticalassociationorrelationtoattorneyincase,65
A.L.R.4th73
Disqualification of judge in state proceedings to punish contempt against or involving
himselfinopencourtandinhisactualpresence,37A.L.R.4th1004
Disqualificationofjudgebecauseofassaultorthreatagainsthimbypartyorpersonasso-
ciatedwithparty,25A.L.R.4th923
Validity and application of state statute prohibiting judge from practicing law, 17 A.L.R.
4th829
Proprietyandprejudicialeffectofprosecutor'sargumentgivingjuryimpressionthatjudge
believesdefendantguilty,90A.L.R.3d822
Membershipinfraternalorsocialclubororderaffectedbyacaseasgroundfordisquali-
ficationofjudge,75A.L.R.3d1021
Disqualificationofjudge,justiceofthepeace,orsimilarjudicialofficerforpecuniaryin-
terestinfines,forfeitures,orfeespayablebylitigants,72A.L.R.3d375
Affidavitormotionfordisqualificationofjudgeascontempt,70A.L.R.3d797
Disqualificationofjudgebystate,incriminalcase,forbiasorprejudice,68A.L.R.3d509
Disqualificationoforiginaltrialjudgetositonretrialafterreversalormistrial,60A.L.R.
3d176
Setting aside arbitration award on ground of interest or bias of arbitrators, (secs. 1317,
35,2731partiallysupersededbySettingasidearbitrationawardongroundofinterestorbi-
as of arbitratorsinsurance appraisals or arbitrations,63 A.L.R. 5th 675, and partially super-
seded by Setting Aside Arbitration Award on Ground of Interest or Bias of Arbitrat-
orsTorts,64A.L.R.5th475),56A.L.R.3d697
Disqualification of judge because of his or another's holding or owning stock in corpora-
tioninvolvedinlitigation,25A.L.R.3d1331
Disqualificationofjudgeongroundofbeingawitnessinthecase,22A.L.R.3d1198
Disqualification of judge for having decided different case against litigant, 21 A.L.R. 3d
1369
Propriety and prejudicial effect of suggestion or comments by judge as to compromise or
settlementofcivilcase,6A.L.R.3d1457
NatureandDeterminationofPrejudiceCausedbyRemarksorActsofFederalTrialJudge
Criticizing,Rebuking,orPunishingDefenseCounselinCriminalCaseasRequiringNewTri-
alorReversal,178A.L.R.Fed.381
Justification,Correction,orExcusalofRemarksorActsofFederalTrialJudgeCriticizing,
Rebuking,orPunishingDefenseCounselinCriminalCaseasOtherwiseRequiringNewTrial
orReversal,170A.L.R.Fed.309
Disqualificationofjudgeunder28U.S.C.A.455(b),providingfordisqualificationwhere
judgehasfinancialorotherinterestinproceeding,163A.L.R.Fed.575
Propriety and Prejudicial Effect in Civil Trial of Federal Judge's Disparaging Remarks
ConcerningParty,WitnessorAttorney,144A.L.R.Fed.363
Timeliness of Affidavit of Disqualification of Trial Judge Under 28 USCA 144, 141
A.L.R.Fed.311
Disqualification of Federal Judge, Under 28 U.S.C.A. 455(B)(5)(ii), on Ground That
Judge'sRelativeIsActingasLawyerinProceeding,73A.L.R.Fed.879
Propriety and prejudicial effect, in federal criminal cCases, of communications between
judgeandjurymembersmadeintheabsenceofcounsel,regardingtheabilityofjurymembers
tocontinuedeliberations,64A.L.R.Fed.874
Mandamusasremedytocompeldisqualificationoffederaljudge,56A.L.R.Fed.494
Disqualification of judge under 28 U.S.C.A. 455(B)(5)(iii), where judge or his or her
spouse,orcertainoftheirrelatives,isknowntohaveaninterestthatcouldbeaffectedbythe
proceeding,54A.L.R.Fed.855
Construction and application of 28 U.S.C.A. 455(A) providing for disqualification of
392
justice,judge,magistrate,orrefereeinbankruptcyinanyproceedinginwhichhisimpartiality
mightreasonablybequestioned,40A.L.R.Fed.954
Propriety and prejudicial effect, in federal civil cases, of communications between judge
andjurymadeoutofcounsel'spresenceandaftersubmissionfordeliberation,32A.L.R.Fed.
Timeliness of affidavit of disqualification of trial judge under 28 U.S.C.A. 144, 24
A.L.R.Fed.290
Form and requirements of certificate and affidavit of disqualification of trial judge under
28U.S.C.A.144,23A.L.R.Fed.637
Disqualification of original trial judge to sit on retrial after reversal or mistrial; federal
cases,22A.L.R.Fed.709
Disqualificationoffederaljudge,under28U.S.C.A.144,foractsandconductoccurring
incourtroomduringtrialorinrulinguponissuesorquestionsinvolved,2A.L.R.Fed.917
LegalEncyclopedias
AppealablemattersDisqualificationofjudge,4Am.Jur.2d,AppellateReview150
Changeofvenueongroundsofdisqualificationorbiasorprejudiceofjudge,21Am.Jur.
2d,CriminalLaw379
Disqualificationofjudgesinthefederaljudicialsystem,32Am.Jur.2d,FederalCourts
47to152,614to664
Disqualificationtoactinparticularcase,46Am.Jur.2d,Judges86to236
Disqualificationofjudge,52Am.Jur.2d,Mandamus322,386
Grounds for grant or denial of writDisqualification of judge for interest, bias, or preju-
dice,63Am.Jur.2d,Prohibition69
TreatisesandPracticeAids
Disqualificationofjudges,FederalProcedure,L.Ed.20:47etseq.
Disqualificationofjustice,FederalProcedure,L.Ed.20:273
Challengestoanddisabilityofjudge,FederalProcedure,L.Ed.20:768etseq.
TrialStrategy
ProofofViolationofFederalRuleofCivilProcedure11andofSanctionsThereunder,47
Am.Jur.ProofofFacts3d241
Zoning: Proof of Bias or Conflict of Interest in Zoning Decision, 32 Am. Jur. Proof of
Facts3d531
EstablishingStatutoryGroundstoVacateanArbitrationAwardinNonjudicialArbitration,
27Am.Jur.ProofofFacts3d103
MentalorEmotionalDisturbanceasDefenseorMitigatingFactorinAttorneyDisciplinary
Proceeding,46Am.Jur.ProofofFacts2d563
BiasofArbitrator,4Am.Jur.ProofofFacts2d709
ReligiousPrejudice,20Am.Jur.ProofofFacts223
BiasorPrejudice,2Am.Jur.ProofofFacts495
EthicsinAdversarialPractice,69Am.Jur.Trials411
DealingwithJudgesAndCourtPersonnel,55Am.Jur.Trials443
ManagingLitigation,51Am.Jur.Trials1
JuryorNonjuryTrial-ADefenseViewpoint,5Am.Jur.Trials123
Cause of Action to Impose Sanctions for Improper Pretrial Conduct Under Federal Rules
ofCivilProcedureRule16(f),21CausesofAction73
Forms
Provisioninlawpartnershipagreementofwithdrawalofpartneruponelectionorappoint-
menttojudgeship,10AAm.Jur.LegalForms2d,Judges156:35
Provision in articles of incorporation for professional law corporation of termination of
right to own stock on election or appointment to judgeship, 10A Am. Jur. Legal Forms 2d,
Judges156:36
Notice of objection to presiding officer or administrative law judge, 16B Am. Jur. Legal
Forms2d,SocialSecurityandMedicare235:183
Disqualificationofjudge,8Am.Jur.PleadingandPracticeForms,CriminalProcedure
421to427
Disqualification of judge on grounds of bias, 8B Am. Jur. Pleading and Practice Forms,
DivorceandSeparation451
Forms for disqualification of judge, 11A Am. Jur. Pleading and Practice Forms, Federal
PracticeandProcedure10201024
Disqualification of judges, general forms, 15 Am. Jur. Pleading and Practice Forms,
Judges6to13
Disqualificationofjudgesbasedonbias,prejudice,interest,priorparticipationincase,re-
lationship,15Am.Jur.PleadingandPracticeForms,Judges16to47
Disqualification of judgesTransfer of proceedings, 15 Am. Jur. Pleading and Practice
Forms,Judges48to51
Waiverofdisqualification,15Am.Jur.PleadingandPracticeForms,Judges60,61
Change of venue based on disqualification, bias or prejudice of trial judge, 24A Am. Jur.
PleadingandPracticeForms,Venue281to283
Disqualificationofjudgeorotherjudicialofficer;judicialmisconductordisability,Feder-
alProceduralForms,L.Ed.1:2331etseq.
LawReviewsandOtherPeriodicals
ABAoffersnewwaytojudgethejudges,N.J.L.J.,May9,2005(2005WL1182547)
Abramson, Leslie W. Deciding Recusal Motions: Who Judges the Judges? 28 Val. U. L.
Rev.543(1994)
Abramson, Leslie W. Specifying Grounds for Judicial Disqualification in Federal Courts,
72Neb.L.Rev.1046(1993)
Alleged conflicts of interest because of the 'appearance of impropriety, 33(4) Hofstra L.
Rev.1141(2005WL3679467)
Apo, Todd K. State v. Mata: Disqualification of a Trial Judge, 13 U. Haw. L. Rev. 641
(1991)
Attorney'ssuspensionsparksdebate:divulgingclientconfidencestoremoveajudgedraws
action,4/28/2003Nat'lL.J.A6(2003WL22017433)
Bleil, Charles & King, Carol, Focus on Judicial Recusal: A Clearing Picture, 25 Tex.
Tech.L.Rev.773(1994)
'Bostonlegalsyndrome'leadstoanetiquettedeficitinthecourts,L.A.DailyJ.,January2,
2008,at6(2008WL343407)
Campaign speech above all: Republican Party of Minnesota v. White and its impact on
motionstodisqualifyjudges,42BrandeisL.J.129(2003WL23647186)
Carton,ChristopherR.DisqualifyingFederalJudgesforBias:AConsiderationoftheEx-
trajudicialBiasLimitationforDisqualificationunder28U.S.C.A.455(A),24SetonHallL.
Rev.2057(1994)
Censure, transfer in store for judge who drove drunk, N.J.L.J., July 24, 2006, (2006 WL
2066208)
Circuit faults judge's failure to recuse himself, N.Y. L.J., May 30, 2007 (2007 WL
1653216)
Confidentiality in chambers: is private judicial action the public's business? 62 Bench &
B.Minn.14(2005WL852482)
Courtwon'treviewremovalofjudgefromVioxxcases,L.A.DailyJ.,July28,2005,at1
(2005WL2273279)
Criticismmountsthatjudiciarylacksselfdiscipline:congressmanwantsaninspectorgen-
eral to ensure unethical judges are punished, L.A. Daily J., May 22, 2006, at 1 (2006 WL
1793990)
DA seeks removal of judge from case for 'bias', L.A. Daily J., April 27, 2007, at 1 (2007
WL1644670)
Devlin,CindyM.DisqualificationofFederalJudgesThirdCircuitOrdersDistrictJudge
JamesMcGirrKellytoDisqualifyHimselfsoastoPreserve'TheAppearanceofJustice'Un-
der28U.S.C.A.455,38Vill.L.Rev.1219(1993)
Disclosureformsforjudgeshavepregnantgaps:detailscanbeleftoutorgeneralized,con-
cealingpotentialconflictsofinterest,172N.J.L.J.25(2003WL21479662)
Disqualificationorsuppression:dueprocessandtheresponsetojudicialcampaignspeech,
104Colum.L.Rev.563(2004WL966360)
DisqualificationofJudges- Partiality- 'ExtraJudicialSourceDoctrine',9No.4Fed.Lit-
igator99(1994)
Duck,duck,goose:huntingforbetterrecusalpracticesintheUnitedStatesSupremeCourt
inlightofCheneyv.UnitedStatesDistrictCourt,[124U.S.1391(2004)],84(1)N.C.L.Rev.
181(2005WL3681211)
Duckduckrecuse?Foreigncommonlawguidance&improvingrecusalofSupremeCourt
justices,62(4)Wash.&LeeL.Rev.1799(2005WL4705342)
Duck hunting, deliberating, and disqualification: Cheney v. U.S. District Court and the
flawsof28U.S.C.455(a),15(2)B.U.Pub.Int.L.J.319(2006WL3506359)
Federal Judge Is Removed From Three Asbestos Cases, 27 Pa. L. Wkly. NA (2004 WL
1700661)
Feerick,JohnD.DisqualificationofJudges(TheSarokinMatter):IsitaThreattoJudicial
Independence?58Brook.L.Rev.1063(1993)
Howfarcanalawyergoincriticizingajudge?27J.LegalProf.227(2003WL22863515)
Judge accused of drunkenness on the bench says he was under medication, N.J.L.J.,
November10,2008(2008WL4862155)
Judgerejectsmotiontodisqualify,citespotentialformisuse,149(238)Chi.DailyL.Bull.
1(2003WL24143849)
Judges are clients, too: but representing them raises unique ethics considerations for law-
yers,94A.B.A.J.30(2008WL3851727)
Judicialdisclosureanddisqualification:theneedformoreguidance,28(3)Just.Sys.J.301
(2007WL2847415)
Judicial impartiality and the regulation of judicial election campaigns, 15 U. Fla. J.L. &
Pub.Pol'y205(2004WL1958305)
Judiciarypanelfiresheadoftrafficcourt:watchdogsaysjuristunsuitedtobeajudge;wet
t-shirtcontest,L.A.DailyJ.,November17,2005,at1(2005WL3620967)
Keeping up with the time: new conduct code may require judges to report impaired col-
leagues,lawyers,90A.B.A.J.67(2004WL811931)
Lebow, Michael J. Judicial Disqualification for Bias or Prejudice, 72 Michigan B. J. 684
(1993)
Massachusettsbardevelopsonlinejudicialevaluations,29B.Leader4(2005WL20036)
Moell,ChristopherJ.CasenoteLitekyv.UnitedStates:ApplicationoftheExtrajudicial
SourceRuletoJudicialDisqualification,21OhioN.U.L.Rev.595(1994)
MunicipaljudgefacesethicschargesforDWIpleaandalcotestantics,N.J.L.J.,November
10,2008(2008WL4862160)
Private talks: lawyers shouldn't have ex parte communications with judgesexcept when
it'sOK,93A.B.A.J.20(2007WL577270)
Questionable summary judgments, appearances of judicial bias, and insurance defense in
Texasdeclaratory-judgmenttrials:aproposalandargumentsforrevisingTexasRulesofCivil
Procedure166A(a),166A(b),and166A(i),36St.Mary'sL.J.535(2005WL1757949)
Ranking judges according to citation bias (as a means to reduce bias), 82(3) Notre Dame
L.Rev.1279(2007WL1524806)
Realtrouble:afederaljudge'sbehaviorcouldmovethelinebetweenjudicialfreedomand
misconduct,94A.B.A.J.44(2008WL4323528)
Russianseekingtoavoiddeportationcan'tbarjudge,152(197)Chi.DailyL.Bull.3(2006
WL3128513)
Scalia:proudhedidn'trecusehimselfinCheneycase,152(71)Chi.DailyL.Bull.1(2006
WL1314764)
Scalia'sduckhuntleadstoruffledfeathers:howtheU.S.SupremeCourtandotherfederal
judiciaries should change their recusal approach, 43(2) Hous. L. Rev. 457 (2006 WL
1903751)
The constitutionality of the 2003 revisions to canon 3(E) of the Model Code of Judicial
Conduct, [disqualification; Republican Party v. White, 536 U.S. 765 (2002)], 104 Colum. L.
Rev.1072(2004WL1282823)
The rarely answered question: why recuse? Justice Kennedy's recent unexplained with-
drawalraisescomplexissueagain,L.A.DailyJ.,October23,2007,at1(2007WL3409089)
TheremovalofUtahstatecourtjudges:theSupremeCourtofUtahanditsreviewofJudi-
cialConductCommissionorders,19BYUJ.Pub.L.473(2005WL1655516)
Understandingthepersonbeneaththerobe:practicalmethodsforneutralizingharmfulju-
dicialbiases,42(1)WillametteL.Rev.1(2006WL1745130)
Waynick,DenelleJ.,JudicialDisqualification:TheQuestforImpartialityandIntegrity,33
How.L.J.449(1991)
Weinstein, Jack B. Limits on Judges Learning, Speaking and ActingPart ITentative
FirstThoughts:HowManyJudgesLearn?36Ariz.L.Rev.539(1994)
When judges are accused: an initial look at the new federal judicial misconduct rules,
22(2)NotreDameJ.L.Ethics&Pub.Pol'y325(2008WL3319467)
You're a judge? Do you mind taking a drug test? Nat'l L.J., July 5, 2004 (2004 WL
3246299)
[FN*] Judge McKee is a trial judge in Boise, Idaho. Prior to his appointment to the
benchin1985,hewasengagedfortwenty-oneyearsinaprivatepracticecenteringon
businessandbusinesslitigation.JudgeMcKeeisagraduateoftheUniversityofIdaho
(B.S.,J.D.,1964).
Section3Footnotes:
[FN1]InreMurchison,349U.S.133,75S.Ct.623,99L.Ed.942(U.S.Mich.1955).
[FN2]Martinv.Hunter'sLessee,14U.S.304,4L.Ed.97(1816).
See,Waynick,DenelleJ.,JudicialDisqualification:TheQuestforImpartialityandIn-
tegrity,33How.L.J.449(1991).
[FN3]Batesv.State,210Ark.1014,198S.W.2d850(1947).
[FN4]28U.S.C.A.455.
[FN5]See,forexample,Blizardv.Frechette,601F.2d1217(1stCir.1979).
See, generally, 13A Wright, et al, Federal Practice and Procedure: Civil (2d ed.)
3541.
[FN6]Bleil,Charles&King,Carol,FocusonJudicialRecusal:AClearingPicture,25
Tex.Tech.L.Rev.773(1994).
Section4Footnotes:
[FN7] Idaho Code of Judicial Conduct, The Advocate Deskbook (official publication
oftheIdahoStateBar,April1998).
Section5Footnotes:
[FN8]SeeCodeofJudicialConduct,Canon3C.
Section6Footnotes:
[FN10] Andersen v. Roszkowski, 681 F. Supp. 1284 (N.D. Ill. 1988), judgment aff'd,
894F.2d1338(7thCir.1990).
[FN11]U.S.v.Whitesel,543F.2d1176(6thCir.1976).
[FN12]InreCityofHouston,745F.2d 925,40 Fed.R.Serv.2d(LCP)800(5thCir.
1984).
Section7Footnotes:
[FN14]Tumeyv.StateofOhio,273U.S.510,47S.Ct.437,71L.Ed.749,5OhioL.
Abs.159,5OhioL.Abs.185,50A.L.R.1243(1927).
[FN15] See, for example, Kinnear-Weed Corp. v. Humble Oil & Refining Co., 403
F.2d437(5thCir.1968) (judgewhoheld100sharesof36millionsharesoutstanding
was not disqualified); Lampert v. Hollis Music, Inc., 105 F. Supp. 3 (E.D.N.Y. 1952)
(judgewhoheld20of13.9millionsharesnotdisqualified).
[FN16]See,28U.S.C.A.455(b)(4),455(d)(4);Canons3C(1)(c),3C(3)(c),Codeof
JudicialConduct.
See also Disqualification of Judge Because of His or Another's Holding or Owning
StockinCorporationInvolvedinLitigation,25A.L.R.3d1331.
[FN17] In re Cement and Concrete Antitrust Litigation, 515 F.Supp. 1076, 1981-1
TradeCases64,030(D.Ariz.1981),mandamusdenied,688F.2d1297,1982-2Trade
Cases64,973(9thCir.(Ariz.)1982),aff'd,459U.S.1191,103S.Ct.1173,75L.Ed.2d
425 (U.S.Ariz. 1983), supplemented, 709 F.2d 521, 1983-2 Trade Cases 65,519 (9th
Cir.(Ariz.)1983).
[FN18] Union Carbide Corp. v. U.S. Cutting Service, Inc., 782 F.2d 710, 4 Fed. R.
Serv.3d(LCP)151(7thCir.1986).
[FN19]CodeofJudicialConduct,Canon3Ccomment.
[FN20]MembershipinFraternalorSocialCluborOrderAffectedbyCaseasGround
forDisqualification,75A.L.R.3d1021.
[FN21]Plechnerv.WidenerCollege,Inc.,569F.2d1250,42A.L.R.Fed.313(3dCir.
1977).
[FN22]U.S.v.Sellers,566F.2d884,2Fed.R.Evid.Serv.840(4thCir.(S.C.)1977).
[FN23]U.S.v.Nobel,696F.2d231,12Fed.R.Evid.Serv.(LCP)567(3dCir.1982).
[FN24] In re Kansas Public Employees Retirement System, 85 F.3d 1353 (8th
Cir.(Mo.)1996).
[FN25] Sollenbarger v. Mountain States Tel. & Tel. Co., 706 F.Supp. 776, 1989-1
TradeCases68,543(D.N.M.1989).
[FN26]NewYorkCityDevelopmentCorp.v.Hart,796F.2d976(7thCir.1986).
[FN27] New York City Development Corp. v. Hart, 796 F.2d 976 (7th Cir. 1986)
(internalcitationsomitted).
Section8Footnotes:
[FN28]CodeofJudicialConduct,Canon3C(1)(d).
[FN29]28U.S.C.A.455(b)(5).
[FN30]See,forexample,IdahoR.Civ.Proc.40(d)(2).
[FN31]28U.S.C.A.455(b)(5)(ii).
[FN32]InreAetnaCas.&Sur.Co.,919F.2d1136(6thCir.1990).
[FN33]U.S.exrelWeinbergerv.Equifax,557F.2d4546.
[FN34] S. J. Groves & Sons Co. v. International Broth. of Teamsters, Chauffeurs,
WarehousemenandHelpersofAmerica,Local627,581F.2d1241(7thCir.1978).
[FN35] SCA Services, Inc. v. Morgan, 557 F.2d 110, 40 A.L.R. Fed. 942 (7th Cir.
1977).
[FN36] Nobelpharma Ab v. Implant Innovations, Inc., 930 F. Supp. 1241 (N.D. Ill.
1996),decisionaff'd,141F.3d1059(Fed.Cir.1998),reh'gdenied,inbancsuggestion
declined,(Apr.29,1998)andcert.denied,119S.Ct.178(U.S.1998).
Section9Footnotes:
[FN37]28U.S.C.A.455(b)(2);CodeofJudicialConduct,Canon3C(1)(b).
See,Judge'sPreviousLegalAssociationWithAttorneysConnectedtoCurrentCaseas
WarrantingDisqualification,85A.L.R.4th700.
[FN38]28U.S.C.A.455(b)(5)(iv);CodeofJudicialConduct,Canon3C(1)(d)(iv).
[FN39] National Auto Brokers Corp. v. General Motors Corp., 572 F.2d 953 (2d Cir.
1978)
[FN40] Prior Representation or Activity as Prosecuting Attorney as Disqualifying
JudgeFromSittingorActinginCriminalCase,16A.L.R.4th550.
[FN41]See,13AWright&Miller,FederalPracticeandProcedure(2ded.)3544,and
casescitedtherein.
Section10Footnotes:
[FN42]U.S.v.Bosch,951F.2d1546(9thCir.1991).
[FN43] Milgard Tempering, Inc. v. Selas Corp. of America, 902 F.2d 703, 11 U.C.C.
Rep.Serv.2d(CBC)558(9thCir.1990).
[FN44]InreAllied-SignalInc.,891F.2d967(1stCir.1989).
[FN45]InreAllied-SignalInc.,891F.2d967(1stCir.1989).
[FN46] Milgard Tempering, Inc. v. Selas Corp. of America, 902 F.2d 703, 11 U.C.C.
Rep.Serv.2d(CBC)558(9thCir.1990).
[FN47] Hall v. Small Business Admin., 695 F.2d 175, 65 A.L.R. Fed. 766 (5th Cir.
1983); Miller Industries, Inc. v. Caterpillar Tractor Co., 516 F. Supp. 84 (S.D. Ala.
1980).
Section11Footnotes:
[FN48]DisqualificationofJudgeonGroundofBeingaWitnessintheCase,22A.L.R.
3d1198.
[FN49]U.S.v.Diana,605F.2d1307(4thCir.1979).
[FN50]28U.S.C.A.2255.
[FN51]28U.S.C.A.455.
[FN52]PetitionofGeisser,554F.2d698(5thCir.1977).
Section12Footnotes:
[FN53]CodeofJudicialConduct,Canon3C(1).
[FN54] State v. Elliott, 126 Idaho 323, 882 P.2d 978 (Idaho App. 1994); People v.
Bero, 168 Mich.App. 545, 425 N.W.2d 138 (Mich.App. 1988);Hogan v. Warden, Ely
StatePrison,112Nev.553,916P.2d805(Nev.1996).
Section13Footnotes:
[FN55] 13A Wright & Miller, Federal Practice and Procedure (2d ed.) 3542, citing
Mimsv.Shapp,541F.2d415(3dCir.1976).
[FN56]See,forexample,U.S.v.Conforte,624F.2d869(9thCir.1980).
[FN57]13AWright&Miller,FederalPracticeandProcedure(2ded.)3542.
[FN58]Bergerv.U.S.,255U.S.22,41S.Ct.230,65L.Ed.481(1921).
Section14Footnotes:
[FN59] German v. Federal Home Loan Mortg. Corp., 943 F. Supp. 370 (S.D.N.Y.
1996).
[FN60] U. S. v. Poludniak, 657 F.2d 948, 8 Fed. R. Evid. Serv. (LCP) 1334 (8th Cir.
1981).
[FN61]See,forexample,Tonkovichv.KansasBd.ofRegents,924F.Supp.1084,109
Ed.LawRep.1211(D.Kan.1996).
Section15Footnotes:
[FN62]DisqualificationofJudgeforBiasAgainstCounselforLitigant,54A.L.R.5th
575.
[FN63]Peoplev.Wallace,84Misc.2d619,378N.Y.S.2d290(CountyCt.1975).
[FN64]Shakinv.BoardofMedicalExaminers,254Cal.App.2d102,62Cal.Rptr.274,
23A.L.R.3d1398(Cal.App.2Dist.1967),app.dism.andcert.denied,390U.S.410,
88S.Ct.1112,19L.Ed.2d1272(U.S.Cal.1968).
[FN65] Pinnacle Ins. Co. v. Freeman, 687 So. 2d 989 (Fla. Dist. Ct. App. 5th Dist.
1997).
Section16Footnotes:
[FN66]See,forexample,Bellv.Bell,122Idaho520,835P.2d1331(Ct.App.1992);
Desfossesv.Desfosses,120Idaho27,813P.2d366(Ct.App.1991).
[FN67]DisqualificationofJudgeforHavingDecidedDifferentCaseAgainstLitigant,
21 A.L.R. 3d 1369; Disqualification of Judge for Bias Against Litigant, 23 A.L.R. 3d
1416;DisqualificationofFederalJudgeUnder28U.S.C.A.144forActsorConduct
OccurringinCourtroomDuringTrialorinRulingUponIssuesorQuestionsInvolved,
2A.L.R.Fed.917.
TheconstitutionalaspectisdiscussedinU.S.v.GrinnellCorp.,384U.S.563,86S.Ct.
1698,16L.Ed.2d778(U.S.R.I.1966).
[FN68]Calhounv.SuperiorCourt,51Cal.2d257,331P.2d648(1958).
Section17Footnotes:
[FN69]CodeofJudicialConduct,Canon3C(1)(c).
[FN70]CodeofJudicialConduct,Canon3C(1)(d).
[FN71]CodeofJudicialConduct,Canon3D.
[FN72]Atkinsv.U.S.,214Ct.Cl.186,556F.2d1028(1977).
[FN73] Turner v. American Bar Ass'n, 407 F.Supp. 451 (N.D.Tex. Nov 05, 1975),
aff'd,539F.2d715(7thCir.(Ind.)1976)and542F.2d56(8thCir.(Minn.)1976).
[FN74] U. S. v. Corrigan, 401 F. Supp. 795 (D. Wyo. 1975), judgment rev'd on other
grounds,548F.2d879(10thCir.1977).
Section18Footnotes:
[FN75]CodeofJudicialConduct,Canon3C(1).
[FN76]StateofIdahov.Freeman,507F.Supp.706(D.Idaho1981).
[FN77] Phillips v. Joint Legislative Committee on Performance and Expenditure Re-
viewofStateofMiss.,637F.2d1014(5thCir.1981).
Section19Footnotes:
[FN78] U.S. v. Escobar, 803 F. Supp. 611 (E.D.N.Y. 1992) lists the states with stat-
utoryorruleprovisionforperemptorychallengesagainstthetrialjudge.
[FN79]IdahoR.Civ.Proc.40(d)(1).
Section20Footnotes:
Section21Footnotes:
[FN82]FormandRequirementsofCertificateandAffidavitofDisqualificationofTri-
alJudgeUnder28U.S.C.A.144,23A.L.R.Fed.637.
[FN83] 13A Wright & Miller, Federal Practice and Procedure (2d ed.) 3550, citing
Phillips v. Joint Legislative Committee on Performance and Expenditure Review of
StateofMiss.,637F.2d1014(5thCir.1981).
[FN85]Martinezv.State,126Idaho813,892P.2d488(Ct.App.1995).
Section22Footnotes:
[FN86]See,forexample,IdahoR.Civ.Proc.40(d)(2)(B)
[FN87] Michigan, for example, requires that motions be filed with fourteen days of
discoveryofgrounds.Mich.Civ.R.2.003(C).
[FN88]28U.S.C.A.455
[FN89] SCA Services, Inc. v. Morgan, 557 F.2d 110, 40 A.L.R. Fed. 942 (7th Cir.
1977).
[FN90]Muenchv.Israel,524F.Supp.1115(E.D.Wis.1981).
[FN91]28U.S.C.A.144.
[FN92]U.S.v.Kelly,519F.Supp.1029(D.Mass.1981).
Seealso,TimelinessofAffidavitofDisqualificationofTrialJudgeUnder28U.S.C.A.
144,24A.L.R.Fed.290.
[FN93]InreInternationalBusinessMachinesCorp.,618F.2d923(2dCir.1980).
[FN94] Tatum v. Southern Pacific Co., 250 Cal. App. 2d 40, 58 Cal. Rptr. 238, 25
A.L.R.3d1325(1stDist.1967).
Section23Footnotes:
[FN95] Idaho R. Civ. Proc. 40(d)(5); State v. Larios, 129 Idaho 631, 931 P.2d 625
(1997).
[FN96]Stateexrel.Johnsonv.Thomson,76N.D.125,34N.W.2d80(N.D.1948).
[FN97] State ex rel. Johnson v. Thomson, 76 N.D. 125, 34 N.W.2d 80 (N.D. 1948);
Adams v. Watts, 67 Ohio App. 81, 21 Ohio Op. 103, 35 N.E.2d 845 (4th Dist.
LawrenceCounty1940).
[FN98]Andersonv.Winstead,65Idaho161,140P.2d233(1943).
[FN99]LewistonLimeCo.v.Barney,87Idaho462,394P.2d323(1964).
[FN1]Watersv.Barclay,57Idaho376,64P.2d1079(1937).
Section24Footnotes:
[FN2] Abramson, Leslie W., Deciding Recusal Motions: Who Judges the Judges, 28
Val.U.L.Rev.543(1994).
[FN3] Idaho R. Civ. Proc. 40(d)(2); Pizzuto v. State, 127 Idaho 469, 903 P.2d 58
(1995).
[FN4]Mo.Stat.Ann.508.120,508.140.
[FN5]Ga.Sup.Ct.R.25.3.
[FN6]Cal.Civ.Proc.Code170.3(C)
Section25Footnotes:
[FN7]See,forexample,IdahoCode7-301(mandamus)and7-401(prohibition).
[FN8] Anderson v. Winstead, 65 Idaho 161, 140 P.2d 233 (1943); Hultner-Wallner v.
Featherstone,48Idaho507,283P.42(Idaho1929).
[FN9]MandamusasRemedytoCompelAssertedlyDisqualifiedJudgetoRecuseSelf
orCertifyHisDisqualification,45A.L.R.2d937;ProhibitionasAppropriateRemedy
to Prevent Allegedly Disqualified Judge From Proceeding With Case, 92 A.L.R. 2d
306.
[FN10]See,forexample,IdahoApp.R.11.
[FN11]Bellv.Bell,122Idaho520,835P.2d1331(Ct.App.1992).
[FN12]Newmanv.DistrictCourtofTenthJudicialDist.ofIdahoinandforNezPerce
County,32Idaho607,186P.922(Idaho1920).
[FN13] Warren v. Superior Court, 64 Cal.App.4th 618, 65 Cal.App.4th 313E, 75
Cal.Rptr.2d351,98Cal.DailyOp.Serv.141,98Cal.DailyOp.Serv.4339,98Daily
JournalD.A.R.5909(Cal.App.1Dist.1998),reviewdeniedandorderednottobeoffi-
ciallypublished(Sep23,1998),modifiedondenialofrehearing,___Cal.Rptr.2d___,
98DailyJournalD.A.R.7190(Cal.App.1Dist.Jun26,1998).
[FN14] Review of Federal Judge's Grant or Denial of Motion to Recuse, 64 A.L.R.
Fed.433.
Section26Footnotes:
[FN15]See,forexample,IdahoR.Civ.Proc.40(d)(1)(B).
Section27Footnotes:
[FN16] Affidavit or Motion for Disqualification of Judge as Contempt, 70 A.L.R. 3d
797.
Section28Footnotes:
[FN17]See,forexample,IdahoR.Civ.Proc.40(d)(2).
[FN18]Martinezv.State,126Idaho813,892P.2d488(Ct.App.1995).
[FN19] See, for example, Martinez v. State, 126 Idaho 813, 892 P.2d 488 (Ct. App.
1995).
[FN20] See, for example, People v. Montpeirous, 133 A.D.2d 709, 519 N.Y.S.2d 876
(N.Y.A.D. 2 Dept. 1987), appeal denied, 70 N.Y.2d 935, 519 N.E.2d 632, 524
N.Y.S.2d 686 (N.Y. 1987);Rogers v. Bradley, 909 S.W.2d 872 (Mem), 38 Tex. Sup.
Ct.J.1168(Tex.1995).
ButseeFraidinv.Weitzman,93Md.App.168,611A.2d1046(Md.App.1992);Tighe
v. Crosthwait, 665 So.2d 1341 (Miss. 1995); Ball v. Melsur Corp., 161 Vt. 35, 633
A.2d705(Vt.1993).
Section35Footnotes:
[FN21]Canon3.D,CodeofJudicialConduct.
[FN22].
Canon3.D,CodeofJudicialConduct
Section36Footnotes:
[FN23]IdahoR.Civ.Proc.40(d)(1)
Section38Footnotes:
[FN24]IdahoR.Civ.Proc.40(d)(2)
Section41Footnotes:
[FN25].
Health Serv. Acquisition v. Liljeberg, 747 F.2d 1463 (5th Cir. 1984), referred to in
Cheevesv.SouthernClays,Inc.,797F.Supp.1570,36Fed.R.Evid.Serv.(LCP)958(M.D.
Ga.1992).
[FN26].
Statev.Lewis,656So.2d1248(Fla.1994).
[FN27].
Peoplev.Ernest,188Ill.App.3d987,136Ill.Dec.500,544N.E.2d1275(5thDist.1989)
,aff'd,141Ill.2d412,152Ill.Dec.544,566N.E.2d231(1990).
[FN28].
Terrazasv.Slagle,142F.R.D.136(W.D.Tex.1992).
Section42Footnotes:
[FN29]Hendersonv.DepartmentofPublicSafetyandCorrections,901F.2d1288,16
Fed.R.Serv.3d(LCP)1182(5thCir.1990).
[FN30]InreSchoolAsbestosLitigation,977F.2d764,78Ed.LawRep.234,24Fed.
R.Serv.3d(LCP)39(3dCir.1992),asamended,(Oct.8,1992).
Section47Footnotes:
[FN31]Fed.R.Evid.611;IdahoR.Evid.611.
Section57Footnotes:
[FN32]IdahoRuleofEvidence702orFedRuleofEvidence702,forexample.
[FN33] See, for example, Matter of Marriage of Benson, 141 Or.App. 458, 919 P.2d
496(Or.App.1996),reviewdenied,324Or.487,930P.2d851(Or.1996).
Westlaw.2011ThomsonReuters.NoClaimtoOrig.U.S.Govt.Works.
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