Recusal – Judge Impartiality and Disqualification

By Hayes Hunt

Recently, the Chief Judge for the United States District Court for the Southern District of New York refused to recuse herself from a case simply because her husband and his clients may have been the victim of the defendant’s efforts to hack a computer system.  Similarly, a Philadelphia judge acquitted a defendant/police officer and his verdict raised “concerns” that the judge was married to a police officer.

Since 2009, when the Supreme Court issued its decision in Caperton v. A.T. Massey Coal Co., Inc. 556 U.S. 868 (2009), the issue of recusal has been a hot topic in civil and criminal litigation.  In Caperton, the Supreme Court ruled that a justice on the West Virginia Supreme Court violated the Due Process Clause of the Fourteenth Amendment by not recusing himself in the case.  Recusal in the case was sought after the appellant’s chairman and principal officer gave a substantial donation to the justice’s election campaign.

28 U.S.C. § 455 governs disqualification of federal judges.  Pursuant to § 455, a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”  (emphasis added).  A judge’s disqualification also is required in particular circumstances.  A judge is required to recuse himself when: (1) he has personal bias or prejudice towards a party; (2) he served as a lawyer in the matter; (3) he previously practiced with a lawyer involved; (4) has a financial interest in the matter; or (4) a person with whom he or she has a relationship is involved as a lawyer or party in the proceeding.  

In state courts, the rules governing recusal differ but generally are more vague than § 455.  Cannon 3 of the Pennsylvania Code of Judicial Conduct permits judges to recuse themselves in proceedings “in which their impartiality might reasonably be questioned.”  The Cannon goes on to provide examples of instances where recusal would be proper, most of which mirror the circumstances provided in the federal court statute described above.  However, unlike the federal statute that requires recusal, the Pennsylvania rule merely allows for recusal.  As a result, despite the provided examples, the Pennsylvania rule is subject to interpretation and provides a judge with significant latitude when deciding whether he or she should recuse herself.  In Pennsylvania state judges are elected officials.  As a result, attorneys may have campaigned for a judge, donated to a judge’s campaign, or have an established relationship with a judge which arguably could warrant recusal.  Also, in smaller communities, judges are central public figures and frequently interact with the public. 

Judges pride themselves on being impartial and on having the ability to put aside personal biases and prejudices.  Because judges may sua sponte recuse themselves from cases, a recusal motion can be seen as questioning these qualities.  A fundamental principle, right or wrong, is that judges are objective and impartial.  A judge potentially could be offended by a recusal request and/or could attempt to be overly impartial in an attempt to be fair.  Conversely, the judge may be overly sensitive to the subject of the motion and lean in favor of the party that asked for a removal.  While each of these occurrences is uncertain, a recusal request puts litigants in a tough position.