Recusal – Judge Impartiality and Disqualification

By Hayes Hunt

balance.jpgRecently, 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.  

judge.jpgIn 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. 

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One comment on “Recusal – Judge Impartiality and Disqualification
  1. Beth O. Hessler says:

    I’m hoping that my question will be addressed even though I’m only a private citizen who is having to go into court in Berks Co.,pro se. Not by choice but entirely by circumstances.

    The case itself is glaringly unfair in the eyes of everyone who learns the details. There is an overabundance of proof of my claims, and yet none of it has ever been presented to the court. If the case continues to be ruled on the way it has been, my very survival is in doubt.

    A judge who has previously made a ruling in the case, has been assigned to hear an exceptions to a recommendation by a hearing officer. Not only had this Judge’s ruling been over the top biased toward the other party, but the other party in the case posted a statement, out of the thin air, that he had “PAID OFF THE JUDGE” on his facebook page for everyone to see. I brought this to the attention of the court administration and basically all they said was “What if he was just kidding?”. But I say, “What if he was not kidding?”. Knowing how the case has gone up to this time, this judge SHOULD recuse herself since there is the very clear partiality in her dealings with my case.

    She stated in the very ruling she handed down, that her Master’s recommendation had been inconsistent. So, instead of making a point of holding the eye of each party in the case, and questioning them personally, to ascertain and determine their veracity, she decided to pick and chose which things in the Master’s recommendation to use, and which to throw out, all of this without having spoken one word to the plaintiff or defendant herself, and completely ignoring major points made by the Master, affecting the fairness of any ruling on the case.

    I need to find a form to request a substitute Judge in this case. There is obviously enough bias to make it APPEAR that the Judge is prejudiced toward the other side. I want the case heard by someone who is new to the case. I have reason to believe the other side my be going in pro se at this point which would level the playing field considerably, and someone new to the case could decide it based on testimony of the two parties, rather than having one party be at a disadvantage to the other by not having trained legal representation.

    I have no desire to harm this Judge, even though her ruling has left me very seriously in harm’s way, but I do want to have her leave the case to someone new. Could someone please tell me what forms to get and where to get them? I’m having no luck getting any information on my own so far.

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About the Editor
Hayes Hunt concentrates his practice in the representation of individuals, corporations and executives in a wide variety of federal and state criminal law and regulatory enforcement matters as well as complex civil litigation. Hayes is a partner in the firm's Commercial Litigation Department as well as its Criminal Defense and Governmental Investigations Group.
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