Recusal
Encyclopedia
Judicial disqualification, also referred to as recusal, refers to the act of abstaining from participation in an official action such as a legal proceeding due to a conflict of interest
of the presiding court official
or administrative officer. Applicable statutes or canons of ethics
may provide standards for recusal in a given proceeding or matter. Providing that the judge or presiding officer must be free from disabling conflicts of interest makes the fairness of the proceedings less likely to be questioned.
, the term "recusal" is used most often with respect to court proceedings. Two sections of Title 28 of the United States Code
(the Judicial Code) provide standards for judicial disqualification or recusal. Section 455, captioned "Disqualification of justice, judge, or magistrate judge
," provides that a federal judge "shall disqualify himself in any proceeding in which his impartiality
might reasonably be questioned." The same section also provides that a judge is disqualified "where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding"; when the judge has previously served as a lawyer or witness concerning the same case or has expressed an opinion concerning its outcome; or when the judge or a member of his or her immediate family has a financial interest in the outcome of the proceeding.
28 U.S.C. sec. 144, captioned "Bias or prejudice of judge," provides that under circumstances, when a party to a case in a United States District Court
files a "timely and sufficient Motion
that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of an adverse party," the case shall be transferred to another judge.
The general rule is that to warrant recusal, a judge's expression of an opinion about the merits of a case or familiarity with the facts or the parties must have originated in a source outside the case itself. This is referred to in the United States as the "extra-judicial source rule" and was recognized as a general presumption, although not an invariable one, in the 1994 U.S. Supreme Court decision in Liteky v. United States.
Often justices or judges will recuse themselves sua sponte
(on their own motion), recognizing that facts leading to their disqualification are present. However, where such facts exist, a party to the case may suggest recusal. Generally, each judge is the arbiter of a motion for the judge's recusal, which is addressed to the judge's conscience and discretion. However, where lower courts are concerned, an erroneous refusal to recuse in a clear case can be reviewed on appeal
or, under extreme circumstances, by a petition for a writ of prohibition.
In the Supreme Court of the United States
, the Justices typically voluntarily recuse themselves from participating in cases in which they have a financial interest. For example, Justice Sandra Day O'Connor
generally did not participate in cases involving telecommunications firms because she owned stock in such firms, while Justice Stephen Breyer
has disqualified himself in some cases involving insurance
companies because of his participation in a Lloyd's of London
syndicate. Justices also have declined to participate in cases in which close relatives, such as their children, are lawyers for one of the parties. On occasion, recusal takes place under more unusual circumstances; for example, in two cases, Chief Justice William H. Rehnquist stepped down from the bench when cases were argued by Arizona attorney James Brosnahan, who had testified against Rehnquist at his confirmation hearing in 1986. Whatever the reason for recusal, the United States
Reports will record that the named Justice "took no part in the consideration or decision of this case."
Historically, standards for recusal in the Supreme Court and lower courts were less rigorous than they have become in more recent years. In the 1803 case of Marbury v. Madison
, Chief Justice John Marshall
participated in the decision and authored the opinion of the Court even though Marshall's actions as Secretary of State
two years prior could be seen as the subject of the proceeding. On the other hand, Marshall did recuse himself in both the 1813 and 1816 hearings of Martin v. Hunter's Lessee
, despite its equally significant constitutional implications, as he and his brother had contracted with Martin to buy the land in dispute. Moreover, during the 19th century, the U.S. federal court system was structured so that an appeal from a judge's decision was often heard by an appellate panel containing the same judge, who was expected to sit in impartial review of his own earlier ruling. This situation is no longer permissible, and 28 U.S.C. sec. 47 provides that "No judge shall hear or determine an appeal from the decision of a case or issue tried by him."
One of the most notable disputes over recusal in U.S. Supreme Court history took place in 1946, when Justice Hugo Black
participated in deciding the Jewell Ridge Coal
case although a former law partner of Black's argued for the prevailing side. The losing party in the 5–4 decision sought reargument on the ground that Black should have been disqualified; Black declined to recuse himself and the decision stood, but Justice Robert H. Jackson
wrote a short opinion suggesting that the decision that Black should sit in the case was Black's alone and the Court did not endorse it. The dispute aggravated infighting between Black and Jackson and it has been suggested that this was one of the reasons that when Chief Justice Harlan Fiske Stone
died, President Harry S. Truman
appointed Fred M. Vinson
to succeed Stone rather than promote a sitting Associate Justice to Chief Justice.
In 1973, then-Associate Justice Rehnquist wrote a lengthy in-chambers opinion declining to recuse himself in Laird v. Tatum
, a case challenging the validity of certain arrests, even though Rehnquist had previously served as a White House
lawyer who had opined that the arrest program was valid. In 2004, Justice Antonin Scalia
declined to recuse himself in a case to which Vice President
Dick Cheney
was a party in his official capacity, despite the contention of several environmental
groups that Scalia's participation created an appearance of impropriety in view of the fact that Scalia had recently participated in a widely publicized hunting
trip with the Vice President. The same year, however, Scalia recused himself in Elk Grove Unified School District v. Newdow
, a First Amendment
case challenging inclusion of the words "under God" in the Pledge of Allegiance
, after giving a public speech in which Scalia stated his view that Newdow's claims were meritless.
In certain special situations, circumstances that would otherwise call for recusal of a judge or group of judges may be disregarded, when otherwise no judge would be available to hear the case. For example, if a case concerns a salary increase payable to a judge, that judge would ordinarily be disqualified from hearing the case. However, if the pay raise is applicable to all the judges in the entire court system, the judge will keep the case, because the grounds for recusal would be equally applicable to any other judge. The principle that a judge will not be disqualified when the effect would be that no judge could hear the case is sometimes referred to as the "rule of necessity".
Outside the judicial system, the concept of recusal is also applied in administrative agencies. When a member of a multi-member administrative body is recused, the remaining members typically determine the outcome. When the sole occupant of an official position is recused, the matter may be delegated to the official's deputy or to a temporarily designated official; for example, when the Solicitor General of the United States is recused from a case, the Deputy Solicitor General will handle the matter in his place.
Concepts analogous to recusal also exist in the legislative branch. The rules of the United States Senate
and House of Representatives
provide that a Member should not vote on a measure as to which he or she has a personal financial interest. In such cases, the Senator or Representative may record a vote of "Present" instead of Yea or Nay.
. If a judge does not recuse themselves when they should have known to do so, they may be subject to sanctions, which vary by jurisdiction. Depending on the jurisdiction, if an appellate court finds a judgment to have been made when the judge in question should have been recused, it may set aside the judgment and return the case for retrial.
If a judge fails to recuse themselves sua sponte and a party believes the judge has a bias the party may motion for substitution
. In some jurisdictions litigants may have the right to substitute a judge, even if no bias is demonstrated.
Conflict of interest
A conflict of interest occurs when an individual or organization is involved in multiple interests, one of which could possibly corrupt the motivation for an act in the other....
of the presiding court official
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
or administrative officer. Applicable statutes or canons of ethics
Ethics
Ethics, also known as moral philosophy, is a branch of philosophy that addresses questions about morality—that is, concepts such as good and evil, right and wrong, virtue and vice, justice and crime, etc.Major branches of ethics include:...
may provide standards for recusal in a given proceeding or matter. Providing that the judge or presiding officer must be free from disabling conflicts of interest makes the fairness of the proceedings less likely to be questioned.
Recusal in the United States
In the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, the term "recusal" is used most often with respect to court proceedings. Two sections of Title 28 of the United States Code
Title 28 of the United States Code
Title 28 is the portion of the United States Code that governs the federal judicial system.It is divided into six parts:* Part I: Organization of Courts* Part II: Department of Justice...
(the Judicial Code) provide standards for judicial disqualification or recusal. Section 455, captioned "Disqualification of justice, judge, or magistrate judge
United States magistrate judge
In the United States federal courts, magistrate judges are appointed to assist United States district court judges in the performance of their duties...
," provides that a federal judge "shall disqualify himself in any proceeding in which his impartiality
Impartiality
Impartiality is a principle of justice holding that decisions should be based on objective criteria, rather than on the basis of bias, prejudice, or preferring the benefit to one person over another for improper reasons.-Philosophical concepts of impartiality:According to Bernard Gert, "A is...
might reasonably be questioned." The same section also provides that a judge is disqualified "where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding"; when the judge has previously served as a lawyer or witness concerning the same case or has expressed an opinion concerning its outcome; or when the judge or a member of his or her immediate family has a financial interest in the outcome of the proceeding.
28 U.S.C. sec. 144, captioned "Bias or prejudice of judge," provides that under circumstances, when a party to a case in a United States District Court
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
files a "timely and sufficient Motion
Motion (legal)
In law, a motion is a procedural device to bring a limited, contested issue before a court for decision. A motion may be thought of as a request to the judge to make a decision about the case. Motions may be made at any point in administrative, criminal or civil proceedings, although that right is...
that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of an adverse party," the case shall be transferred to another judge.
The general rule is that to warrant recusal, a judge's expression of an opinion about the merits of a case or familiarity with the facts or the parties must have originated in a source outside the case itself. This is referred to in the United States as the "extra-judicial source rule" and was recognized as a general presumption, although not an invariable one, in the 1994 U.S. Supreme Court decision in Liteky v. United States.
Often justices or judges will recuse themselves sua sponte
Sua sponte
In law, sua sponte describes an act of authority taken without formal prompting from another party. The term is usually applied to actions by a judge taken without a prior motion or request from the parties...
(on their own motion), recognizing that facts leading to their disqualification are present. However, where such facts exist, a party to the case may suggest recusal. Generally, each judge is the arbiter of a motion for the judge's recusal, which is addressed to the judge's conscience and discretion. However, where lower courts are concerned, an erroneous refusal to recuse in a clear case can be reviewed on appeal
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
or, under extreme circumstances, by a petition for a writ of prohibition.
In the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
, the Justices typically voluntarily recuse themselves from participating in cases in which they have a financial interest. For example, Justice Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
generally did not participate in cases involving telecommunications firms because she owned stock in such firms, while Justice Stephen Breyer
Stephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
has disqualified himself in some cases involving insurance
Insurance
In law and economics, insurance is a form of risk management primarily used to hedge against the risk of a contingent, uncertain loss. Insurance is defined as the equitable transfer of the risk of a loss, from one entity to another, in exchange for payment. An insurer is a company selling the...
companies because of his participation in a Lloyd's of London
Lloyd's of London
Lloyd's, also known as Lloyd's of London, is a British insurance and reinsurance market. It serves as a partially mutualised marketplace where multiple financial backers, underwriters, or members, whether individuals or corporations, come together to pool and spread risk...
syndicate. Justices also have declined to participate in cases in which close relatives, such as their children, are lawyers for one of the parties. On occasion, recusal takes place under more unusual circumstances; for example, in two cases, Chief Justice William H. Rehnquist stepped down from the bench when cases were argued by Arizona attorney James Brosnahan, who had testified against Rehnquist at his confirmation hearing in 1986. Whatever the reason for recusal, the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
Reports will record that the named Justice "took no part in the consideration or decision of this case."
Historically, standards for recusal in the Supreme Court and lower courts were less rigorous than they have become in more recent years. In the 1803 case of Marbury v. Madison
Marbury v. Madison
Marbury v. Madison, is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring...
, Chief Justice John Marshall
John Marshall
John Marshall was the Chief Justice of the United States whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches...
participated in the decision and authored the opinion of the Court even though Marshall's actions as Secretary of State
United States Secretary of State
The United States Secretary of State is the head of the United States Department of State, concerned with foreign affairs. The Secretary is a member of the Cabinet and the highest-ranking cabinet secretary both in line of succession and order of precedence...
two years prior could be seen as the subject of the proceeding. On the other hand, Marshall did recuse himself in both the 1813 and 1816 hearings of Martin v. Hunter's Lessee
Martin v. Hunter's Lessee
Martin v. Hunter's Lessee, , was a landmark United States Supreme Court case decided on March 20, 1816. It was the first case to assert ultimate Supreme Court authority over state courts in matters of federal law.-Background:...
, despite its equally significant constitutional implications, as he and his brother had contracted with Martin to buy the land in dispute. Moreover, during the 19th century, the U.S. federal court system was structured so that an appeal from a judge's decision was often heard by an appellate panel containing the same judge, who was expected to sit in impartial review of his own earlier ruling. This situation is no longer permissible, and 28 U.S.C. sec. 47 provides that "No judge shall hear or determine an appeal from the decision of a case or issue tried by him."
One of the most notable disputes over recusal in U.S. Supreme Court history took place in 1946, when Justice Hugo Black
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...
participated in deciding the Jewell Ridge Coal
Jewell Ridge Coal Corp. v. Mine Workers
Jewell Ridge Coal Corp. v. United Mine Workers of America, 325 U.S. 161 was a case decided by the Supreme Court of the United States dealing with the compensation of mine workers for time spent traveling to work sites while underground....
case although a former law partner of Black's argued for the prevailing side. The losing party in the 5–4 decision sought reargument on the ground that Black should have been disqualified; Black declined to recuse himself and the decision stood, but Justice Robert H. Jackson
Robert H. Jackson
Robert Houghwout Jackson was United States Attorney General and an Associate Justice of the United States Supreme Court . He was also the chief United States prosecutor at the Nuremberg Trials...
wrote a short opinion suggesting that the decision that Black should sit in the case was Black's alone and the Court did not endorse it. The dispute aggravated infighting between Black and Jackson and it has been suggested that this was one of the reasons that when Chief Justice Harlan Fiske Stone
Harlan Fiske Stone
Harlan Fiske Stone was an American lawyer and jurist. A native of New Hampshire, he served as the dean of Columbia Law School, his alma mater, in the early 20th century. As a member of the Republican Party, he was appointed as the 52nd Attorney General of the United States before becoming an...
died, President Harry S. Truman
Harry S. Truman
Harry S. Truman was the 33rd President of the United States . As President Franklin D. Roosevelt's third vice president and the 34th Vice President of the United States , he succeeded to the presidency on April 12, 1945, when President Roosevelt died less than three months after beginning his...
appointed Fred M. Vinson
Fred M. Vinson
Frederick Moore Vinson served the United States in all three branches of government and was the most prominent member of the Vinson political family. In the legislative branch, he was an elected member of the United States House of Representatives from Louisa, Kentucky, for twelve years...
to succeed Stone rather than promote a sitting Associate Justice to Chief Justice.
In 1973, then-Associate Justice Rehnquist wrote a lengthy in-chambers opinion declining to recuse himself in Laird v. Tatum
Laird v. Tatum
Laird v. Tatum, 408 U.S. 1 was a case in which the United States Supreme Court dismissed for lack of ripeness a claim in which the plaintiff accused the U.S...
, a case challenging the validity of certain arrests, even though Rehnquist had previously served as a White House
White House
The White House is the official residence and principal workplace of the president of the United States. Located at 1600 Pennsylvania Avenue NW in Washington, D.C., the house was designed by Irish-born James Hoban, and built between 1792 and 1800 of white-painted Aquia sandstone in the Neoclassical...
lawyer who had opined that the arrest program was valid. In 2004, Justice Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
declined to recuse himself in a case to which Vice President
Vice President of the United States
The Vice President of the United States is the holder of a public office created by the United States Constitution. The Vice President, together with the President of the United States, is indirectly elected by the people, through the Electoral College, to a four-year term...
Dick Cheney
Dick Cheney
Richard Bruce "Dick" Cheney served as the 46th Vice President of the United States , under George W. Bush....
was a party in his official capacity, despite the contention of several environmental
Environmentalism
Environmentalism is a broad philosophy, ideology and social movement regarding concerns for environmental conservation and improvement of the health of the environment, particularly as the measure for this health seeks to incorporate the concerns of non-human elements...
groups that Scalia's participation created an appearance of impropriety in view of the fact that Scalia had recently participated in a widely publicized hunting
Hunting
Hunting is the practice of pursuing any living thing, usually wildlife, for food, recreation, or trade. In present-day use, the term refers to lawful hunting, as distinguished from poaching, which is the killing, trapping or capture of the hunted species contrary to applicable law...
trip with the Vice President. The same year, however, Scalia recused himself in Elk Grove Unified School District v. Newdow
Elk Grove Unified School District v. Newdow
Newdow v. United States Congress, Elk Grove Unified School District, et al., 542 U.S. 1 , was a lawsuit originally filed in 2000 which led to a 2002 ruling by the United States Court of Appeals for the Ninth Circuit that the words "under God" in the Pledge of Allegiance are an endorsement of...
, a First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
case challenging inclusion of the words "under God" in the Pledge of Allegiance
Pledge of Allegiance
The Pledge of Allegiance of the United States is an expression of loyalty to the federal flag and the republic of the United States of America, originally composed by Christian Socialist Francis Bellamy in 1892 and formally adopted by Congress as the pledge in 1942...
, after giving a public speech in which Scalia stated his view that Newdow's claims were meritless.
In certain special situations, circumstances that would otherwise call for recusal of a judge or group of judges may be disregarded, when otherwise no judge would be available to hear the case. For example, if a case concerns a salary increase payable to a judge, that judge would ordinarily be disqualified from hearing the case. However, if the pay raise is applicable to all the judges in the entire court system, the judge will keep the case, because the grounds for recusal would be equally applicable to any other judge. The principle that a judge will not be disqualified when the effect would be that no judge could hear the case is sometimes referred to as the "rule of necessity".
Outside the judicial system, the concept of recusal is also applied in administrative agencies. When a member of a multi-member administrative body is recused, the remaining members typically determine the outcome. When the sole occupant of an official position is recused, the matter may be delegated to the official's deputy or to a temporarily designated official; for example, when the Solicitor General of the United States is recused from a case, the Deputy Solicitor General will handle the matter in his place.
Concepts analogous to recusal also exist in the legislative branch. The rules of the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
and House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
provide that a Member should not vote on a measure as to which he or she has a personal financial interest. In such cases, the Senator or Representative may record a vote of "Present" instead of Yea or Nay.
Applicable to most countries
Laws or court rules provide for recusal of judges. Although the details vary, the following are nearly universal grounds for recusal.- The judge is related to a party, attorney, or spouse of either party (usually) within three degrees of kinship.
- The judge is a party.
- The judge is a material witnessWitnessA witness is someone who has firsthand knowledge about an event, or in the criminal justice systems usually a crime, through his or her senses and can help certify important considerations about the crime or event. A witness who has seen the event first hand is known as an eyewitness...
unless pleading purporting to make the Judge a party is false (determined by presiding judge, but see Substitution (law)Substitution (law)In legal terms, the Right of Substitution is a statutory right of all parties except the State. It is the right to change the presiding court official with or without cause....
). - The judge has previously acted in the case in question as an attorney for a party, or participated in some other capacity.
- The judge prepared any legal instrument (such as a contractContractA contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
or willWill (law)A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
) whose validity or construction is at issue. - AppellateAppealAn appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
judge previously handled case as a trial judgeTrial courtA trial court or court of first instance is a court in which trials take place. Such courts are said to have original jurisdiction.- In the United States :...
. - The judge has personal or financial interest in the outcome. This particular ground varies by jurisdiction. Some require recusal if there is any interest at all in the outcome, while others only require recusal if there is interest beyond a certain value.
- The judge determines he or she cannot act impartially.
Responsibility and consequences
A judge who has grounds to recuse himself is expected to do so. If a judge does not know that grounds exist to recuse themselves (but does) the error is harmlessHarmless error
A harmless error is a ruling by a trial judge that, although mistaken, does not meet the burden for a losing party to reverse the original decision of the trier of fact on appeal, or to warrant a new trial. Harmless error is easiest to understand in an evidentiary context...
. If a judge does not recuse themselves when they should have known to do so, they may be subject to sanctions, which vary by jurisdiction. Depending on the jurisdiction, if an appellate court finds a judgment to have been made when the judge in question should have been recused, it may set aside the judgment and return the case for retrial.
Waiver and substitution
The recusal rule may be avoided or ignored if all parties and the judge agree, although in practice this rarely occurs. If recusal is avoided in this manner, a full and complete record of the facts that qualify as grounds, above, must be made for the appellate court.If a judge fails to recuse themselves sua sponte and a party believes the judge has a bias the party may motion for substitution
Substitution (law)
In legal terms, the Right of Substitution is a statutory right of all parties except the State. It is the right to change the presiding court official with or without cause....
. In some jurisdictions litigants may have the right to substitute a judge, even if no bias is demonstrated.
See also
- Civil rightsCivil rightsCivil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
- Substitution (law)Substitution (law)In legal terms, the Right of Substitution is a statutory right of all parties except the State. It is the right to change the presiding court official with or without cause....
- R. v Sussex Justices, Ex parte McCarthy
- R v Bow Street Metropolitan Stipendiary Magistrate Ex parte Pinochet Ugarte (No.2)
External links
- Decision of Judge Ware denying motion for recusal in Perry v. SchwarzeneggerPerry v. SchwarzeneggerPerry v. Schwarzenegger is a federal lawsuit filed in the United States District Court for the Northern District of California challenging the federal constitutionality of Proposition 8, a 2008 ballot initiative that amended the California Constitution to restrict marriage to opposite-sex couples,...