Judicial disqualification

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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.

Recusal in the United States[edit]

In the United States, the term "recusal" is used most often with respect to court proceedings. Two sections of Title 28 of the United States Code (the Judicial Code) 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 his 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 recuse themselves from participating in cases in which they have financial interests. For example, Justice Sandra Day O'Connor generally did not participate in cases involving telecommunications firms because she owned stock in these firms, whereas 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 occurs 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 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 and opined that the arrest program was valid.[1] In 2004, Justice Antonin Scalia wrote an opinion declining 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 because Scalia had recently participated in a widely publicized hunting trip with the Vice President.[2] The same year, however, Scalia recused himself without explanation 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 increase is applicable to all of the judges in the 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".[3]

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 or her 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" rather than "yea" or "nay".

Recusal on the FISA Court[edit]

A hearing for the Foreign Intelligence Surveillance Act (FISA) may be an exception to judicial disqualification due to conflict of interest. Potential FISA-court judges must be vetted by and may be under surveillance by the security agencies that they will monitor.

Many may have family, friends, and former business associates who have career or financial interests in private firms and government agencies that directly benefit from their decisions and from increased surveillance. It is also potentially possible that the constant surveillance of these judges, their families, friends, and former business associates may make the judges in their decisions susceptible to a form of blackmail or self censorship. It is also unclear who can remove a FISA-court judge and for what criteria. This leads to a potential conflict of interest which may distort the court's decisions. It is unclear whether any FISA-courtjudges have ever recused themselves.

Nevertheless, similar arguments might apply to committee senators and congresspersons, who also are responsible for monitoring the agencies who vet them; the private contractors who provide employment to them; and their families, friends, and former business associates before and after their tenure, who similarly monitor their staff, family and friends.

Applicable to most countries[edit]

Laws or court rules provide the recusal of judges. Although the details vary, the following are nearly universal grounds for recusal.

Responsibility and consequences[edit]

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 harmless. 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[edit]

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. In some jurisdictions litigants may have the right to substitute a judge, even if no bias is demonstrated.

See also[edit]



  1. ^ Laird v. Tatum, 408 U.S. 824 (1972) (Rehnquist, J., in chambers).
  2. ^ Cheney v. United States District Court, 541 U.S. 913 (2004) (Scalia, J., in chambers).
  3. ^ See United States v. Will, 449 U.S. 200 (1980).

External links[edit]

AJH Lawyers Pty Ltd v Careri and Others (2013) 34 VR 236

Further reading[edit]