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January 15, 2010
Panel studies rules governing judicial recusal

By Gary Blankenship
Senior Editor
A special Bar subcommittee is moving ahead with an examination of possible amendments to the rules governing the disqualification of judges.

The panel, a joint effort by the Judicial Administration and Evaluation and the Rules of Judicial Administration committees, met by teleconference on December 7. When the meeting concluded, the subcommittee had agreed to look at both procedural and substantive issues related to Rule of Judicial Administration 2.330, which covers recusals.

Ninth Circuit Judge John Kest will lead the procedural review and West Palm Beach attorney Tom Warner will head the substantive review.

“I think what we’ve been tasked to do is look at this thing and seek to articulate any changes that we think might improve it. And if there are any, then put that up to the committees for their considerations,” First Circuit Judge Mike Jones said. “There are two areas we know there is dissatisfaction, and that is the inaccurate, untruthful allegations made [against judges] by folks who don’t ever seem to get called on it. The other is the abuse of the [disqualification] motion for tactical advantage by lawyers.”

Committee members noted they had input from 21 judges around the state who responded to the subcommittee’s requests for comments. Most were critical of the existing rule with many noting it encourages unsubstantiated charges against judges. Some were also skeptical of a proposal made to the JAEC that is used in other states, where each party gets a peremptory challenge to the sitting judge.

Committee members had differing views about the rules and what changes might be needed, although most said their views are irreversibly fixed.

Eighteenth Circuit Judge Lisa Davidson, chair of the Rules of Judicial Administration Committee, said she thought the current rule works fairly well, although it might need to require more specificity in detailing the grounds or reasons for disqualifying a judge. She also said there may be a problem with attorneys not being punished for abusing the rule, but that’s a matter for the Bar, not a change in the rule.

“The rule itself, except for a lack of specificity about what should be in the motion, works,” Davidson said.

Kest noted, “The common thread [in the responses from the judges] was the frustration that the judges could not respond to any of the negative allegations in the court files. . . . Any type of remedy is going to have to take that into account.”

He and Judge Davidson noted the crux of the difficulty is if a judge contests the allegations in a recusal motion, then the judge has switched from an adjudicator between the parties to an adversary with the party seeking disqualification.

West Palm Beach attorney Gerald Richman said he has reservations about the automatic peremptory challenge. Indiana University Professor Charles Geyh, an expert on recusal matters, told the JAEC at an October meeting that many states have found that to be a workable system.

“I am not in favor at all of peremptory strikes; I think that is a real problem for us,” he said. “I favor some kind of independent review [of allegations made against a judge], and we need to talk about the procedure and mechanism to get there, and I do favor something more specific that the very general grounds [for recusal] that we have now.”

But Warner said the peremptory system is intriguing.

“I am not sold on that either but I am impressed that Professor Geyh says so many states have gone to that to eliminate these other problems,” he said. “I’m not advocating it either, but it is a topic that should be included in the discussion. It is an alternative to all of the other solutions.”

The discussion at the subcommittee reflected many of the views expressed by judges who wrote to the panel. They generally aren’t pleased with the state’s recusal rules, but they also are leery of peremptory recusals.

Many expressed concerns about the current rule, which requires judges to accept as factual any allegation made in a recusal motion, and then grant the motion if that is facially sufficient.

“My frustration with the rule lies not in the rule itself, but with the supporting case law that prohibits a judge from responding to false, frivolous or even scandalous allegations in a motion even when the motion itself is legally sufficient and must be granted,” 15th Circuit Chief Judge Peter Blanc wrote to the committee.

“[S]omething needs to be done to protect us against out and out lies filed for the sole purpose of obtaining a new judge,” 11th Circuit Judge Ronald M. Friedman opined.

A few judges said they doubted any change would improve matters.

“Although I have experienced lawyers and pro se litigants misrepresenting the record, little is to be gained by fighting with them, often only for the sake of pride at the end of the day,” 13th Circuit Judge Paul Huey wrote. “The old saying, ‘You may be able to whip a skunk, but is it worth the fight?’ comes to mind.”

There appeared to be widespread reservations for the peremptory challenge system, used by some other states.

Eighth Circuit Judge David A. Glant emphatically opposed that system in his letter to the subcommittee. A major problem, he said, would be finding fill-in judges in rural counties where frequently there is only one circuit court judge hearing cases.

“The remedy of disqualification should only arise where there is a legitimate concern that a defendant cannot receive a fair trail based upon objective, articulated facts,” Glant said. “Allowing an automatic peremptory strike of any judge merely upon request without a legal basis institutionalized legitimizes forum shopping by granting an automatic change of judges.”

First District Court of Appeal Judge Philip J. Padovano, who is a former circuit judge, wrote an extensive letter criticizing the current rule. He said it is unfair because the rule gives one party the ability to affect the case without any input from the opposing side and can give an advantage to unscrupulous practitioners.

“[T]he rule is often used as a tactical device by those who are willing to manipulate the judicial process,” Padovano said. “For this reason, I think the rule unwittingly creates an unfair advantage to the least deserving lawyers.”

Sanctions for misusing the rule are ineffective; the system encourages judges to grant motions even when they are facially insufficient, and the rule “facilitates the defamation of judges,” he argued. “A judge is not permitted to contest the allegations of fact when denying a motion for disqualification. Many judges . . . also believe that it is ethically improper to contest the allegations of the motion even if the motion is granted.”

The automatic peremptory system would be an improvement from the current rule, but is still a bad idea, Padovano argued.

“One of the most troubling effects of the ‘one bump’ procedure is that it would take out judicial system directly and unapologetically into an era of judge shopping. . . .,” he said. “Lawyers would be able to use the disqualification rule to work their way toward a judge who is perceived to be more defense oriented in a civil case, or a judge who is thought to be tougher on crime in a criminal case, or more likely to sympathize with the wife in a family law matter.”

The best system, he added, would be to require proof of an allegation after a motion if found facially sufficient.

Nineteenth Circuit Judge Larry Schack submitted almost 90 pages to transcripts to illustrate problems he’s had with recusal motions.

In one case, after an attorney filed numerous “fraudulent” recusal motions, Schack said he sent the issue to the Bar and a grievance committee found probable cause. But before the case went to a referee, “I received a call from counsel for the Bar to advise me that although he was pursuing suspension, he had been told by supervisors within the Bar to offer the attorney a deferred prosecution agreement, which the attorney agreed to. As a result, despite the egregious conduct, the attorney to this day retains the status of good standing,” he said.

Schack said he referred another case to the Bar when an attorney filed false disqualification motion, but it was dismissed .

He added, “It is extremely unlikely I will ever again file a grievance with the Bar. The time consumption is enormous; the bad blood it creates is terrible; and the outcome is meaningless.”

Schack also noted another case where an attorney filed preliminary papers to run against a sitting judge before whom the attorney had a case, causing a recusal.. “The attorney never actually ran for the position,” he noted. “The action was taken solely to create the disqualification.”

Other comments received by the subcommittee include:

• Noting that the subject judge cannot comment on allegations in a recusal motion, 10th Circuit Judge Olin W. Shinsholser recommended that “consideration should be given to requiring the motions to be filed with the administrative judge or chief judge and requiring the proponent to prove the accusations which they often cannot do. By removing consideration from the subject judge, this would eliminate the risk of the subject judge becoming defensive or an adversary.”

• Eighth Circuit Judge Frederick Smith thought the subject judge should be able to comment. “When ruling on the facial sufficiency of a first disqualification motion, a judge should be able to admit or deny the accuracy of the allegations. . . . [I]t is unfair to the judge, and damaging to a judge’s reputation, that false allegations must be made a part of the public record without any opportunity to deny false allegations,” he said.

• 18th Circuit Judge Clayton D. Simmons agreed, “Occasionally the allegations in the motion to disqualify are blatantly untrue. The current rule does not allow the judge to address the truth of the allegations. That invites abuse of the rule in my opinion.”

• Ninth Circuit Judge Bob LeBlanc had a different view. “Honestly, the few times I have been asked to disqualify myself, I did so without a second thought. If any party feels even a slight notion of impartiality, who am I to challenge that?” he wrote. “Of course, the first time it happened I was insulted . . . but I got over it fairly quickly.”

• 14th Circuit Judge James B. Fensom said he’s seen abuse of the recusal rule, both as a practicing lawyer and on the bench. “If a judge had an attitude of, ‘Well, if they don’t want me on the case, I’ll be off,’ then the current rule is an invitation for the motion to disqualify the trial judge. In short, this results in judge shopping,” he said. Fensom recommended that after the subject judge determines a motion is facially sufficient, it be referred to a separate judge, who would be empowered to rule on the truth of the motion’s allegations.

The subcommittee is set to meet again later this month at the Bar’s Midyear Meeting.

[Revised: 02-03-2017]