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November 1, 2009
To recuse or not to recuse: How to do it is the real question

By Gary Blankenship
Senior Editor

Imagine this: You are a judge in a case, and one of the parties files a motion to disqualify you.

The reason? The litigant claims you chased him around the courtroom with a baseball bat.

According to Professor Charles Geyh of Indiana University, this actually happened, although not in Florida. But the recusal rules were similar, which gave the judge some sobering choices.

The judge could rule that the motion was on its face sufficient to merit removal and step aside. Or the judge could make the point that the allegation was false. But by addressing the truthfulness of the underlying reason, the judge would be automatically disqualified under the rules.

Such a system “puts judges in this bizarre position,” Geyh said at a special meeting of The Florida Bar’s Judicial Administration and Evaluation Committee.

“Judges have to accept as true all these ridiculous facts, which means the lawyers have an incentive to exaggerate to get the recusal.”

The committee has been looking at Florida’s recusal rules and met with Geyh, an acknowledged expert in the field, via teleconference on October 8. The Judicial Ethics Advisory Committee also attended the meeting. The JAEC and the Rules of Judicial Administration and Education Committee have formed a joint subcommittee to work on the issue.

JAEC members have expressed concerns that it is unfair to ask a judge who is subject to a recusal motion to rule on it, and that it can also create an unfavorable perception by the public. They have also said the system can be abused by judges and can complicate and add expense to litigation.

Geyh said there are two main alternatives to Florida’s system. One — which has been discussed by the committee — is to bring in a second judge to decide the recusal motion. That choice may involve having the initial judge decide the facial sufficiency before referral is made, he said.

The second method is to give the parties the equivalent of a peremptory challenge. That is, Geyh said, they can ask to have a judge replaced without giving a reason, as long as they act soon after the case is assigned. But if they want the second judge replaced, they face a higher standard of showing a presumption of bias by the judge.

“There is very little disqualification litigation after that [the peremptory challenge],” he added.

That system is used in about 20 states, mostly in the West. Interestingly, judges in states without the peremptory challenge don’t like the system because they get no say about being removed and the accompanying appearance of bias. But judges in states that use the system, Geyh said, tell him, “‘We’re ultimately indifferent with the idea that the litigant is uncomfortable with us for whatever reason. They get one shot only, and they don’t need to demean me by making up excuses.’

“You get a new judge and the only way you’re going to get another judge is by the old way of showing presumption of bias.”

Asked which system he preferred, Geyh said he likes the second method. Among the items that have to be addressed are providing substitute judges in sparsely populated areas — which has proved to be a solvable problem — and in criminal cases, for defendants to exercise the challenge when they draw a judge known for severe sentences.

The latter can be addressed by a system like the one used in Wisconsin where the case is reassigned to judges having the least busy dockets — which, in criminal cases, tend to be other tough-sentencing judges, he said.

His second preference, Geyh said, is for a system where the presiding judge reviews the recusal motion for facial sufficiency, then refers it to a second judge who decides the truthfulness of the allegations and the merits. Spurious, insufficient motions are avoided and concerns about the affected judge deciding his or her own recusal is addressed. He said surveys have shown 81 percent of the public thinks judges should not decide their own recusal motions.

The meeting touched on many related issues, including a brief history of judicial qualification.

In traditional English law, the only basis for disqualification was a conflict of interest, based on the premise that “no man should be a judge in his own case,” Geyh said.

Bias was not considered because at the time “there was a presumption of impartiality to the judge that is simply irrebuttable,” he said.

The United States incorporated that standard initially, but in its first hundred years gradually expanded the standard to include cases where the judge had been a lawyer, received a fee, had a relative involved, or had heard the case while sitting on a lower court. Then in the late 1800s, Congress passed a broader law addressing bias and prejudice, incorporated in 28 U.S.C. §144.

But the courts narrowed the interpretation so severely that the law is nearly unusable, Geyh said.

In 1972, the ABA developed the Model Code of Judicial Conduct, which recognized the potential for bias and that judges’ impartiality in some cases could reasonably be questioned.

In 1974, Congress passed 28 U.S.C. §455 based on the code, which is also the basis for most state laws around the country, he said.

In response to a question, Geyh said recusals for appellate judges, particularly state supreme courts, are different than trial court recusals. Supreme courts create the problem of where a disqualification decision can be appealed, he said.

While most recusal cases and disputes arise in the trial courts, those involving appellate judges tend to be much higher profile. He noted the recently decided Caperton v. Massey, a U.S. Supreme Court 5-4 decision. The Court held that a West Virginia Supreme Court justice should have recused himself from a case where the justice cast the deciding vote in favor of a party which spent $3 million in an independent campaign supporting that justice’s election to the court.

That case was not decided under usual disqualification issues, but as a due process matter, Geyh said.

“What the court said is there is a due process dimension here, and it will be violated on a cold day in hell, but it’s dropped below 30 degrees,” he said. He also noted that in that case, the West Virginia justice was in charge of deciding his own recusal, and there was no other state appeal of his decision.

Caperton sends a message to the states: ‘You ought to take this disqualification [issue] seriously,’” he said.

Disputes over judicial disqualification represent a conflict between two viewpoints, Geyh said.

“What we’re looking at is a conflict between the ethos of judging and the ethos of disqualification,” Geyh said. “The ethos of judging assumes the judge is impartial. The rules require judges to be impartial and to act to promote the perception of being impartial, and they must avoid even the appearance of impropriety.

“The ethos of disqualification is this notion . . . judges are people, too; they are subject to the same prejudices as the rest of us. When they say they are talking about the law, they are really talking about their background and their politics.”

JAEC Chair Ivan Reich said Geyh’s presentation was impressive, and he thinks some changes will be recommended for Florida.

In the JAEC deliberations so far, “The one thing you’ve sort of got universal agreement on is no one is happy with the current system,” Reich said.

It’s too early to say what the committee may recommend, but Reich said he’s interested in an approach that combines the peremptory challenge and referring recusal motions to a second judge.

“It basically cleans the cheap shots out. I never thought of it until he explained it that way,” Reich said of the peremptory system.

“The peremptory will weed out a lot, and then you retain some of the old system on checking for the legal sufficiency, and then have another layer [by referring to a second judge] where you basically give the [initial] judge a chance to defend himself.”

[Revised: 02-22-2017]