Judicial disqualification

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Look up recusal in Wiktionary, the free dictionary.

Judicial disqualification, also referred to as recusal, is the act of abstaining from participation in an official action such as a

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 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 opinions 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. Section 144, captioned "Bias or prejudice of judge", provides that under circumstances, when a party to a case in a

At times 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 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".^[1]

Relevant incidents in the US

On Sep 28th 2021, the Wall Street Journal's investigative team found that 131 judges did not recuse themselves in cases where they had a financial interest through ownership of stocks in the relevant parties. 2/3 of cases ended with a verdict favorable to the party in which the judge owned stock. Explanations given for the lapse included: unknown ownership via brokers investing on behalf of judge, unaware of the laws regarding proper disclosure and recusal, spelling errors and ownership of subsidiaries (e.g. Exxon Corp. vs Exxon Oil which is a subsidiary), ownership of stocks held not by the judge but by close family members (spouses, children, etc), and finally insistence that stock ownership did not influence their decisions especially if the outcome did not change stock price. All of these explanations are still a violation of federal law.^[2]

Supreme Court cases

In the

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. § 47 provides that "No judge shall hear or determine an appeal from the decision of a case or issue tried by him."

A notable dispute over recusal in U.S. Supreme Court history took place in 1946, when Justice

Concepts analogous to recusal also exist in the legislative branch. Members with a personal financial interest in a measure should not vote according to the rules of the United States Senate and House of Representatives. In such cases, the Senator or Representative may record a vote of "present" rather than "yea" or "nay".

Applicable to most countries

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Laws or court rules provide the 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 witness unless pleading purporting to make the Judge a party is false (determined by presiding judge, but see substitution).
• 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
  will
  ) whose validity or construction is at issue.
• Appellate judge previously handled case as a trial judge or at a lower appellate level.
• 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 themself is expected to do so. If a judge does not know that grounds exist to recuse themselves 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

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