Center for Continuing Education








Introduction to Judicial Disqualification

Self Study Article & Self Assessment Test

presented by Richard E. Flamm, Esq.

Instructions | Read the Article Pt. 1 - Pt. 2 | Take the Test


PART I -- INTRODUCTORY MATERIALS

CHAPTER ONE: INTRODUCTION

§1.1 Definitions
§1.2 History of Judicial Disqualification

   §1.2.1 Ancient Principles
   §1.2.2 Judicial Disqualification At Common Law
   §1.2.3 The Pecuniary Interest Proscription
   §1.2.4 The "Rule Of Necessity"

§1.3 Modern British View of Permissible Grounds for Disqualification
§1.4 Evolution Of The Judicial Disqualification Right In America
§1.5 Modern American Judicial Disqualification Practice
§1.6 The Nature of the Modern American Judicial Disqualification Right
§1.7 The Concept of Judicial Impartiality
§1.8 Strategic Use Of Judicial Disqualification Motions
§1.9 Attorney Disqualification Compared
§1.10 Whether A Disqualification Motion Should Be Made

   §1.10.1 Introduction
   §1.10.2 Counsel's Duty Of Reasonable Inquiry
   §1.10.3 The Availability Of Sanctions
   §1.10.4 The Standard For Determining Whether Sanctions Should Be Imposed
   §1.10.5 Possible Judicial Retribution for Filing A Disqualification Motion

§1.1 Definitions

Technically, there is a distinction between "recusal" and "disqualification". Whereas "recusal" has traditionally been used to refer to a judge's decision to stand down voluntarily, the term "disqualification"--in its most strict sense--has typically been reserved for situations which involve the statutorily or constitutionally mandated removal of a judge, upon the request of a moving party.

While this is so, however--and while some courts continue to remark upon perceived differences between recusal and disqualification,--sometimes employing the words erroneously, it is generally agreed that whatever distinctions may exist between these terms are of little practical significance today. This is so, in part, because, in modern American practice, "disqualification" is mandated in virtually all instances in which "recusal" would be appropriate.

In addition, in many jurisdictions the term "disqualification" has been defined in such a way as to include both removal at the request of a party and removal by a judge on his own motion. In fact, in modern practice, the terms "disqualification" and "recusal" are frequently viewed as being synonymous, and used interchangeably.

§1.2 History of Judicial Disqualification

§1.2.1 Ancient Principles

The principle that judges should be fair and impartial is as old as the history of courts, and edicts designed to assure judicial impartiality have been recorded since ancient times. Under early Jewish law, for example, a judge was not to participate in any case in which a litigant was his friend, a kinsman, or someone whom he personally disliked.

Similarly, pursuant to the Roman Code of Justinian, a party who believed that a judge was "under suspicion" was permitted to "recuse" him, as long as he did so before issue was joined. This expansive power on the part of early litigants to effect a judge's "recusal" formed the basis for the broad disqualification statutes which generally still prevail in civil-law countries.

§1.2.2 Judicial Disqualification At Common Law

The original common law rule of judicial disqualification was set out by Bracton, who--like the early Roman scholars--believed that a litigant should be permitted to disqualify a judge on the basis of a mere "suspicion" of bias. According to Bracton, such a suspicion could arise from a variety of causes, including relationship between the judge and a party, or the fact that the judge had acted for a party as his counselor in the cause before him.

Bracton ultimately proved unsuccessful, however, in his attempt to incorporate into English jurisprudence his view that a party's mere "suspicion" of bias constituted a legitimate basis for judicial disqualification. Blackstone, for one, rejected absolutely the possibility that a judge might be disqualified for bias, as distinguished from interest.

This non-presumption of bias by the early English courts extended even to cases involving familial relationships between judges and parties. As to such matters, early English courts--influenced by Lord Coke--held that, even though a juror might be disqualified by familial relationship to a party before him, a judge was not.

Thus, in marked contrast to the civil law system of "recusation"--which allowed for disqualification of a judge on numerous grounds of "suspicion,"--at common law the concept of what constituted legitimate grounds for seeking judicial disqualification was exceedingly clear and simple: a judge would be disqualified for possessing a direct financial interest in the cause before him, and for nothing else.

§1.2.3 The Pecuniary Interest Proscription

While it was accepted--at common law--that judges could be disqualified from presiding over those proceedings in which they possessed a direct pecuniary interest, defining precisely what constituted such an interest was not without complication. Lord Coke--with reference to cases in which the judge's own pocketbook was involved--set the standard for his time with his admonition that "no man shall be a judge in his own case";--an edict which subsequently became one of the guiding precepts of Anglo-American jurisprudence.

Early English construction of this precept lead to the disqualification of a physicians' review board which had retained the fines it was empowered to levy; the "laying by the heels" of the Mayor of Hereford because he had presided over the ejectment of one of his own tenants; the quashing of a court order because one of the judges named in the "stile of [the] Court" also occupied the office which was the subject of the matter before the court; and the overturning of a court action in which the decision benefited the community where two of the sitting judges resided.

§1.2.4 The "Rule Of Necessity"

At common law, even direct pecuniary interest would not ineluctably lead to disqualification. This was so because it was generally recognized that, on occasion, when no other judge was available, necessity would compel an interested judge to sit. This situation gave birth to what has come to be known as the "Rule of Necessity;" the earliest recorded invocation of which came in 1430, when it was held that, where there was no provision for the appointment of a substitute judge, the Chancellor of Oxford could preside over a case--even though he was a party to it.

§1.3 Modern British View of Permissible Grounds for Disqualification

Under early English common law a judge could be disqualified only in circumstances in which the party seeking such relief could demonstrate that the judge possessed a disqualifying pecuniary interest in the proceeding pending before him--and then only when another judge was available to hear the case.

In the Nineteenth Century, however, the British attitude towards judicial disqualification began to grow more flexible. English courts initially acted slowly, by expanding the available grounds for disqualification to include the situation in which the challenged judge possessed only a remote proprietary interest in a case.

By the middle of the Nineteenth Century, however, the English view as to the propriety of judges sitting in circumstances other than those involving their own pocketbook also began to undergo change. For example, in 1866 the Queen's Bench indicated, in dicta, that disqualification should be ordered whenever there was a real likelihood that the judge would--whether from kindred or any other cause--have a bias in favor of one of the parties or adverse to another.

§1.4 Evolution Of Judicial Disqualification In America

As was the case in Eighteenth Century England, in the United States, at common law, the only judicially accepted ground for disqualification was a judge's pecuniary interest in the cause; and, for many years following independence American law--like English law--admitted a very limited number of grounds for seeking judicial disqualification.

However, an "evolution" of thinking on this subject analogous to that which marked the English jurisprudence of the Nineteenth and Twentieth Centuries also took place in the United States. For example, while the initial version of the original federal judicial disqualification statute--which was enacted in 1792--permitted disqualification only where the challenged judge was concerned in interest, had acted in the cause, or had been "of counsel," Congress subsequently amended that statute on multiple occasions--in each instance enlarging the grounds for seeking disqualification; and a similar expansion of the disqualification right also took place in most American states.

In accordance with this expanding judicial disqualification standard, the United States Supreme Court read the Constitution to forbid decision-makers from hearing cases where it could be shown that they were involved in the litigated incidents, had a personal stake in the outcome, or had become personally embroiled with a party.

However, this expansion of the judicial disqualification right did not come without a price. While, at common law, it was virtually never possible to show good cause for disqualifying a judge, the rigid common law rule did have the definite advantage of clarity. With each expansion of the common law rule, however, troubling questions were raised regarding the proper parameters of judicial disqualification; and many of these questions have yet to be satisfactorily answered.

Nevertheless, the fact remains that--in both federal and state jurisprudence--a significant number of different grounds may now be properly asserted in support of a judicial disqualification motion. In addition to a judge's pecuniary interest in the cause, such a motion may--depending on the jurisdiction--be predicated on the ground that the judge either is or appears to be "biased"; is interested in the outcome of the proceeding; is related to someone who is interested in a proceeding; has prejudged the law or facts of the case; has improperly come into possession of knowledge of disputed evidentiary facts; has engaged in improper ex parte communications; was previously employed as an attorney for one of the parties; previously acted as a judge in the proceeding, or in a related or prior proceeding involving a present party; may or will be required to provide material testimony in the matter; has made impermissible comments regarding the proceeding; or has engaged in improper behavior in conducting it.

In addition, in a significant minority of American jurisdictions, judicial disqualification may now be obtained upon application by the moving party--without proof that any enumerated ground for disqualification actually exists.

§1.5 Modern American Judicial Disqualification Practice

The subject of judicial disqualification has only occasionally attracted widespread public attention in America. It did so early in the Twentieth Century in Montana, later in Delaware, and then again in the late 1960's, when Congress rejected the Supreme Court nomination of Justice Clement Haynesworth--in part because of his failure to disqualify himself from presiding over a number of cases in which such a course of action had been unsuccessfully urged.

While judicial disqualification has only been of occasional public interest, however, the subject has been much before state courts and legislatures. On account of this--and because the prescription of available grounds for judicial disqualification is generally considered to be a matter of legislative discretion,--most states now have some statutory law on the subject.

Indeed, many states--as well as the federal government--have adopted multiple judicial disqualification statutes. These often enumerate separate grounds for seeking judicial disqualification--or discrete procedures for seeking this remedy--in civil and criminal proceedings.

§1.6 The Nature of the Modern American Judicial Disqualification Right

In spite of recent legislative reforms--which generally seek to prescribe specific instances in which judicial disqualification may be appropriate--as well as the nearly universal adoption of the American Bar Association Code of Judicial Conduct, there are competing concerns which may impact upon the decision as to whether a particular judge should be disqualified from presiding over a particular case: on the one hand, if removing a judge were to be made too easy, both the cost and the delay of justice would tend to go out of bounds; on the other hand, however, were disqualification to be made too difficult, cases would be decided quickly, but perhaps unfairly.

These polar views have resulted in the adoption of judicial disqualification statutes, court rules and constitutional provisions which range from those which are virtually impossible to satisfy to those which are almost impossible not to satisfy. As a consequence, American judicial disqualification jurisprudence remains murky and unsettled.

In fact, the modern American case precedents concerning judicial disqualification jurisprudence are replete with inconsistencies, which suggest the absence of a sound theoretical base, and raise troubling questions as to precisely how much impartiality a litigant has the right to reasonably expect of a judge.

§1.7 The Concept of Judicial Impartiality

While parties are not entitled to a judge with a liberal or generous attitude,--or to one who is favorably disposed to their cause,--it is generally agreed, at least in principle, that they are entitled to nothing less than a neutral and detached decision-maker, operating in an atmosphere of total fairness and impartiality. Indeed, judicial impartiality has long been considered to be the keystone of the American judicial system.

On account of the importance of the concept of judicial impartiality to our jurisprudence,--and in order to foster this fundamental right--virtually every commentator who has critically analyzed the subject of judicial disqualification has supported its expansion.

While this is so, however--and while some courts continue to refer to judicial disqualification as a method of finding judges whose minds adhere to the "straight line of impartiality," and to impartiality itself as the sine qua non of the American legal system,--it is becoming increasingly common for commentators-- and even courts themselves--to suggest that the concept of absolute judicial neutrality impartiality may be a legal fiction. Indeed, as one commentator has eloquently expressed it, there appears to be a "repressed crisis of confidence in the ideal of impartiality itself."

§1.8 Strategic Use Of Judicial Disqualification Motions

It would be impossible for Congress or a state legislatures to list all of the different factors which could conceivably provide a legitimate reason for a party or attorney to question a judge's impartiality. In recent years, however--particularly since the adoption of the Code of Judicial Conduct for United States Judges,--a substantive body of judicial disqualification law has begun to develop; and this law is embodied in literally thousands of written opinions on this subject.

The reason for the enormous volume of judicial disqualification case precedents is not difficult to fathom--while the right to seek judicial disqualification is intended only as a guarantee to litigants of the right to a fair and impartial trial or hearing,--not as a means for improving their odds with another judge who may be more receptive to their cause--many parties and attorneys have come to recognize the strategic value of the judicial disqualification right.

On account of the obvious potential for abuse inherent in making judicial disqualification widely available to litigants and counsel, courts and commentators have often brooded about the wisdom of doing so. Indeed, it has been suggested that, under the current legal framework, it is all too easy to get rid of a judge nowadays.

Such concerns have, however, generally been deemed to be outweighed by concerns about the potential for abuse inherent in permitting judges who are not fair and impartial to decide matters which have been entrusted to them for neutral and detached disposition.

§1.9 Attorney Disqualification Compared

While it is often assumed that the subjects of judicial disqualification and attorney and law firm disqualification are closely related, except for the increasingly common recourse to both judicial and attorney disqualification motions as tactical weapons--as well as the fact that both remedies share the word "disqualification" in their name--there are few similarities between them.

This is so--at least in part--because, while attorney disqualification issues are generally evaluated in accordance with relevant state and/or federal ethical standards, questions of judicial disqualification are typically controlled by constitutional provisions, statutes and/or court rules. There is, moreover, a practical impediment to filing judicial disqualification motions that does not exist in the case of attorney disqualification motions--the fear of judicial retribution.

§1.10 Whether A Disqualification Motion Should Be Made

§1.10.1 Introduction

When facts arise which suggest that a judge is or may be biased against a party or its counsel--or in favor of its adversary--litigants ordinarily have the right to seek the disqualification of that judge. In fact, such a right may have been expressly conferred by a statute, or even a constitutional provision.

Under such circumstances, the attorney for the party whose interests may be prejudiced by proceeding with the matter before the tainted judge may not only have the right to seek judicial disqualification, but the duty to his client to do so,--as long as he seeks such relief in good faith, and in a timely manner.

While this is so, however--and while judicial disqualification motions are ordinarily handled, procedurally, in much the same way as are other types of motions--a disqualification motion is not just another procedural or evidentiary motion; nor is it a mere pleading--a first step towards a possible case.

On the contrary, such a motion constitutes a direct attack on one of the basic principles of our judicial system--the impartiality of judges--and it necessarily calls into question the proper administration of justice. For this reason--and because judicial disqualification motions tend to disrupt the orderly functioning of the judicial system, and undermine public confidence in the judiciary as a whole, judges tend to take such allegations of judicial bias quite seriously.

In fact, it has been said that--of all the charges which may be leveled against one who has been sworn to discharge his judicial duties faithfully and impartially,--accusations of bias must be deemed at or near the very top in seriousness. Appellate courts, moreover, tend to view judicial disqualification enquiries as being both difficult, and distasteful.

Consequently, while, in certain situations, an attorney may have the right--or even an obligation--to file a judicial disqualification motion, such a motion should generally not be pursued absent thorough legal research, and unless careful investigation convinces the attorney that the judge against whom the motion is directed possesses bias against himself or his client which would make it difficult for his client to receive a fair trial.

Moreover, while attorneys owe their clients a duty of zealous representation, they are also officers of the court; and, as such, they have an obligation to assist the judicial system in functioning properly. On account of this obligation, an attorney is not permitted to do everything for her client that he might be willing to stoop to do himself had he but her knowledge.

In other words, there are limits to the stratagems that may be employed in aid of a party's cause. For judicial disqualification purposes, this means that there is a point at which the duty of zealous representation which counsel owes to its clients is outweighed by its duties to the court and to the administration of justice in general.

In addition, while attorneys owe a duty to their clients to prosecute or defend their cases vigorously--even with arguments which might be offensive or ultimately unsuccessful,--this is only encouraged as a means of ascertaining the truth; and anything which impedes the natural flow of a case hinders the search for that truth.

Since this is so--and because misrepresentations or falsities can only frustrate the goal of finding the truth,--counsel is not permitted to engage in intentional misrepresentations, or other willful misconduct;--and he must not say or suggest that he would circumvent procedures by which legal matters may be presented in an impartial matter,--much less file a disqualification motion which he knows to be false.

Consequently, in spite of language in some decisions which suggests that disqualification is the better practice whenever a judge's impartiality might be questioned for any non-frivolous reason,--and while judges are not, nor should be, immune from questions about their impartiality, and parties or counsel who truly questions a judge's impartiality should not be discouraged from seeking to disqualify that judge, or castigated for doing so--it has generally been held that a motion for judicial disqualification is a serious undertaking which should never be undertaken lightly, and without a solid basis in fact and law.

§1.10.2 Counsel's Duty Of Reasonable Inquiry

A question has sometimes arisen as to what standard of conduct must be met before counsel is permitted to raise the specter of judicial disqualification. While counsel's responsibility is generally stated as being one of reasonable inquiry under the circumstances, this responsibility is not necessarily easy to satisfy; especially in criminal cases, in which defense counsel are likely to be confronted with statements of clients--or potential witnesses--which are of doubtful veracity.

However, while it is not counsel's responsibility to perform the role of the court or the jury to decide questions of ultimate truth, counsel does have some objective responsibility to insure the accuracy of information before it is presented to a court.

Consequently, while attorneys who use professional care and circumspection in exercising the right to seek judicial disqualification should not have to be apprehensive of chastisement or penalties for having the courage to raise questions as to a judge's qualifications to preside, a motion to disqualify does not offer counsel a safe haven for taking pot shots at judges, or filing frivolous motions; and, because this is so, counsel is well advised to be circumspect both about seeking judicial disqualification in the first place, and about how he characterizes the need for disqualification when he does.

§1.10.3 The Availability Of Sanctions

Judges who have been challenged by frivolous disqualification motions are not without means to retaliate. Indeed, where an attorney files a judicial disqualification motion that is not properly supported--or has not been adequately researched--some form of sanction has often been deemed to be appropriate.

However, the kind and degree of sanction which may be imposed upon an offending attorney may vary significantly from case to case. Whereas some courts have indicated that the mere threat of a perjury prosecution or disbarment proceeding is sufficient to inhibit unfounded judicial disqualification motions, others have ordered offending attorneys to pay monetary sanctions, pursuant to Fed. R. Civ.P. Rule 11, or an equivalent state rule or statute.

Still other courts have initiated contempt charges, disciplinary action, or even disbarment proceedings, against the offending attorneys; or have taken similar actions--such as revoking the privilege to practice pro hac vice.

§1.10.4 The Standard For Determining Whether Sanctions Should Be Imposed

In assessing whether any sanction should be imposed against counsel for filing an improperly supported or researched judicial disqualification motion, counsel's conduct is ordinarily measured against an objective standard. Thus, the mere fact that such a motion ultimately proves to be unsuccessful does not establish that counsel's averments of bias were made in bad faith; and, therefore, typically does not warrant any sanction.

A sanction may be warranted, however, in circumstances in which counsel's conduct in filing such a motion is found to have been either reckless or grossly negligent. In other words, while counsel would certainly breach its ethical duty by filing a judicial disqualification motion in bad faith, the fact that counsel acted in good faith in filing such a motion will not necessarily preclude an award of sanctions; particularly where the motion is found to have been filed in a dilatory manner.

§1.10.5 Possible Judicial Retribution for Filing A Disqualification Motion

Just as judges generally do not enjoy admitting having committed legal error, they are typically less than eager to acknowledge the existence of situations which may raise questions about their impartiality; and, while the primary concern of our judicial system is to dispense justice to litigants--not to soothe the hard feelings judges may have when someone questions their objectivity,--it must be acknowledged that the filing of a judicial disqualification motion may antagonize the judge who has been challenged by such a motion,--either consciously, or subconsciously; with the result that litigants and their counsel may suffer.

Indeed, where a judicial disqualification motion has been made and denied, the moving party's fate is left to a judge whom that party or his attorney has not only alleged may not be able to render a fair and impartial decision, but who may have become biased--subconsciously or otherwise--by the fact of the filing of the judicial disqualification motion itself. In fact, even a well-grounded disqualification motion may be a risky proposition, because the moving party runs the risk of alienating the challenged judge, thereby exacerbating any perceived bias.

Even when the challenge is successful, moreover, the moving party may encounter problems. For one thing, he may perceive the substitute to judge to be worse--a happenstance that is particularly likely in those jurisdictions which permit the challenged judge--upon disqualification--to participate in transferring the matter to one of his like-minded colleagues. Thus, the result of a successful judicial disqualification application is not necessarily the fresh and open-minded judge the litigant sought.

For this reason, unless the basis for making a judicial disqualification motion is crystal clear, attorneys have often been reticent to file such motions; and, when they have decided to bring the ethical issue to the fore, they have sometimes framed the request as a "suggestion" or "invitation" to the judge to consider whether to disqualify himself, rather than as a motion which affirmatively seeks such relief.

Because judges should be part of the solution to a controversy, not part of the problem, this reluctance to assert what is--in many jurisdictions--a legislatively or even constitutionally-prescribed right is very unfortunate. The fact remains, however, that the decision as to whether a judicial disqualification motion should be filed in a particular instance must ultimately be viewed as being a matter of trial strategy.

Back to top of page