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Disqualification for Bias or Its Appearance

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   §4.1 Introduction
   §4.2 Problems with Permitting Disqualification for "Bias"
   §4.3 Limitations on Bias as a Ground for Disqualification
   §4.4 Bias Toward an Attorney
   §4.4.1 Introduction
   §4.4.2 Arguments in Favor of Permitting Disqualification on the Basis of Bias Toward an Attorney
   §4.4.3 Arguments Against Permitting Disqualification on the Basis of Bias Toward an Attorney
   §4.4.4 Exceptions to the Rule
   §4.4.5 Judicial Efforts to Correct Unprofessional Conduct
   §4.5 Bias Toward a "Class"
   §4.6.1 Introduction
   §4.6.2 Origin of the Extrajudicial Source Rule
   §4.6.3 Confusion Regarding the Extrajudicial Source Rule
   §4.6.4 Pervasive Bias
   §4.6.5 Current Status of the Extrajudicial Source Rule
   §4.7 Bias in Presiding over a Jury Trial

§4.1 Introduction

It is generally agreed that a litigant is entitled to have her case decided by a judge who can approach the facts in a detached and objective manner; indeed, the protection of the integrity and dignity of the judicial process from judicial bias has been hailed as "the palladium of our judicial system." At common law, however, a judge could not be disqualified because of bias, except insofar as such bias might be inferred from the fact of his pecuniary interest in the cause. Nevertheless, as the common law expanded, judicial bias was added to the list of available grounds for seeking judicial disqualification, both by Congress and by the legislatures of most states.

§4.2 Problems with Permitting Disqualification for "Bias"

In many cases in which a party or attorney seeks to disqualify a judge, the record is simple—for example, the judge is either related to a litigating party or not. Difficult problems may arise in those cases in which disqualification is sought not on the basis of judicial relationships or interest but on the grounds of perceived judicial bias or some other incapacity to fairly sit. Indeed, while the expansion of the common law to permit judicial disqualification for "bias" has generally been applauded, this expansion has injected into judicial disqualification jurisprudence some of its most profound issues.

First, as a threshold matter, many of the statutes that authorize judicial disqualification on the ground of "bias" also sanction disqualification on the ground of "prejudice." This is problematic because, while some courts routinely use the terms together or define them in the same or similar ways, others have emphatically stated that "bias" and "prejudice" do not mean the same thing.

While there may be a nuance of difference between these two terms, the phrasing of many of the statutes utilizing them suggests that they are ordinarily intended to be used interchangeably. Consequently, this text will generally refer to what the cases and statutes have alternatively referred to as either bias or prejudice as "bias," and will reserve use of the word "prejudice" for that situation in which a party has allegedly suffered damage as a result of judicial bias or impropriety.

A second and more fundamental problem is that while bias is an approved ground for judicial disqualification in many American jurisdictions, bias—unlike other grounds for disqualification, such as relationship and financial interest—is not an empirically provable fact but, rather, merely a shorthand way of characterizing the "attitude" or "state of mind" of a judge who cannot be relied on to act in an impartial manner.

A related problem with admitting "bias" as a ground for judicial disqualification is one of proof. Some courts require that before judicial disqualification will be ordered on the basis of a judge's bias, a clear and precise showing of such bias must be made. However, judicial bias can clearly be shown to exist only where there is an undisputed claim or where the judge has expressed an opinion on the merits of the controversy before him; it is only in a rare case that a judge will openly express such a bias.

In the absence of such an expression of bias, the moving party is obliged to attempt to establish the existence of a state of mind, and doing so, even by a preponderance of the evidence, is an extremely difficult task. Thus, the "actual bias" standard ordinarily protects only against the most flagrant instances of bias.

Indeed, parties who seek to rely on the "bias" ground for disqualification are often relegated to attempting to show not that a judge is actually biased but only that he appears to be so. This can pose a problem because in some jurisdictions actual bias is an approved ground for judicial disqualification but a mere appearance of bias is not.

Yet another problem with admitting "bias" as a ground for judicial disqualification is that—while the right to a fair trial is the foundation of our judicial system, and while necessarily included in that right is the right to a trial presided over by a judge who is impartial—judges are, and always will be, biased to some degree. Some of a judge's biases, moreover, may represent the community's most cherished values and ideals. Indeed, it has been said that all judges not only have — but should have—closed minds on some issues; therefore, the test for disqualification for bias is not whether a judge has unalterable convictions but which unalterable convictions he has.

It should be noted that not every unfavorable opinion that a judge may hold toward an individual or his case is properly described by the term "bias." On the contrary, bias connotes a disposition that is somehow wrongful or inappropriate either because it is undeserved, because it rests on knowledge that the judge ought not to possess, or because it is excessive in degree. A judge who presides at a criminal trial may, upon conclusion of the evidence, be exceedingly ill-disposed toward a defendant who has been shown to be a thoroughly reprehensible human being. Nevertheless, because the judge's knowledge and the opinion it produced were properly and necessarily acquired in the course of the judicial proceeding itself, such judge is ordinarily not deemed to be subject to disqualification for "bias" on this account.

A judge, moreover, must shrewdly observe the stratagems of the opposing lawyers, perceive their efforts to sway him by appeals to his predilections, and penetrate through the surface of their remarks to their real purposes and motives. In fact, judges may have an obligation to become in that sense "biased."

Consequently, the question whether judges should be subject to disqualification for "bias"—and just how biased they must be in order to be subject to this sanction—has introduced into judicial disqualification law what is perhaps its thorniest question: Precisely how human may a judge be and still be permitted to judge?

§4.3 Limitations on Bias as a Ground for Disqualification

There is little disagreement, in principle, that a judge conscious of any bias that might influence his official action, either against or in favor of any party to a proceeding pending before him, should decline to officiate over that proceeding whether he has been challenged or not. However, because of the imprecision and potential for abuse inherent in permitting disqualification for bias, a number of courts have imposed limitations on the type and degree of bias that a judge must possess before disqualification will be ordered on this ground.

It has frequently been held, for example, that, to be disqualifying, the alleged bias must be personal, as opposed to judicial, in nature. In addition, to be disqualifying bias must ordinarily be of a character that is sufficient to overthrow the presumption as to the judge's impartiality, and, therefore, sufficient to deny a party—particularly a criminal defendant—a fair hearing or trial.

Thus, absent specific instances of conduct that reflect actual bias against a party, disqualification may not be warranted. Furthermore, a judge will ordinarily not be disqualified on the ground of actual bias unless it can be shown that such bias was either directed against a party or its counsel, or in favor of the adverse party or counsel, or that the challenged judge, in order to compensate for the appearance of such a bias, has bent over backwards to make it seem as though he has not acted as a result of such bias.

§4.4 Bias Toward an Attorney

§4.4.1 Introduction

A claim that a judge has manifested bias toward a party's counsel is not essentially different from any other claim of judicial bias. Nevertheless, courts have drawn a sharp distinction between judicial bias toward a party and a similar bent of mind toward an attorney; this has resulted in a split in authority as to whether a judge's bias toward a party's counsel, as opposed to bias toward a party itself, can suffice to warrant judicial disqualification.

§4.4.2 Arguments in Favor of Permitting Disqualification on the Basis of Bias Toward an Attorney

Some courts have indicated that bias for or against an attorney may sometimes foretell—or even result in—bias toward the party that attorney represents, and thus reflect the absence of the impartiality required for a fair trial. Consequently, in some jurisdictions, when bias toward an attorney is of such a degree that it may adversely impact on that attorney's client, such bias may constitute a valid ground for judicial disqualification.

Though such a result may be warranted whenever the party seeking disqualification on that theory alleges facts that strongly suggest that the alleged bias against counsel might extend to the party, a colorable claim of bias is particularly apt to be made where the challenged judge has expressly indicated that he will or may take the conduct of counsel into consideration against his client.

In some jurisdictions disqualification because of bias for or against an attorney may be statutorily prescribed. Even in such jurisdictions, however, a party is ordinarily not permitted to bring an attorney into a case after it has been assigned to a judge, and then move to disqualify the judge on the ground that the judge has a bias against the attorney

§4.4.3 Arguments Against Permitting Disqualification on the Basis of Bias Toward an Attorney

Given the combative nature of litigation, there will always be personality clashes between judges and attorneys; it is not at all unusual for a judge to have before him an attorney with whom he has had prior acerbic relations. In addition, experience with the track record of a particular attorney may well prompt a judge to be on guard to ensure that the case is tried fairly and competently.

However, one of the fundamental lessons of judging is that a judge must rule on the merits of a proceeding without regard for the personalities of the attorneys involved or any unpleasant experiences the judge may have had with those attorneys in the past; it is a standard part of a judge's instructions to the jury that any apparent predisposition on the part of the judge, either toward or against a particular attorney, must be set aside in arriving at a verdict. Moreover, though a judge may distrust or even dislike an attorney, he may be quite capable of doing exact justice toward that attorney's client.

Thus, while a party's concern about a judge's apparent hostility toward her attorney is not to be lightly dismissed, it has generally been held that a judge's ill will toward an attorney is not necessarily indicative of any extrajudicial bias for or against a party, or a group of which that party is a member, that would result in an unfair trial. Consequently, neither the fact that a judge may have manifested impatience, frustration, or irritation with an attorney nor that he may have directed angry, unduly harsher critical comments toward him ordinarily justifies disqualification of the judge, much less gives rise to reversible error.

Likewise, neither a strained relationship between a judge and an attorney nor an occasional clash or flare-up between them, nor the fact that the court may have lectured counsel or treated him brusquely, usually suffices to warrant invocation of this remedy.

Similarly, in the absence of exceptional circumstances, a judge's belief that an attorney's litigation tactics, strategy, or conduct is improper or that the attorney is not providing his client with adequate representation, or has no credibility, or deserves to be sanctioned ordinarily does not provide a valid ground for disqualification, much less reversal. This is particularly so where the judge's attitude toward counsel is based not on any personal feelings or any assessment of counsel's good faith or integrity, but on the judge's belief as to the merits of counsel's arguments or his perceptions of counsel's performance as an attorney. Thus, disqualification may be denied on the basis of allegations of judicial bias even where a judge's bias toward a party's attorney has been shown to exist, unless the complaining party is able to also demonstrate that such bias has had an adverse impact on its position. A party ordinarily will be able to make such a showing only in rare instances.

§4.4.4 Exceptions to the Rule

Judicial bias against attorneys does not generally or presumptively constitute bias against the clients of those attorneys. Therefore, in most jurisdictions for such judicial bias to be disqualifying, or to require remand to a different judge upon reversal, it ordinarily must be directed against a party itself, not against the attorney for that party, or be so strong as to prevent the fair rendition of justice to the party. This rule, however, is not absolute.

Although judges are expected to possess more than the average amount of self-restraint, they are still only human. They do not exist in a vacuum nor do they possess limitless ability—once passion has been aroused—to resist provocation. Consequently, exceptional circumstances may and do sometimes arise in which a judge's attitude toward a particular attorney is so virulent that the judge's impartiality toward the attorney's client may reasonably be questioned. Where the judge's antagonism toward an attorney is of such a character and intensity as to warrant a reasonable belief that the judge might not be able to impartially consider the arguments of that attorney in the case before the court, disqualification of the judge may well be warranted.

In extraordinary situations—where an attorney makes personal attacks on a trial judge, where counsel and the court engage in constant wrangling, or where it can be shown that the challenged judge's bias toward counsel has adversely affected the interests of his client—disqualification of that judge, or reversal of any decision that has been rendered by that judge, may sometimes be appropriate. Indeed, in sufficiently egregious circumstances, a judge's bias against an attorney not only may provide an appropriate ground for disqualification or reversal but for reassignment on remand or even disciplinary action against the offending judge.

However, to warrant judicial disqualification—much less other, more drastic sanctions—the judge's bias toward the attorney ordinarily must be extreme. Situations in which judges have manifested such extreme bias toward an attorney are exceedingly rare.

§4.4.5 Judicial Efforts to Correct Unprofessional Conduct

In determining whether a judge has manifested such "extreme" bias against an attorney as to warrant judicial disqualification or other sanctions, it must be borne in mind that, while the applicable ethical canons impose on judges the obligation to avoid the manifestation of hostility to an attorney, they nevertheless permit judges to criticize and correct unprofessional conduct. In fact, a judge may be duty-bound to take action to rectify what he perceives to be improper conduct by those attorneys who practice before him.

This tension between a judge's duty to avoid manifesting hostility toward an attorney and his obligation to criticize and correct unprofessional conduct has provided fertile ground for claims of judicial bias, particularly in those instances in which a judge has found an attorney's behavior to be so reprehensible that he has sought to subject that attorney to some sort of discipline or cite her for contempt.

The mere fact that a court has cited an attorney for contempt does not, however, conclusively establish that the judge was personally embroiled with that attorney. Consequently, while it is sometimes said that the transfer of any resulting criminal contempt proceeding might be preferable, it has generally been held that a judge who has cited an attorney for contempt is not even disqualified from presiding over the contempt proceeding itself.

If a judge is not automatically disqualified from presiding over a contempt proceeding against an attorney he has cited for contempt, it follows that a judge's citing an attorney for contempt will seldom warrant disqualifying the judge from presiding over the action in which the contemptuous conduct allegedly took place. This is particularly so where no actual prejudice to the litigant can be shown as a result of the judge's continuing to preside.

Similar conclusions have been reached where the judge, instead of issuing a contempt citation, referred the in-court, unprofessional conduct of an attorney to a bar association grievance committee, sat upon an attorney's disciplinary proceedings for unethical conduct in connection with a case, or ordered an attorney to pay monetary sanctions.

§4.5 Bias Toward a "Class"

While judicial bias to be disqualifying must ordinarily be directed against a specific individual, in some jurisdictions there is no requirement that the judge's alleged bias be shown to be "personal" to a particular litigant. In such jurisdictions a judge's ill feeling toward a class, such as a religious group, may be deemed to constitute bias against individual parties to an action who belong to that class. The difference between personal bias and class bias is straightforward: Whereas, in the personal bias situation, a judge dislikes the litigant because of who he is, in the "class" bias situation her dislike stems more because of what he is.

The type of conflict which is said to arise when a lawyer may be in a position to adversely use a former client's confidences for the benefit of a current client – or take other improper actions that would adversely impact upon a former client's interests – is occasionally referred to as a "closed file" conflict. This type of conflict accounts for a very high percentage of the disqualification decisions which have been reported in the jurisprudence.

In the seminal case dealing with this type of class bias, Berger v. United States, the affiant averred facts that, if true, clearly showed that the challenged judge regarded all Germans with contempt, and it could readily be inferred that such class bias would redound to the detriment of the plaintiff. Berger was an unusual case, however, in which the judge's class bias was manifest from the record. Proof of such class bias is ordinarily extremely difficult to gather. Even when class bias can be shown, no consistent standard has developed for deciding when proof of a judge's class bias constitutes sufficient proof of personal bias to warrant judicial disqualification.

On the one hand, some courts have expressed the view that, if judges are assumed to be capable of adopting complete professional detachment toward a party in spite of being biased toward that party's attorney, judges can be equally professional when it comes to class bias. However, other courts and commentators have expressed the view that bias toward a class of which a party is a member is much more likely than bias toward a party's counsel to translate into actual bias toward the party itself, and that, in certain circumstances, disqualification may be warranted on this basis.

For example, evidence of a judge's racist sentiments, involvement in discriminatory acts, and perhaps even clearly unlawful decisions could warrant the conclusion that the judge will not properly apply the law in a particular situation; because this is so, the better view is that, in these types of situations, class bias should constitute an authorized ground for seeking judicial disqualification or even reversal of an existing judgment.

However, while bias against a class, as opposed to bias against a particular litigant, can conceivably provide a legally sufficient ground for disqualification in certain circumstances, this will generally only be so when the judge's ill feeling toward the class is sufficiently transferred to an individual litigant to warrant the belief that the judge will not be able to do justice in that case.

§4.6 The Extrajudicial Source Rule

§4.6.1 Introduction

Among the limitations that historically have been placed on bias as an enumerated ground for disqualification is the rule that bias is not disqualifying unless it stems from an "extrajudicial source." Many cases have held that in order to warrant judicial disqualification, the alleged bias must have arisen not from judicial knowledge, opinions, conduct, or comments that derived from the evidence adduced in a pending or a prior proceeding, but by virtue of some factor that arose outside of the incidents that have taken place in the courtroom itself.

The extrajudicial source rule has often been stated in another way—to be disqualifying, a judge's alleged bias must be "personal" rather than "judicial" in nature. Through the years, the courts have developed a considerable jurisprudence as to what constitutes "personal bias" that is sufficient to warrant disqualification, as well as to what does not.

A frequently invoked corollary to the extrajudicial source rule is that the alleged judicial bias must bear directly on the proceeding in which disqualification is sought, and have resulted in an "opinion on the merits" on the basis of something other than what the judge learned from his participation in that proceeding.

§4.6.2 Origin of the Extrajudicial Source Rule

The extrajudicial source rule was originally announced in the context of a 144 motion, and it has routinely been applied to such motions. In addition, the rule has frequently been held to apply to 455 motions, and in state courts as well as in federal courts.

§4.6.3 Confusion Regarding the Extrajudicial Source Rule

Requiring litigants to establish an extrajudicial source for the bias they allege in support of a judicial disqualification motion would appear to make sense, and the extrajudicial source rule was long regarded as a maxim of judicial disqualification jurisprudence. The rule, however, did not develop without a certain amount of confusion. This confusion has been fostered by the fact that few courts have been willing to draw an unequivocal line between what constitutes judicial activity and what does not. A number of case holdings have reflected a tendency on the part of courts to define the ambit of "judicial" activity quite broadly.

An additional element of confusion stems from the fact that a number of courts have indicated that, for a judge's alleged bias to be disqualifying, it must have had its origins in a source that exists beyond the "four corners of the courtroom," and not from his participation in the case.

At first blush, the "four corners of the courtroom" test would appear to provide a sound geographical litmus test for determining whether complained-of conduct is judicial. However, the policy considerations that underlie the test manifest that such is not the case. On the contrary, it has generally been agreed that even conduct that arises inside the courtroom may be deemed disqualifying if it has its source outside the courtroom, and, conversely, that conduct that occurs outside the courtroom may not be disqualifying if it arises from a distinctly judicial source.

Thus, "extrajudicial" conduct is not conduct that physically takes place outside of the courtroom but, rather, conduct that arises from something outside of the events of the trial itself; since this is so, the distinction between judicial and extrajudicial bias has been held to lie not in the location of the incidents from which the bias is alleged to arise, but in the nature of those incidents.

Consequently, while the basic rationale for the extrajudicial source rule lies in the distinction between "bias" developed by a judge during the course of court proceedings and "bias" that has its origins in sources outside of the courtroom, the "four corners of the courtroom test" is really but an alternative formulation of the rule that, to be disqualifying, bias must be personal rather than judicial.

§4.6.4 Pervasive Bias

In view of the weighty policy considerations that have been cited in support of the extrajudicial source rule, it sometimes has been argued that the rule should not be subject to any exceptions. Courts, however, have been reluctant to hold that a judge's conduct of proceedings before her can never provide the basis for a finding of bias.

On the contrary, while a judge will not typically be disqualified on the basis of bias unless it is shown that such bias derived from an extrajudicial source, it has occasionally been held that, where a litigant can demonstrate that a challenged judge has said or done something in her judicial role that reflects such a degree of irritation or animus as to manifest an unacceptable "bent of mind," disqualification may be warranted, even where the source of the judge's bias was a wholly judicial one.

Stated otherwise, even though a judge's predisposition may have arisen from a wholly judicial source, disqualification sometimes may be warranted where it appears that a judge has developed a closed mind. This is generally true regardless of whether the judicial bias is manifested by means of in-court remarks, conduct, findings, or orders.

However, while the fact that all prior contact claimed in support of disqualification has been judicial does not necessarily immunize a particular judge from disqualification, it does mean that more than surmise or conjecture is needed to compel disqualification. Indeed, in order to avail oneself of this exception to the extrajudicial source rule, an extraordinary showing of bias has, historically, ordinarily been required.

In order for bias that has arisen from a wholly judicial source to be disqualifying, courts have traditionally required the moving party to show that such bias is "pervasive." "Ordinary" predispositions—such as those that may arise by virtue of routine activities—do not usually give rise to such pervasive bias.

For this reason, while countless disqualification motions have been predicated on allegations of extrajudicial bias, the pervasive bias exception to the extrajudicial source rule has been successfully invoked in only a handful of cases. It should be noted, moreover, that "pervasive bias" has sometimes been held to constitute the only exception to the extrajudicial source rule. In other words, unless the alleged bias can be shown to be pervasive, in order to obtain judicial disqualification on bias grounds the moving party generally must demonstrate that the alleged bias derived from an extrajudicial source.

§4.6.5 Current Status of the Extrajudicial Source Rule

Although not every court has explicitly required a showing of extrajudicial bias as a prerequisite for judicial disqualification in all circumstances, the extrajudicial source rule was long thought to be a well-settled one. However, in Liteky v. United States, the United States Supreme Court recently observed that the extrajudicial source doctrine has been "more standard in its formulation than clear in its application."

After an extensive discussion of the origins and history of the extrajudicial source doctrine, the Liteky Court concluded that there is no per se rule requiring that a judge's bias arise from an extrajudicial source to be disqualifying. The Court noted, moreover, that since the presence of an extrajudicial source does not necessarily establish bias—nor the absence of an extrajudicial source necessarily preclude bias—there really is not much to the extrajudicial source doctrine. As Justice Kennedy noted in his concurring opinion, in determining whether disqualification is warranted on bias grounds, the only relevant consideration is whether there is an appearance of bias, not where such bias originated or how it was disclosed.

Nevertheless, the extrajudicial source rule may provide a convenient shorthand for explaining how courts have confronted the disqualification issue in circumstances that recur with some frequency and thus may have some utility.

§4.7 Bias in Presiding over a Jury Trial

Some courts have expressed the view that when a judge's conduct or comments bespeak bias, but the matter in which such bias has been expressed is a jury trial, the complaining party cannot show prejudice because the judge is not sitting as the finder of fact. However, because a judge performs important functions even when he is not acting as a finder of fact, not every court has agreed that it is permissible for a judge who is, or appears to be, biased to preside over a jury trial. In fact, the courtroom has been held no place for a judge whose impartiality in a matter may reasonably be questioned, even when such judge is not acting as the fact-finder.

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