Judges not required to report recusals, reasons for stepping aside

Judicial recusals are a serious topic, but Indiana law professor Charles Geyh can’t help but wonder how much lawyers and the public really know about requests and reasons for judges to step away from a case.

He recalled an actual case in which a litigant or lawyer sought recusal because the judge had chased him around the courtroom with a baseball bat. The jurist had two basic choices: to rule the motion has merit and warrants recusal, or to question the motion’s truthfulness and opt against stepping aside.
 

Nothing like that has happened here in Indiana, but the Indiana University Maurer School of Law – Bloomington professor wonders if that did happen here whether the judge would even have to acknowledge that situation when handing the case off or deciding to keep it. The state does not specifically track recusals in order to know how often they are happening and provide the legal community a full picture of recusal decisions from those on the bench.

Largely it’s a matter of trust, and the judges are expected to abide by judicial canons that require them to always remain impartial and avoid potential conflicts.

“Those big recusal cases serve as exclamation points for the idea that judges are people, too,” said Geyh, who is associate dean of research and a national expert on judicial ethics and recusal. “While the cases may be on the outer edges of what’s actually happening, they do raise a basic fundamental issue the judiciary should always be thinking about.”

Statewide recusals

While most recusal requests arise at the trial level, some do come up at the appellate stage for justices and judges who might have some personal involvement or interest in a case. Though not very common, the most common recusals involve appellate judges who’d ruled on a case as a trial judge before it reaches the higher court, or judges who’d worked as a lawyer on a case or with a firm handling that matter.

Supreme Court spokeswoman Kathryn Dolan said neither the court nor appellate clerk’s office officially tracks recusal data, and the judges and justices aren’t required to specifically outline if they are stepping aside or what reasons may exist for a recusal.

Annual reports show a category for “recusal opinions” in the tables breaking down the court’s caseload each year, but those figures mark when a justice actually wrote an opinion on a case about why he had recused himself. The reports for the past decade show that only Justice Robert Rucker had done that on a case in the 2002-03 term, but details of that appeal weren’t immediately available through the appellate court.

The state’s Judicial Code of Conduct, largely based on the American Bar Association’s model code, includes a particular provision – Rule 2.11 – dealing with disqualification. Commentary for the rule says a judge is disqualified whenever his or her impartiality might reasonably be questioned, and that a judge’s obligation not to hear or decide those matters applies whether a motion to disqualify is filed. One provision instructs judges to disclose on the record any information that the parties might reasonably consider relevant to a possible motion for disqualification, even if the judge believes no basis exists for recusal.

Shepard

At the appellate level, the issue has come up periodically through the years. A lawyer in 2008 wanted Chief Justice Randall Shepard to recuse himself on a case about a township fire district merger because of his past work on a local government reform committee that recommended merging more of those fire departments statewide. He chose to not participate. Another issue was a famous Indiana Court of Appeals case about public records involving the Indiana University Foundation, which the judicial panel members were a part of or had contributed to. They entered an order disclosing those facts and gave the parties a chance to seek new judges, but no one asked for them to step aside.

Most recently, the recusal topic came up when Justice Frank Sullivan recused himself from an appeal involving the state Medicaid system and the Indiana Family and Social Services Administration. In an Aug. 31 per curiam opinion in Anne W. Murphy, et al. v. Jannis Fisher, et al., No. 49S02-1008-CV-463, a line at the end of the opinion simply notes that Justice Sullivan didn’t participate in the case that was first filed in 1992 by Medicaid recipients and providers because of high transportation costs.

After at least one media inquiry about his non-participation, Justice Sullivan filed an entry Sept. 1 about the case on why he hadn’t participated. Dolan said that entry wasn’t a requirement but a personal decision by Justice Sullivan.

“A question has been raised as to why I did not participate in the decision,” his entry states. “My wife, Cheryl G. Sullivan, is a predecessor to Anne W. Murphy as Secretary of the Indiana Family and Social Services Administration and the facts suggest that certain events relating to this litigation took place during her tenure.”

However, the entry didn’t mention the justice’s personal background as legal counsel for Gov. Evan Bayh in the early 1990s, when he was a part of an administration that implemented Medicaid reforms in the state that led to lower transportation rates – an issue central to this particular appeal.

Outside of anecdotal information or specific knowledge of past recusal situations, Dolan said there isn’t a way to pinpoint how often these types of issues arise at the appellate courts. She said anyone not participating in a case doesn’t sit in any oral argument or conference discussion on the case, nor does that person make any comment on opinions throughout the appeal.

“That is not common,” Chief Justice Shepard said about recusals on the high court. “But there’s a common understanding between the five of us of what it means, and we don’t necessarily have to be privy to the relationships. Over time, some have explained the grounds (for recusal), but mostly they haven’t. The main reason why that’s the prevailing practice is because you’d rather not run the risk of influencing others on what led you to recuse yourself.”

For example, the chief justice posed a hypothetical situation where a justice’s niece or nephew with a different last name is a litigant and he or she chooses to step aside. That justice might choose not to release that full knowledge to the four participating judges so that they might look differently at the case, knowing a party is related to one of their fellow justices.

Now, when a justice recuses himself, that case is moved to the end of the agenda so that the disqualified justice doesn’t have to sit through discussions and can just leave the room.

“We do alter these practices from time to time, and we’re always looking at what might be done differently,” the chief justice said, noting that a recent ABA report on recusal rules might lead to more changes in the future.

He also acknowledged that recusals can be used as a strategic move by litigants or lawyers

“You find occasions where people try to use ethical rules as a tactical advantage,” he said, citing a Wabash County case from more than a decade ago in which a party decided it was clear that naming a judge as a defendant was a clear way of getting a new judge assigned. “You have to be aware of those issues, too, and know what you’re supposed to do and what you can’t let people do.”

Lack of recusal tracking nationally

Much like Indiana’s state courts, the federal judiciary doesn’t require recusals and doesn’t specifically track that data, according to the Virginia-based National Center for State Courts. Judicial canons address the issues and encourage judicial review of their own conduct, but there isn’t any specific guidance about when that should happen and it’s largely left up to the individual judge or court system.

In the Southern District of Indiana, Clerk Laura Briggs said once a federal judge decides to recuse him or herself an order of recusal may be issued to parties and 28 USC § 455 governing recusals can be cited, but the party or situation warranting recusal isn’t necessarily detailed. Judges can also prepare a memorandum for reassignment pursuant to local rules, but the specific reassignment reason isn’t required.

Following the landmark case last year in Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252, legal experts across the country speculated that courts would see a flood of recusal motions after the Supreme Court of the United States ordered a West Virginia Supreme Court justice to recuse himself on an appeal in which a litigant had previously contributed a large amount to his judicial election campaign for the state’s high court. But that didn’t happen, even though a handful of states in the meantime have re-examined their judicial canons and recusal rules.

Congress waded into that area, too. The House Judiciary Committee’s Subcommittee on Courts and Competition Policy late last year conducted a hearing on the issue and invited judges and legal experts – including Geyh – to talk about the issue.

Among the proposals being discussed are requiring a second judge to rule on a recusal motion – rather than leaving the motion to the “targeted” judge ­– and making substitution automatic if any party to a case swears an affidavit alleging prejudice. Some lawmakers have also said they want a system to review recusal decisions by SCOTUS justices.

The federal law setting out a standard for when a judge must recuse has remained largely the same since 1974, when it was modeled on an ABA proposal. A separate law that dates to 1949 says that a judge “shall proceed no further” in a case if a party files an affidavit alleging bias, but that’s not how it works practically.

Geyh testified that it’s essentially a “dead letter law” because under the current system judges get to decide on their own whether to disqualify themselves from cases. Basically, judges accused of being partial are being asked to “grade his or her own paper” and that presents a conflict, 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.”•