F. JUDICIAL DISQUALIFICATION
AND RECUSAL
SOURCES OF RULES
 ABA Model Code of Judicial Conduct
 1990 version (supplement)
 Canon 3: Impartiality and Diligence
 3(E): Disqualification (duty to recuse)
 3(F): Remittal of Disqualification
 3(B)(9): Public statements
 2008 version (supplement)
 Rule 2.11: Disqualification (duty to recuse)
 Rule 2.10: Judicial Statements
 Procedure: duty to recuse or invite remittal
(waiver), party can make motion, judge decides
Sources c’t’d
 Federal Statutes on Disqualification
 28 U.S.C. s. 144: right of party to disqualify
for personal bias or prejudice
 affidavit alleging bias against party or
prejudice -- only one per party!
 duty of judge to recuse w/o inquiry into
truth of affidavit
 28 U.S.C. 455: grounds for disqualification,
duty to recuse or invite waiver, party can
move, judge rules on motion
Problem pp. 388-90
 Judge Whynne’s statement in public lecture that
“there is no such thing as ‘discriminatory
prosecution’” in criminal cases; you consider this
as a defense in this case
 “impartiality might reasonably be questioned”?
 “personal bias or prejudice concerning a party”?
(before 1999 was only specified possibility)
 “commits or appears to commit the judge to reach a
particular result or rule in a particular way in the
proceeding”? (2008 Rule 2.11(A)(5) – cf. 1990 Canon
3(E)(1)(f) (added 1999) – cf. Laird v. Tatum, n2 p. 399
 “commitment … inconsistent with the impartial
performance of adjudicative duties”? (2008 Rule
2.10(B), 1990 Canon 3(B)(10))
Problem pp. 388-90 c’t’d
 Purpose of D’s document theft was to expose
Senator Thompson, who was judge’s law
partner and whose campaign for senate was
managed by judge, and who proposed judge
for appointment
 “personal bias or prejudice concerning a party”?
 “personal knowledge of disputed facts”?
 “appearance of impropriety”, 2008 Rule 1.2 or
1990 Canon 2(A)?
Problem pp. 388-90 c’t’d
 Angie Doyle as a government witness at
trial, was Senator’s adm. asst. and alleged
to have been a co-conspirator
 Personal bias or prejudice?
 what if the judge had hired Angie in the first
place, when she was Thompson’s campaign
mgr., and had worked closely with Angie?
 general standard, impartiality might be
questioned?
Problem pp. 388-90 c’t’d
 As state judge, Whynne had tried a libel
action against D, and found that his
accusation against P was “wholly without
foundation” and “obviously animated by
malicious intent to injure” P
 “personal bias or prejudice”?
 cf. Liteky, p. 390: what is the “extrajudicial
source doctrine”?
 cf. Reeter, n. 5 p. 402
What procedures to follow?
 Motion to disqualify
 privileged motion?
 federal: s. 144, and Sykes, p. 404 – on
what ground was recusal denied?
 state rules like Missouri’s: “change of
judge” – how does that differ from the
federal?
 if not privileged, who decides?
 Remittal or Waiver – what potential
problems? Does the Code avoid them?
Problem c’t’d
 Your firm has hired one of Judge Whynne’s
clerks, and is currently negotiating with a
present clerk
 conflict of interest for the firm?
 former clerk?
 current clerk?
 For the judge?
JUDICIAL CONFLICTS C’T’D
Caperton v. A.T. Massey Coal Co.(U.S. 6/8/09)
 Caperton and others sued Massey for fraud, j/Ps $50mil
 After verdict but before appeal to state S.Ct., elections
for ct. were held, and Massey’s chairman supported
challenger Benjamin against incumbent, contrib. $3 mil.,
50+% of all expenditures for Benj., Benj. won narrowly and
took seat
Massey appealed, Ps moved to recuse Benj., he denied
because he wasn’t influenced. B voted for M., wrote conc.
 Held violation of DP, extreme circumstances gave rise to
intolerable doubts about judge’s ability to be fair and
impartial; proof of actual bias not required
 5-4, ideological split, Kennedy writing maj. op. w/ libs