Judicial Disqualification Resource Center

Other Grounds For Disqualification

It is probably fair to say that most motions to disqualify judges are based on allegations of judicial bias or “apparent” bias; and, of those that are not, the vast majority are predicated on claims that the judge has a financial interest in the cause, is related to someone who has such an interest, or has comported himself in such a way as to raise concerns about his ability to be be impartial in presiding over the matter. Sometimes, however, such motions have been predicated upon other grounds; such as the judge’s background or work experience, his knoweldge about the parties or the relevant facts, or his ex parte communications with others about the subject matter of the case.

As far as background is concerned, it is well understood that judges’ outlooks are shaped, to some extent, by the experiences they have had throughout their lives – including, for most judges, their prior work as attorneys; and it would be unrealistic to suppose that judges do not bring those experiences, and the attendant biases they may create, with them when they ascend the bench. However, no inference of judicial bias presumptively arises as a result of a judge’s life experience. Typically, therefore, neither the experience a judge has acquired, nor the knowledge he has gained therefrom, supplies a basis for seeking his disqualification. In certain cases, however – as where a party appears before a judge who previously represented her in the same or a substantially related matter – a judge’s prior work experience may provide a cognizable basis for disqualfying that judge.

As for a judge’s “knowledge,” a litigant is entitled to have its case decided by a judge who can approach that case in an objective and impartial manner, and a judge who possesses personal knowledge of evidentiary facts that are in dispute in the case may not be able to meet this criterion. When a judge acquires this type of knowledge, both federal and state authorities, as well as the Code of Judicial Conduct, prescribe disqualification. Generally speaking, however, to provide a legally cognizable ground for disqualification the judge must actually have been exposed to relevant facts, of a kind that is not generally available to the public at large, and his knowledge must be of facts that are actually “in dispute.” Judges have rarely been disqualified for possessing this type of knowledge.

Recusal motions have sometimes been based on a judge having engaged in “ex parte communications,” which are usually either oral discussions about a pending proceeding between a judge and another that not all of the attorneys of record in that proceeding are present to hear, or written communications about such a proceeding that less than all the attorneys of record have contemporaneously received copies of. The mere fact that a judge has engaged in communications of this type does not necessarily show that he is biased; however, because it is generally agreed that whenever a judge initiates or entertains ex parte communications a question may reasonably be raised about his ability to be impartial in disposing of questions germane to the subject of such communications, it it ordinarily considered improper for a judge to engage in such communications during the course of a proceeding, except to the limited extent authorized by law. On occasion, courts have found that a judge’s ex parte communications were such as to warrant recusal of the judge who initiated or received those communications; often, however, the fact that a judge has engaged in ex parte communications, standing alone, has not been considered to be enough to compel such a drastic remedy.

References:

1. To review Canon 3 of the United States Code of Judicial Conduct, including the ex parte communication Canon (3A) and the disqualification Canon (3C) click here

2. To review a Supreme Court brief filed on behalf of the United States in 2001 in the high-profile Microsoft Corp. v. United State case, which raised a question as to whether the district judge’s contacts with the press warranted disqualification under 28 U.S.C. 455(a), click here

3. For a comprehensive overview of the grounds on which motions to disqualify state and federal judges have been made see chapters 3 through 15 of Flamm, R., Judicial Disqualification: Recusal and Disqualification of Judges (Second Edition 2007 and updated annually). The following chapters discuss various different grounds for seeking a judge’s disqualification:

Chapter 9 Gifts and Political Support
Chapter 10 Background/Experience
Chapter 11 Prior Work as a Lawyer
Chapter 12 Judicial Knowledge
Chapter 13 “ (Criminal Proceedings)
Chapter 14 Ex Parte Communications

To locate libraries near you which have the most recent edition of Judicial Disqualification in their collection click here