Judicial Disqualification Resource Center

Grounds for Recusal

Motions to recuse or disqualify judges and other adjudicators have been made for all sorts of reasons.  Most commonly such motions are predicated upon a claim that the judge is biased in favor of one party, or against another, or that a reasonable objective observer would think he might be.  But such motions are also made on many other grounds, including the challenged judge’s:

 

                     Interest in the subject matter, or relationship with someone who is interested in it

 

                     Background or experience, such as the judge’s prior work as a lawyer

 

                     Personal knowledge about the parties or the facts of the case

 

                     Ex parte communications with lawyers or non-lawyers

 

                     Rulings, comments or conduct

 

In some jurisdictions the ability of a judge to recuse himself is constrained by the so-called “duty to sit doctrine”.  According to this doctrine, unless a judge is required by law to disqualify himself he cannot simply choose to recuse himself, but must remain on the case.

 

In most American jurisdictions a judge may only be disqualified “for cause.”  In other words, a person who would like a new judge to preside over her case is required to show either that a basis for disqualification exists that is expressly enumerated in A disqualification statute; or that, for some other reason, a reasonable person would question the judge’s ability to be impartial in the case.  But many (mostly western and mid-western) jurisdictions have laws on the books which authorize parties to seek disqualification on a “peremptory” basis, without making any showing of cause.  This is referred to as “peremptory disqualification,” or making a “peremptory challenge” .  In such jurisdictions, as long as the challenge is timely filed, and the prescribed procedure is complied with, the judge has no discretion to determine whether he should recuse himself; rather, he is disqualified automatically.

 

 

REFERENCES

 

1.         Leslie Abramson, of the Louis Brandeis School of Law at the University of Louisville wrote an early (1993) article on the grounds for judicial disqualification (in federal practice). See Abramson, L., Specifying Grounds for Judicial Disqualification in Federal Courts, Nebraska Law Review, Vol. 72, No. 1046 (1993).  Professor Abramson continues to work and teach in the field. See, e.g. “Deciding Recusal Motions: Who Judges the Judges?

 

2.         For a detailed discussion of the duty to sit doctrine see J. Stemple, “Chief William’s Ghost: “The Problematic Persistence of the Duty to Sit,” Buffalo Law Review, 57 Buffalo L. Rev. 813 (May 2009).

 

3.         For a listing of Judicial Policy Advisory Opinions, many of which deal with the subject of when a federal judge is subject to recusal or disqualification click here  http://www.uscourts.gov/uscourts/RulesAndPolicies/conduct/Vol02B-Ch02.pdf

 

4.         For a book that contains a comprehensive overview of the various grounds on which motions to disqualify judges have been made, and which is updated annually, see Flamm, R., Judicial Disqualification: Recusal and Disqualification of Judges (Second Edition, 2007)   Those chapters of that book which discuss the case law with regards to the grounds for disqualification are listed here:

 

 

Chapter 3     Bias                                                            

Chapter 4     Extrajudicial Source Rule          

Chapter 5     An Appearance of Bias

Chapter 6     Interest

Chapter 7     Family Relationships

Chapter 8     Social Relationships

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  

Chapter 15     Judicial Conduct         

Chapter 16     Rulings/Comments                 

 

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