judge-and-gavel, book, readingThe scholarly Joel Cohen has written two articles: “Is Counsel ‘Obligated’ to seek a Judge’s Recusal?” (June 13, 2017) and “How Do We Judge the Judges?” (April 4, 2018). We will see there is a certain degree of courage required to move to recuse the judge assigned to your case, but Cohen quotes Chief Judge Benjamin Cardozo’s statement, made in a different context: “The timorous may stay at home.” Murphy v. Steeplechase Amusement, 250 N.Y. 479 (1979). A motion to recuse the judge, where there is sufficient cause, can lead to adverse and destructive consequences to the attorney-client relationship.

I have been involved in four motions to recuse. The last one is on appeal and we choose to withhold discussion of the reasoning, except to say that the court required a showing of actual bias.

A federal court can entertain a motion to recuse through a writ of mandamus. There was a feared federal district judge who traditionally would clear his calendar of criminal cases by the month preceding a given date so that he could visit with his daughter in Utica. He had decided to try a difficult multi-defendant narcotic case one month after the defendants were arraigned and the case was assigned to him. He would broach no request to extend the date. I brought on a writ in the U.S. Court of Appeals, and a week later came into his courtroom for a calendar conference, not knowing whether the writ had been granted or denied. I took the elevator to the courtroom and the judge said, “Your writ of mandamus was denied, but you can pick any date you want for the trial.” I immediately went to the clerk’s office at the Court of Appeals, requisitioned the file and read the disposition by a majority of the court: “The motion for a writ delaying the trial is denied.” But there was a dissent by the Hon. James L. Oakes: “I would grant the writ. While expedition in the trial of a criminal case is a laudable goal, justice is still our main business.” Obviously the trial judge was concerned, lest I were to find an additional ally at the time the appeal was decided following almost certain conviction. As a result, the trial judge softened his approach. I promptly pleaded the defendant guilty. The court rewarded the defendant (and me) with an extremely light sentence. Here, courage paid off, but as I earlier alluded to, motions to recuse can often be destructive to the attorney-client relationship.

Several years ago I made a motion to recuse a judge who harbored outspoken hostility for the defendant and said in chambers to my fellow co-counsel, whom he personally knew, that he would never rule in favor of my client since he had a longstanding and abiding hostility towards him. Learning of this, I made a motion to recuse the judge. The judge granted the motion. But would my client receive an impartial trial in this non-jury case? The answer, quite clearly, was that when the successor judge assumed the place of the outgoing judge, the recused judge obviously told the successor judge demeaning things about me and the case I was presenting, with much the same language as the judge before whom the recusal motion earlier had been made. We are told judges are human, and what follows is certainly proof of the principle. “It is often exceptionally difficult, if not wholly impossible, to present conclusive proof that a judge is subjectively biased. Indeed, it is extraordinarily rare for a judge to acknowledge that he harbors a bias against a litigant.” Caperton v. A.T. Massey Coal Company, 556 U.S. 868, 883-84 (2009). Often anger or hostility results on the part of the outgoing judge.

What is the effect on an innocent client who seeks only to have a fair trial? Should the attorney be the center of attention with spillover prejudice to the client? What is the attorney’s responsibility? Should he not advise the client that he or she is more likely to get a fair trial with other counsel? It won’t take long for the client who actually pushed for the recusal motion, to claim, real or imagined, that the motion was the cause of all of his problems. It is no answer to say, “but you made me do it.”

A party has a right to an impartial tribunal, whether it be a criminal, quasi criminal or civil case—an impartial decision-maker is an essential right. The neutrality requirement helps to guarantee that life, liberty or property will not be taken on the basis of an erroneous, biased or distorted conception of the facts or the law, by reason of hostility towards counsel. Tumey v. Ohio, 273 U.S. 510, 523 (1927); In re Murchison, 349 U.S. 133, 136 (1955).

Perhaps counsel will consider a writ of mandamus before the trial. However, the Appellate Division has held that barring a Judiciary Law §14 statutory disqualification (a judge cannot be a party, cannot have been an attorney for a party, cannot have an interest in the case, and cannot be related to a party), it will not entertain a motion seeking the judge’s disqualification for any other reason, finding that mandamus is not available when there are other “adequate remedies at law by which to seek the retroactive disqualification of the judge.” Kyle v. Lebovits, 58 A.D.3d 521 (1st Dep’t 2009). What can your client do?

The presence of a particular lawyer should not work to disadvantage the client. But, once the successor judge tells the incoming judge of how “off-base” the motion to recuse had been made, the incoming judge harbors an unreasonable degree of prejudice towards the moving party’s recusal motion, and of course the attorney who would cast public approbation as to the honor of the outgoing judge. What follows are often decisions that lead the client to believe that the motion was ill conceived, but then again, if the motion had not been made, the client would harbor hostility for the “weakness” of his attorney.

It is too simple to say that the “timorous may stay at home.” The presence of a particular lawyer should not work to the disadvantage of a client. Often the only alternative is to have the attorney withdraw from the case.

In summary, if you prevail on the motion to recuse, the outgoing judge will “muddy the waters” by conversations with the incoming judge. The problem is worse still if you make a motion to recuse and it is denied. The client will urge you to make such a motion, believing that he will not prevail with the judicial officer assigned to the case. With a negative decision, the client will bemoan the fact that this result is “because of you.” A motion to recuse can most often lead the client to believe that he perhaps would have won the case had it not been for you.

What of your client’s appellate rights? Can you get a speedy determination as to the bona fides of your claim? Review is prompt as part of the appeal to the Appellate Division, but this is after what could be a lengthy trial. The court will not entertain a writ of mandamus seeking a judge’s disqualification pretrial on the ground of bias and the like, holding that mandamus is not available where there are other remedies set by law by which to seek the retroactive disqualification of a judge and the vacation of his determinations. Karger, The Powers of the New York Court of Appeals §10:6 (3d. ed., 2005). Still you have to sit through a trial. Thoroughly upsetting is the fact that the Court of Appeals will rule that the appeal to it is premature because judgment has not been entered, and the court will not review non-final judgments.

Let us take a journey with respect to the law on recusal. It is not so easy to understand.

A Concise Statement of Recusal Law

Federal law interpretation of the Due Process Clause with respect to recusal. One cannot embark on a study of recusal without considering the Supreme Court case of Caperton, 556 U.S. 868 (2009). Caperton was an example of an extreme case, so much so, that during argument Justice John Stevens so stated. Quite the opposite, Chief Justice John Roberts, speaking for himself, Justice Samuel Alito, and Justice Clarence Thomas, and in a separate dissent, Justice Antonin Scalia, found that it was truly an extreme case, but one that warranted a completely different result.

Massey was the company that owned the largest coal mines in West Virginia. Caperton purchased a productive mine in West Virginia. Massey, a competitor, purchased Caperton’s chief customer, intending it to purchase Massey’s own inferior coal. Massey used his influence to pressure Caperton to negotiate the sale of his mine, but scuttled it before closing. Caperton filed for bankruptcy, and sued Massey for tortious interference, misrepresentation, civil conspiracy and punitive damages. The trial court found that Massey had acted in bad faith to intentionally harm Caperton, and returned a $50 million verdict.

Before Massey appealed to the West Virginia Supreme Court of Appeals, the state conducted a judicial election. Massey supported an obscure attorney, Benjamin, against the incumbent. Through a series of donations to named organizations, Massey contributed millions of dollars in support of Benjamin’s election. Benjamin won the election. Following submission of the appeal, the Supreme Court of Appeals decided, in a 3-2 decision, with Benjamin voting with the majority, to overturn the jury’s verdict on grounds that the lower court erred in disregarding a forum selection clause and the preclusive effect of early litigation. Caperton moved to disqualify Benjamin and another justice on a motion for rehearing. In Benjamin’s concurrence with the majority, he wrote that he would step aside only if due process itself commanded it, and he represented that he was not biased and that concluded the matter. Benjamin was correct in his view that due process did not require his recusal. However, he was wrong in holding that this was the limit of his need for recusal. “The Supreme Court 2008 Term—Comments,” 23 Harvard Law Review 73 (2009).

A judge’s personal bias for or against a party is not enough to require recusal under the Due Process Clause, wrote Justice Anthony Kennedy for a five justice majority: “There is a serious risk of actual bias—based upon objective and reasonable perceptions—when a person with a personal stake in a particular case has a significant and disproportionate influence in placing the judge on the case, by raising funds or directing the judge’s election campaign when the case was pending or imminent.” Caperton, supra; see also Tumey, supra; Winthrop v. Larkin, 421 U.S. 35, 37 (1975); and Commonwealth Coatings Corp. v. Cont’l Cas. Co., 393 U.S. 145, 150 (1968). To fall within the Due Process Clause and rise to the level of violating due process, the judge must have a direct, personal, substantial, pecuniary interest. This means that in every other respect there is a presumption of honesty and integrity with respect to those serving as judges.

The Chief Justice, for himself and those joining with him, held over the years that the Due Process Clause did not require recusal for matters of kinship, personal bias, state policy, or remoteness of interests, for these grounds had to be dealt with by legislative direction. Tumey, supra at 523. The Chief wrote that the Due Process Clause did not require recusal for the probability or appearance of bias, friendship with a lawyer or party, prior employment experience, membership in clubs or associations, prior speeches and writings, religious affiliation, and countless other considerations. He wrote: “We have never held that the Due Process Clause requires recusal for any of these reasons, even though they could be viewed as presenting a probability of bias. State statutes may require recusal based on a probability of bias.” But, that is an insufficient basis for imposing a constitutional requirement under the Due Process Clause. States are free to adopt broader recusal rules than the Constitution requires, but the appearance of bias, subject to so many determinations that cannot be defined, is not incorporated into the Due Process Clause.

The Supreme Court in Williams v. Pennsylvania, 136 S.Ct. 1899 (2016), wrote:

Prior to this Court’s decision in Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009), we had declined to require judicial recusal under the Due Process Clause beyond defined situations. In Caperton, however, the Court adopted a new standard that requires recusal “when the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable.” Id., at 872, 129 S.Ct. 2252 (internal quotation marks omitted). The Court framed the inquiry as “whether, under a realistic appraisal of psychological tendencies and human weakness, the interest poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.” Id., at 883–884, 129 S.Ct. 2252 (internal quotation marks omitted).

Chief Justice Roberts took several pages of his opinion to set out a series of possible risks of actual bias, only to leave the reader to appreciate that the standard the court was applying was so vague as to lead to recusal under a host of circumstances. The appearance of bias standard was too vague and unusable as guidance for future cases, and it was not apparently limited to financial support in judicial elections, but applicable to judicial recusal questions more generally. It is, according to the Chief Justice, an abdication of the principle that recognizes that judges are there to provide justice in contested settings. Even though Blankenship’s expenditures were enormous, it was far from clear that his monies effected the outcome of the result. To expand disqualification to those cases where there is an appearance of bias would erode confidence in the judicial system.

39 of the 50 states have rules requiring recusal where there was an actual bias or an appearance of bias, but the remaining states handle recusal only on Due Process grounds, and that we have seen is limited at best.

Federal legislation required recusal where there was an appearance of bias. But, when it came time to review a case that originated in the state court, the Supreme Court held this was not a requirement of the Due Process Clause, but an act undertaken by a legislature or a judicial code. It seems so clear that there are occasions where a judge’s bias is shown that recusal must be the order of the day. However, motions brought under the Due Process Clause prior to Caperton would fail. See, e.g., People v. Glynn, 21 N.Y.3d 614 (2013). Still, it was not until 2009 that the Supreme Court held that the judge must recuse himsel or herself when the appearance of bias is so strong.

Despite the jousting over whether to apply the appearance of bias standard, Congress enacted the first recusal statute in 1948, 28 U.S.C. §455. The statute was amended many times, but it always carried forward the “appearance of bias” standard. It follows word for word the ABA Code for judicial conduct, requiring disqualification whenever a judge’s “impartiality might reasonably be questioned.” This applied an objective “reasonable man” standard for the old subjective “in the opinion of the judge” standard. Under §455(b), the judge must recuse himself if the statutory criteria exist, even if no motion has been introduced, and even if a reasonable person would not question the judge’s impartiality.

The second statute dealing with federal disqualification law was also passed in 1948, 28 U.S.C. §144. This allows for disqualification based on bias or prejudice alleged in an affidavit filed by a party, which is not found in the list of §455 motions. The great advantage of §144 is that the factual allegations will be deemed true, but the disadvantage is that the challenged judge will decide if the facts are legally sufficient. Disqualification motions under §144 are rare. §144 is directed solely at actual bias, while §455 covers specific instances of interest and appearance of bias.

In addition to the United States Code provisions as to disqualification of a federal judge, there is also a Code of Conduct for United States Judges. This Code was adopted in 1973 and has been revised a number of times since. The Code includes ethical canons that apply to federal judges and provide guidance as to their performance of official duties and engagement in a variety of outside activities.

In a mandamus brought in mid-2016, Lynn Tilton challenged the constitutionality of the SEC in-house judges. She hired attorneys from Gibson, Dunn and Crutcher. The lead lawyer was Theodore Olson, who represented the party that prevailed in Caperton. One of the judges from the panel in the Second Circuit that was to decide whether relief should be granted was Judge Sack, a highly respected member of the Second Circuit. Judge’s Newman and Droney made up the panel. Judge Sack was a member of the Gibson firm from 1986 to 1998. He never worked with Theodore Olson or the other members of the Gibson team. The wasn’t any proof of a relationship with members of the Gibson firm from 1998 on, and in fact Judge Sack had never handled any matter with Theodore Olson. The court was faced with the code of conduct for U.S. District Judges, which stated that a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned (the appearance of bias to the reasonable man). There was no claim that Judge Sack had any bias, but an advisory opinion from the Code of Judicial Conduct was to the effect that judges were permitted to have a self-imposed automatic rule of disqualification for a number of years after leaving their law firm, where the firm is a litigant. It recommends a recusal period of at least two years, but leaves it to the presiding judge to determine if a longer period is needed in order to avoid the appearance of impropriety.

As a result of this, the members of the Gibson firm were ordered disqualified, but of more importance, Judge Sack disqualified himself. He relied on In re Federal Communications Commission, 208 F.3d 137 (2000). Showing such sensitivity on the part of federal judges to the need to insulate them from the appearance of bias was discussed fully by the excellent Supreme Court reporter Marsha Coyle, published in the New York Law Journal on July 15, 2016.

New York State Law Interpretation of the Due Process Clause With Respect to Recusal. As we have noted, there is a statutory prohibition where the judge has a direct pecuniary interest in the outcome (for example, the judge cannot sit in a case where he/she is interested or related to a party by consanguinity within the sixth degree (Judiciary Law §14)). New York provides for expansive grounds to disqualify a judge truly believed to be biased. The expansive language of the New York state constitutional guarantee, its formulation and adoption, is consistent with the tradition in this state of providing the broadest possible protection to the sensitive role that would call for an impartial tribunal. People v. Garson, 6 N.Y.3d 604 (2006). And so, we turn to the New York state formulation, which is found in the State Code Governing Judicial Conduct, particularly 22 N.Y.C.R.R. §§100.2, 100.2(A), and 100.3(E)(1).

The Committee on Judicial Ethics responds to questions from judicial officers. These opinions interpret the Rules Governing Judicial Conduct, 22 N.Y.C.R.R. Part 100. The Committee consists of 27 current and retired judges, whose purpose is to provide justice in our society

According to 22 N.Y.C.R.R. Part 100, a judge must always avoid even the appearance of impropriety and act in a way to promote public confidence in the judiciary’s integrity and impartiality. A judge or justice must disqualify himself or herself in any case where the judge’s impartiality “might reasonably be questioned,” including if the judge knows he/she has an economic interest in a party to the case or any other interest that could be substantially affected by the proceeding. The courts read these principles thusly: if a reasonable person knowing the facts would question whether the judge might be partial, then disqualification is required. There need be no showing of actual prejudice as there is where there is a claim that the participation of the judge would violate Section 14 of the Judiciary Law. Both sections do not leave the matter to the discretion of the judge.

The language of 22 N.Y.C.R.R. Part 100 mandates (“shall”) recusal. When presenting a motion, there is a risk of framing it as warranted by Due Process or running the risk of needed self-recusal if there be a claim under §14 of the Judiciary Law. Whatever may be the importance of the holding in Caperton, the New York courts have held that the provisions of 22 N.Y.C.R.R. Part 100 are constitutionally mandated.

The Net Effect of Moving to Disqualify a Judge

A motion to recuse is a risky matter. In many ways it is unfortunate that one has to embark on this road where the client is likely to accuse the lawyer of being responsible for how badly he perceives he was treated, even though the client often will be the motivating force behind the motion and accuse the lawyer if no motion had been made of being “timorous.”

Much as there is an abhorrence of in camera proceedings and not sealing documents, a motion to recuse should be sealed, and so too, the opposing papers. The minutes on argument should be sealed. The Chief Administrative Judge should promulgate a rule prohibiting judges from talking about a motion to recuse, if it is denied, and order that if granted, the recused judge make no comment whatsoever to the successor judge as to the merits or lack thereof, of the motion or the moving attorney.

Of course, little can be done with respect to the New York Court of Appeals, which will not review the propriety of a motion to recuse until the final judgment has been entered. That is, most respectfully, a rule that cannot stand given the natural consequences of having to proceed to pretrial discovery and the trial itself before review of a motion to disqualify a judge or justice. Practically speaking, the CPLR should be changed to provide a remedy—by the submission to a single justice—for leave to appeal to the Court of Appeals from the denial of a motion to recuse brought before the trial justice presiding and the Appellate Division.

Jay Goldberg was appointed by Attorney General Robert F. Kennedy as acting U.S. Attorney for the Northwest District of Indiana. He served as Special Attorney and counselor to the U.S. Department of Justice and as an assistant District Attorney, New York County. Attorney Alex S. Huot contributed to the publication of this article.