The Pennsylvania Supreme Court recently signaled that it is going to be taking a much closer look at how trial court judges handle themselves and not hesitate to remove them from cases if there’s a question about their impartiality.
In a pair of cases — one criminal, the other stemming from a custody dispute — the court ordered trial court judges to recuse themselves because of how they acted and the questions the behavior raised.
I’ve rarely seen the court do this. In my experience, to have the court do it twice within two days signals a trend. Having studied the opinions, it seems clear to me that moving forward the justices are going to take a long hard look when a judge’s impartiality is questioned, and when judges refuse to recuse themselves.
It’s a trend everyone should welcome.
In the first case, the state Supreme Court ordered the recusal of the only two elected common pleas court judges in Clinton County in a case in which a mother’s parental rights over her 9-year-old daughter were terminated.
The case involved the mother’s allegation that Clinton County Common Pleas Court President Judge J. Michael Williamson was biased against her during the custody proceedings because the judge considered an ex parte letter from the father renewing the allegation of sexual abuse; the judge ignored warnings from CYS that the sex abuse allegations were false; and that he advised the father to have the mother jailed “‘the next time you find her in Clinton County’” because of the mother’s alleged failure to pay child support, according to Justice Max Baer’s opinion.
Williamson’s actions showed an appearance of impropriety and an “apparent antagonism towards mother,” Baer said.
The court also ordered the recusal of fellow Clinton County Common Pleas Court Judge Craig P. Miller, who considered the involuntary termination proceedings, because Miller did not address the mother’s allegations of bias by Williamson. Miller ruled that the mother had abandoned the girl for six months and she was mistaken that Williamson was biased against her, Baer said.
What is very telling about the court’s decision in that case is that the issue of recusal wasn’t before the court. The justices decided on their own, given the facts in the case, that recusal was warranted. That’s significant because parties usually have little recourse when a judge refuses to recuse.
In the criminal case, the Supreme Court ordered the recusal of Philadelphia Common Pleas Court Judge Renee Cardwell Hughes after she ordered a court reporter to alter the transcript of a defendant’s Post Conviction Relief Act hearing.
According to a concurring statement by Baer, Hughes called the defendant “‘vile’” during his PCRA hearing. But when the defendant’s counsel reviewed the transcript for the February 2008 hearing, that remark was not transcribed.
When the defendant’s attorney raised the issue, Hughes scheduled another hearing and acknowledged in the hearing that she had “privately directed the court reporter to remove various comments from the record, which she deemed ‘non-judicial,’” Baer said.
“To alter a record is to strike at the very pillars of meaningful appellate review, and concomitantly therewith, the basic tenets of due process,” Baer said. “It is my opinion that a judge’s extraordinary action in altering the official record of judicial proceedings, regardless of any protested justification, should precipitate serious repercussions.”
But if that wasn’t enough, when the defendant’s counsel asked Hughes to recuse herself, she lambasted the attorney. Baer cited portions of the transcript from that hearing in which Hughes told the lawyer she was “‘grossly offended’” and said, “‘Don’t you [dare], as long as you live, question my integrity.’”
Baer said there was no excuse for altering the transcript and that to attack the lawyer for requesting recusal was “obviously inappropriate.”
From talking to lawyers over the years, I don’t think it’s a stretch to say that a number of judges view a request for recusal as a question of their integrity, whether they say it or not. Certainly many attorneys have admitted to me that they’ve shied away from asking for a judge’s recusal for fear that the judge would react the way Hughes did.
An interesting footnote to that case is that Baer was joined in his concurrence by Justice Seamus McCaffery. Hughes sits on an advisory panel chaired by McCaffery that is advising the high court on ways to improve Philadelphia’s criminal justice system. McCaffery and the court did the right thing in ordering her recusal, even though she had a relatively high profile.
It’s significant that Baer was so outspoken in both cases. The easier thing would have been to take a more clinical approach and reverse the lower courts and order the recusals with little discussion.
Over the past year or so, I’ve come to view Baer as a good gauge of where the court is going on legal issues. Even if Baer didn’t intend to send a message with the opinions, judges and lawyers would be wise to view them that way. I think Baer’s opinions are a strong indication the Supreme Court isn’t going to hesitate to wade into these waters again.
I spoke with Shira Goodman, deputy director of Pennsylvanians for Modern Courts, about the cases and she described the opinions as “not a bad development at all.”
“This also highlights that sometimes it shouldn’t only be the judge who decides if recusal is necessary, and that the issue can be reviewable,” she said.
Goodman said the opinions could be an indication that the court is going to look at the issue of recusal more broadly. She pointed out that she thought it was significant that the Supreme Court decided the recusal issue sua sponte in the Clinton County case.
By the way, none of this is intended to pick on the judges in these underlying cases. Everyone has a bad day, we all say stuff at times we shouldn’t and we all have our blind spots. What’s important here is that the Supreme Court didn’t ignore or try to sidestep the issue, but tackled it head-on.
In both of his opinions, Baer cited a court decision overturning a defamation verdict from Luzerne County as a result of the judicial scandal there. That suggests to me that the lessons of the Luzerne County judicial scandal are not lost on Pennsylvania’s highest court.
In the past I’ve criticized the court for being tone deaf regarding appearance problems. These two recent instances give me hope that the justices are finally coming around and being vigilant regarding the issue. •
Hank Grezlak is the editor-in-chief of The Legal Intelligencer. He may be contacted at 215-557-2486, or by e-mail at email@example.com.