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Judges not required to report recusals, reasons for stepping aside

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Judicial recusals are a serious topic, but Indiana law professor Charles Geyh can’t help but wonder how much lawyers and the public really know about requests and reasons for judges to step away from a case.

He recalled an actual case in which a litigant or lawyer sought recusal because the judge had chased him around the courtroom with a baseball bat. The jurist had two basic choices: to rule the motion has merit and warrants recusal, or to question the motion’s truthfulness and opt against stepping aside.
 

Charles Geyh Geyh

Nothing like that has happened here in Indiana, but the Indiana University Maurer School of Law – Bloomington professor wonders if that did happen here whether the judge would even have to acknowledge that situation when handing the case off or deciding to keep it. The state does not specifically track recusals in order to know how often they are happening and provide the legal community a full picture of recusal decisions from those on the bench.

Largely it’s a matter of trust, and the judges are expected to abide by judicial canons that require them to always remain impartial and avoid potential conflicts.

“Those big recusal cases serve as exclamation points for the idea that judges are people, too,” said Geyh, who is associate dean of research and a national expert on judicial ethics and recusal. “While the cases may be on the outer edges of what’s actually happening, they do raise a basic fundamental issue the judiciary should always be thinking about.”

Statewide recusals

While most recusal requests arise at the trial level, some do come up at the appellate stage for justices and judges who might have some personal involvement or interest in a case. Though not very common, the most common recusals involve appellate judges who’d ruled on a case as a trial judge before it reaches the higher court, or judges who’d worked as a lawyer on a case or with a firm handling that matter.

Supreme Court spokeswoman Kathryn Dolan said neither the court nor appellate clerk’s office officially tracks recusal data, and the judges and justices aren’t required to specifically outline if they are stepping aside or what reasons may exist for a recusal.

Annual reports show a category for “recusal opinions” in the tables breaking down the court’s caseload each year, but those figures mark when a justice actually wrote an opinion on a case about why he had recused himself. The reports for the past decade show that only Justice Robert Rucker had done that on a case in the 2002-03 term, but details of that appeal weren’t immediately available through the appellate court.

The state’s Judicial Code of Conduct, largely based on the American Bar Association’s model code, includes a particular provision – Rule 2.11 – dealing with disqualification. Commentary for the rule says a judge is disqualified whenever his or her impartiality might reasonably be questioned, and that a judge’s obligation not to hear or decide those matters applies whether a motion to disqualify is filed. One provision instructs judges to disclose on the record any information that the parties might reasonably consider relevant to a possible motion for disqualification, even if the judge believes no basis exists for recusal.


Randall Shepard Shepard

At the appellate level, the issue has come up periodically through the years. A lawyer in 2008 wanted Chief Justice Randall Shepard to recuse himself on a case about a township fire district merger because of his past work on a local government reform committee that recommended merging more of those fire departments statewide. He chose to not participate. Another issue was a famous Indiana Court of Appeals case about public records involving the Indiana University Foundation, which the judicial panel members were a part of or had contributed to. They entered an order disclosing those facts and gave the parties a chance to seek new judges, but no one asked for them to step aside.

Most recently, the recusal topic came up when Justice Frank Sullivan recused himself from an appeal involving the state Medicaid system and the Indiana Family and Social Services Administration. In an Aug. 31 per curiam opinion in Anne W. Murphy, et al. v. Jannis Fisher, et al., No. 49S02-1008-CV-463, a line at the end of the opinion simply notes that Justice Sullivan didn’t participate in the case that was first filed in 1992 by Medicaid recipients and providers because of high transportation costs.

After at least one media inquiry about his non-participation, Justice Sullivan filed an entry Sept. 1 about the case on why he hadn’t participated. Dolan said that entry wasn’t a requirement but a personal decision by Justice Sullivan.

“A question has been raised as to why I did not participate in the decision,” his entry states. “My wife, Cheryl G. Sullivan, is a predecessor to Anne W. Murphy as Secretary of the Indiana Family and Social Services Administration and the facts suggest that certain events relating to this litigation took place during her tenure.”

However, the entry didn’t mention the justice’s personal background as legal counsel for Gov. Evan Bayh in the early 1990s, when he was a part of an administration that implemented Medicaid reforms in the state that led to lower transportation rates – an issue central to this particular appeal.

Outside of anecdotal information or specific knowledge of past recusal situations, Dolan said there isn’t a way to pinpoint how often these types of issues arise at the appellate courts. She said anyone not participating in a case doesn’t sit in any oral argument or conference discussion on the case, nor does that person make any comment on opinions throughout the appeal.

“That is not common,” Chief Justice Shepard said about recusals on the high court. “But there’s a common understanding between the five of us of what it means, and we don’t necessarily have to be privy to the relationships. Over time, some have explained the grounds (for recusal), but mostly they haven’t. The main reason why that’s the prevailing practice is because you’d rather not run the risk of influencing others on what led you to recuse yourself.”

For example, the chief justice posed a hypothetical situation where a justice’s niece or nephew with a different last name is a litigant and he or she chooses to step aside. That justice might choose not to release that full knowledge to the four participating judges so that they might look differently at the case, knowing a party is related to one of their fellow justices.

Now, when a justice recuses himself, that case is moved to the end of the agenda so that the disqualified justice doesn’t have to sit through discussions and can just leave the room.

“We do alter these practices from time to time, and we’re always looking at what might be done differently,” the chief justice said, noting that a recent ABA report on recusal rules might lead to more changes in the future.

He also acknowledged that recusals can be used as a strategic move by litigants or lawyers

“You find occasions where people try to use ethical rules as a tactical advantage,” he said, citing a Wabash County case from more than a decade ago in which a party decided it was clear that naming a judge as a defendant was a clear way of getting a new judge assigned. “You have to be aware of those issues, too, and know what you’re supposed to do and what you can’t let people do.”

Lack of recusal tracking nationally

Much like Indiana’s state courts, the federal judiciary doesn’t require recusals and doesn’t specifically track that data, according to the Virginia-based National Center for State Courts. Judicial canons address the issues and encourage judicial review of their own conduct, but there isn’t any specific guidance about when that should happen and it’s largely left up to the individual judge or court system.

In the Southern District of Indiana, Clerk Laura Briggs said once a federal judge decides to recuse him or herself an order of recusal may be issued to parties and 28 USC § 455 governing recusals can be cited, but the party or situation warranting recusal isn’t necessarily detailed. Judges can also prepare a memorandum for reassignment pursuant to local rules, but the specific reassignment reason isn’t required.

Following the landmark case last year in Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252, legal experts across the country speculated that courts would see a flood of recusal motions after the Supreme Court of the United States ordered a West Virginia Supreme Court justice to recuse himself on an appeal in which a litigant had previously contributed a large amount to his judicial election campaign for the state’s high court. But that didn’t happen, even though a handful of states in the meantime have re-examined their judicial canons and recusal rules.

Congress waded into that area, too. The House Judiciary Committee’s Subcommittee on Courts and Competition Policy late last year conducted a hearing on the issue and invited judges and legal experts – including Geyh – to talk about the issue.

Among the proposals being discussed are requiring a second judge to rule on a recusal motion – rather than leaving the motion to the “targeted” judge ­– and making substitution automatic if any party to a case swears an affidavit alleging prejudice. Some lawmakers have also said they want a system to review recusal decisions by SCOTUS justices.

The federal law setting out a standard for when a judge must recuse has remained largely the same since 1974, when it was modeled on an ABA proposal. A separate law that dates to 1949 says that a judge “shall proceed no further” in a case if a party files an affidavit alleging bias, but that’s not how it works practically.

Geyh testified that it’s essentially a “dead letter law” because under the current system judges get to decide on their own whether to disqualify themselves from cases. Basically, judges accused of being partial are being asked to “grade his or her own paper” and that presents a conflict, Geyh said.

“What we’re looking at is a conflict between the ethos of judging and the ethos of disqualification,” Geyh said. “The ethos of judging assumes the judge is impartial. The rules require judges to be impartial and to act to promote the perception of being impartial, and they must avoid even the appearance of impropriety. The ethos of disqualification is this notion … judges are people, too; they are subject to the same prejudices as the rest of us. When they say they are talking about the law, they are really talking about their background and their politics.”•
 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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