Survey of Hawaii Judges Explores Disqualification and Recusal Issues

Article excerpt

In June 2006, the Hawaii Chapter of the American Judicature Society convened the Special Committee on the Judiciary, Lawyers and the Issue of Conflicts in the Judicial System. The 15-member committee, which included five judges from different Hawaii courts,1 wished to explore topics such as:

* Whether existing disqualification rules and procedures adequately serve the interests of litigants and the public.2

* How frequently judges are removed from cases or motions.

* What proportion of removals results from disqualification motions, and what proportion is initiated by the judges.

* The most frequent reasons for judicial recusal or disqualification.

* Whether existing disqualification standards provide adequate guidance to judges.

* Whether judges routinely apply personal standards or practices, in addition to formal disqualification rules.

* Whether filing a disqualification motion is likely to have a negative effect on parties or their lawyers.

* Whether judges, lawyers, and litigants believe that judges' personal relationships and biases affect judicial decisions.

* Whether attorneys and litigants seek disqualification for inappropriate reasons.

The committee quickly discovered that information on these topics was largely anecdotal, and therefore decided to survey all Hawaii judges to seek more direct information.

The survey

The committee mailed the survey to all 139 Hawaii-based federal and state judges in December 2006. Recipients included the five justices of the Hawaii Supreme Court; the six judges of the Hawaii Intermediate Court of Appeals; 33 judges serving in Hawaii circuit courts (Hawaii's courts of general jurisdiction); and 36 full-time judges of Hawaii district courts or district family courts. (The Hawaii district courts are the first tier of state trial courts. They have limited civil and criminal jurisdiction, and do not conduct jury trials.) In addition, the survey was mailed to 48 per diem (part-time) state judges. One judge of the United States Court of Appeals for the Ninth Circuit and 10 federal trial judges (four active district judges, two senior district judges, three magistrate judges, and one bankruptcy judge) received the survey. One hundred eight state and federal judges responded (78 percent).

The survey was drafted by the committee. It was administered and the results were compiled by the Center on the Family of the University of Hawaii. All information was collected anonymously. However, the survey asked respondents whether they were trial or appellate judges, whether they were full-time or per diem judges, and how many years they had served as judges. This information makes it possible to compare responses from various categories of judges.

Terminology. The survey uses "recusal" to mean removal on the judge's own initiative, "disqualification" to mean removal due to a disqualification motion, and "removal" to cover both recusal and disqualification.

Caveats. First, the survey results are subjective. The responses reflect judges' opinions, impressions, and recollections, rather than statistics obtained from administrative records.

Second, the survey results showed that a substantial minority (31 percent) of judges participate in automatic recusal systems, under which judges inform court personnel in advance that cases involving certain parties or attorneys should not be assigned to them. In some automatic recusal systems, judges do not know cases have not been assigned to them because of these advance designations. Hence, responses from judges participating in those systems may not reflect all recusals.

Third, judges included in the survey had a very broad range of responsibilities and experience. Different courtroom responsibilities and environments can obviously lead to different disqualification issues.

Results

The 108 survey responses indicate Hawaii judges do not view judicial conflicts or disqualification rules as significant problems. …