Current Disqualification Issues

By Gray, Cynthia | Judicature, July/August 2008 | Go to article overview

Current Disqualification Issues


Gray, Cynthia, Judicature


An edited transcript of the American Judicature Society annual meeting program on August 10, 2007

Participants

Sherri R. Carter, District Court Executive and Court Clerk, U.S. District Court for the Central District of California.

Honorable Julie Conger, Superior Court of California of Alameda County.

Cynthia Gray, Director, American Judicature Society Center for Judicial Ethics (moderator)

Seth Andersen: I'm the Executive Vice President of the American Judicature Society. On behalf of AJS, I welcome you to our 2007 Annual Meeting program.

Judicial disqualification issues are receiving considerable attention nationwide, particularly in the wake of the U.S. Supreme Court's decision in Republican Party of Minnesota v. White and its progeny of federal and state decisions regarding judicial candidate speech. Our program today will examine the need for greater effectiveness and transparency in judicial disqualification practices. Our panel of experts will discuss practical steps that can be taken to ensure the appearance and the reality of judicial impartiality.

Cynthia Gray: The idea of an impartial judge is something everyone can agree with. Every judge wants to be impartial and to appear to be impartial, and every litigant wants a judge who is impartial and appears to be impartial.

There are two terms that get used a lot, "recusal" or "recuse" and "disqualify" or "disqualification." Technically, in some jurisdictions, there is a difference. "Recuse" is when the judge voluntarily steps aside from the case. "Disqualify" is when there is a disqualifying factor in the case, like the judge's daughter being an attorney. For purposes of this discussion, we are going to use both terms interchangeably. The differences are blurry, and people usually use them interchangeably. When the ABA adopted the revised model code in 2007, it decided to use the word "disqualification" to apply to all circumstances rather than trying to distinguish between those two terms.

As important as an impartial judge is-and it is a due process requirement-there are some countervailing considerations. One is that litigants and attorneys are not allowed to judge-shop. They are stuck with whomever they get in the random assignment process absent a disqualifying basis, and we don't allow litigants to run through the roster until they get a judge that is making decisions that they want.

There are also, of course, administrative issues involved when judges take themselves off a case. It has to be reassigned to another judge, and, after a certain point, it may be after a lot of proceedings have taken place. To start a case all over again before a new judge can delay the process and cause hardship for the litigants on both sides.

There were a couple of issues that came up in the last year or six months that suggested to me that this would be a good topic for discussion.

One was in September 2006 when the United States Judicial Conference released a policy requiring all federal courts to have a conflict checking computer program. This was prompted, in part, because every once in awhile, a reporter somewhere would decide to look at judges' financial disclosure records to see where they own stock and then compare it with a judge's case load to see if there were ever a conflict, where a judge owned stock in a party and presided over a case involving that party. They almost always found at least one or two instances in a particular jurisdiction, and they'd publish it. The judge's response was usually, "well, I forgot," "I didn't know I owned that," et cetera. The rule in the federal courts is that a judge is required to disqualify from the case if the judge owns even one piece of stock in a party. So, the U.S. Judicial Conference adopted this conflict checking policy as a response to those sorts of issues.

Second, last week, there was a newspaper headline in Wisconsin, "Justice Sworn in Under a Cloud," referring to Justice Annette Ziegler, a new justice of the Wisconsin Supreme Court. …

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