A look at the extrajudicial source doctrine under 28 U.S.C. s. 455.

• Author: Citera, Toni-Ann
• Position: Supreme Court Review - Case Note

1. INTRODUCTION

   In Liteky v. United States,(1) the United States Supreme Court held that 28 U.S.C. [sections] 455(a), which provides that a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned," is subject to the limitation of the extrajudicial source doctrine.(2) The Court determined that the absence of the word "personal" in [sections] 455(a) does not preclude the doctrine's application. In reaching this conclusion, the Court reasoned that the textual basis for the application of the doctrine to [sections] 455(a) is the pejorative connotation of the words "bias or prejudice," which indicates a predisposition that is wrongful or inappropriate.(3) According to the Court, however, the extrajudicial source doctrine is not a per se rule and, thus, is neither a necessary nor a sufficient condition for recusal.(4) Instead, the source of bias is one factor a judge should consider in recusal.(5) Applying this holding to the facts of the case, the Court found that the judge did not have to recuse himself, since the grounds that petitioner asserted were best characterized as the judge's attempts at routine trial administration.(6)

   This Note argues that the Court, by subjecting [sections] 455(a) to the limitation of the extrajudicial source doctrine, ignored the plain language and the legislative history of this statue. After examining the history of the 1974 amendments to [sections] 455 and the split in the circuits deciding this issue, this Note examines the inconsistencies in the Court's decision. Although Justice Kennedy's concurrence is better reasoned than the majority opinion, this Note diverges from the concurrence as well. Finally, this Note proposes that the standard for all allegations of an apparent fixed predisposition, extrajudicial or otherwise, follows from the statute itself: whether the charge of lack of impartiality is grounded in facts that would create a reasonable doubt concerning the judge's impartiality, not in the mind of the judge, or the litigant filing the motion under 28 U.S.C. [sections] 455, but rather in the mind of a detached, objective observer.(7)

2. BACKGROUND

   1. THE HISTORY OF [sections] 455(a)

      Prior to 1974, [sections] 455 required a federal judge to disqualify himself:

      in any case in which he has a substantial interest, has been of counsel, is or has been a material witness, or is so related to or connected with any party or his attorney as to render it improper, in his opinion, for him to sit on the trial, appeal, or other proceedings therein.(8)

      In 1974, responding to certain circuits' articulation of a "duty to sit"(9) in close cases, and criticism of [sections] 455's subjectiveness, Congress amended [sections] 455.(10)

      In amending [sections] 455, Congress adopted the American Bar Association's Code of Judicial Conduct (ABA Code), Canon 3C, with only minor changes.(11) As explicitly noted in the legislative history of [sections] 455, Congress' objectives in adopting Canon 3C were to: (1) conform [sections] 455 to the ABA Code; (2) increase public confidence in the impartiality of the judiciary by replacing the subjective standard of the former [sections] 455 with an objective standard; and (3) eradicate the "duty to sit."(12)

      In keeping with these objectives, Congress attempted to "broaden and clarify the grounds for judicial disqualification."(13) The current [sections] 455 contains two subsections where recusal may be appropriate. Subsection (a) establishes the general standard for disqualification. It provides that any judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."(14) The legislature incorporated an objective standard in [sections] 455(a) for measuring the appearance of partiality "to promote public confidence in the impartiality of the judicial process by saying, in effect, if there is a reasonable factual basis for doubting the judge's impartiality, he should disqualify himself and let another judge preside over the case."(15) Furthermore, by making disqualification mandatory whenever a judge's "impartiality might reasonably be questioned," the amendment eradicated the duty-to-sit.(16) In this manner, the changes to [sections] 455 codified each of Congress' stated objectives. Apart from the objective standard of [sections] 455(a), [sections] 455(b) enumerates specific circumstances, which if present, require a judge to recuse himself.(17)

   2. COMPARISON OF [sections] 455 WITH [sections] 144

      28 U.S.C. [sections] 144 was the first provision enacted requiring district judge recusal for bias in general. Section 144 was initially adopted in 1911 and remains relatively unchanged. It states:

      Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceedings ....(18)

      Although the legislative history of [sections] 144 suggests that it may provide for a peremptory and automatic removal of a judge on a party's motion, the courts have consistently construed the statute narrowly, thereby making disqualification unlikely.(19) Unlike [sections] 455, [sections] 144 is not self-enforcing.(20) Instead, the party alleging the bias must file an affidavit with the challenged judge stating "the facts and the reasons for the belief that bias or prejudice exists."(21) Judges examining the affidavit must accept the facts as true, but may evaluate the legal sufficiency of the affidavit.(22) To determine the legal sufficiency, the courts have imposed a "bias-in-fact" standard, as opposed to the "appearance of bias" standard required under [sections] 455.(23) A judge may be disqualified under [sections] 144 only after the court finds that the affidavit is timely(24) and legally sufficient.(25) Section 144's requirements place a heavy burden on the party seeking recusal. To prevail, the party must: 1) allege specific facts showing bias; 2) prove that these facts amount to personal bias; and 3) show that the facts are sufficient to convince a reasonable person that bias actually exists.(26) In contrast, revised [sections] 455 takes a more liberalized approach to judicial disqualification, by requiring merely an appearance of bias and by doing away with the affidavit requirement of [sections] 144.(27)

   3. THE EXTRAJUDICIAL SOURCE DOCTRINE

      The extrajudicial source doctrine is rooted in [sections] 144.(28) This doctrine mandates that judges may be disqualified from a case only when their bias stems from an extrajudicial source.(29) "Extrajudicial" refers to a bias that does not derive from evidence or the conduct of parties that the judge observes during the course of proceedings.(30) Most courts rely on the presence of the term "personal" in [sections] 144, as well as the section's requirement that the party file the affidavit ten days before the beginning of the term, as clear sources of the extrajudicial source doctrine.(31) The term "personal" is regarded as the antithesis of judicial.(32) "Personal characterizes an attitude of extrajudicial origin, derived non coram judiciae ... clearly the prejudgment that the statute guards against."(33) Further, courts have reasoned that because the party must file the affidavit ten days prior to the beginning of term, the events leading to recusal could not possibly arise from facts revealed during litigation.(34)

   4. THE SPLIT IN THE CIRCUITS

      In enumerating the requirements of [sections] 455, Congress did not specify whether the source of a judge's bias affects whether it is reasonable to question a judge's impartiality. As a result, the circuits have been split over whether bias that results from a judge's involvement in earlier judicial proceedings concerning parties to a present action demands recusal under [sections] 455.

      The majority of circuits have held that the extrajudicial source doctrine does apply to [sections] 455(a).(35) The D.C. Circuit as well as the Third, Fourth, Eighth, and Eleventh Circuits have expressly refused to entertain a recusal claim where the grounds for bias stemmed from judicial proceedings.(36) Based on the presence of language similar to that in [sections] 144, these courts have applied the extrajudicial source doctrine to [sections] 455(b)(1).(37) Determining that [sections] 455(b) is, in turn, a limitation on [sections] 455(a), the courts have extended the extrajudicial source doctrine to [sections] 455(a). These circuits provide little justification for this statutory construction beyond pointing to the absence of any discussion by Congress, prior to amending [sections] 455, regarding eradication of the extrajudicial source doctrine.(38)

      The Fifth and Sixth Circuits have held that [sections] 455 and [sections] 144 "must be construed in pari materia."(39) Therefore, "[d]isqualification under [sections] 455(a) must be predicated as previously under [sections] 144, upon extrajudicial conduct rather than on judicial conduct."(40) Similarly, the Ninth Circuit has concluded that [sections] 455 and [sections] 144 are complementary.(41) Accordingly, the same substantive standard of bias applies to both sections.(42)

      In the minority, the First and Second Circuits have concluded that Congress intended to abandon the extrajudicial source doctrine upon adopting the 1974 Amendments.(43) These Circuits rely on the plain meaning of the statute and the legislative history as the basis for this conclusion.(44) The test these circuits have applied, as first articulated in United States v. Cowden,(45) is "whether the charge of lack of impartiality is grounded in facts that would create a reasonable doubt concerning the judge's impartiality, not in the mind of the judge himself or even necessarily in the mind of the litigant filing the motion under 28...