What every judge should know about the appearance of impartiality.

• Author: Abramson, Leslie W.

"[S]uch a delightful surprise" was Justice Ruth Bader Ginsburg's 2009 reaction to Chief Justice William H. Rehnquist's abrupt change of view in a 2003 gender discrimination case. (1) Why would he change his mind after years of disfavoring women's rights? "Justice Ginsburg said the Chief Justice's 'life experience' had played a part in the shift." (2) His recently divorced daughter's demanding job led him to "denounc[e] 'stereotypes about women's domestic roles.'" (3)

A surprise perhaps, but should the Chief Justice have recused himself because his daughter's situation affected his vote? A judge's "life experiences" are one reason that his or her disqualification may be appropriate, because his or her "impartiality might reasonably be questioned...." (4) That phrase is the linchpin for judicial disqualification in every state, and is based on the American Bar Association's Code of Judicial Conduct ("CJC").

All states include within their code of judicial conduct a directive for judges to follow regarding disqualification when "his [or her] impartiality might reasonably be questioned." (5) The CJC has specific examples presuming that the judge's impartiality "might reasonably be questioned." (6) These rules of presumed or actual bias relate to the judge's personal bias, a close family member as a party, counsel or witness in the case, or a family member in the judge's household with an economic or other interest in the outcome of the proceeding. (7) When specific rules of presumed or actual bias do not apply because the facts do not fit the ethical standard, the judge or a moving party still may rely upon the above standard based on apparent bias or the appearance of partiality, even though no actual bias exists. (8) The case law frequently cites the United States Supreme Court statement that the appearance of impartiality is as important as actual impartiality. (9)

Structurally, the "appearance of partiality" standard functions as a residuary clause for judges to apply when the specific examples of presumed bias do not apply. For example, CJC provisions about presumed bias preclude a judge from presiding in a case when the judge's child or spouse is a party or counsel. (10)

A judge should disqualify him or herself, prior to or pursuant to a motion to recuse: 1) when he or she doubts his or her ability to preside impartially; or 2) when a person of ordinary prudence in the judge's position, knowing all the facts known to the judge, would find a reasonable basis for questioning his or her impartiality. (11) The latter standard for assessing the need for the judge's disqualification is more demanding because:

The disqualification decision must reflect not only the need to secure public confidence through proceedings that appear impartial, but also the need to prevent parties from too easily obtaining the disqualification of a judge, thereby potentially manipulating the system for strategic reasons, perhaps to obtain a judge more to their liking. (12) In either instance, when the trial judge denies a motion to disqualify, the appellate standard of review is whether the trial judge's ruling constituted an abuse of discretion. (13)

This article explores the "appearance of partiality" principle. Part I of the article examines CJC standards relating to the appearance of partiality and the accompanying CJC commentary for all state CJC provisions. Part II examines the common law concepts of a judge's duty to sit and the rule of necessity, both of which can affect the judge's ability and willingness to preside when challenged on ethical grounds. Part III briefly describes the United States Supreme Court cases that interpret and apply the appearance of partiality concept, and continue to explore due process violations for the appearance of partiality.

Part IV looks at violations of other CJC rules that may still lead to judicial disqualification for the appearance of partiality, e.g., ex parte communications, family influences, campaign contributions, and public comments by the judge. Part V describes how judicial decisions sometimes confuse the appearance of partiality with constitutional principles, especially the effective assistance of counsel and issuance of warrants in criminal cases. Part VI discusses judicial decisions applying the "might reasonably be questioned" standard from the past five years. In these cases, a party challenges whether the judge ought to preside in a current case because of his or her current associations, his or her past relationships and experiences, and his or her presiding over related past cases.

1. THE "MIGHT REASONABLY BE QUESTIONED" STANDARD

   1. Background

      The American Bar Association ("ABA") has endorsed four sets of ethical standards for judges since 1924. (14) Initially, the ABA endorsed more than thirty general canons for judges to consider in assessing their own conduct as judges. (15) Two of the 1924 Canons addressed disqualification--when a near relative is a party and when the judge's personal interests are involved. (16) Nearly fifty years later, the ABA in 1972 recognized the 1924 Canons' limited scope and drafted a Code of Judicial Conduct that attempted to remedy the Canons' language deficiencies and address the myriad issues that the Canons overlooked. (17)

   2. CJC Black-Letter Standards

      A cornerstone of the ABA Code is determining when it is appropriate for a judge to disqualify him or herself from presiding further in a proceeding. Whether labeled as Canon 3C(1) (1972), Canon 3E(1) (1990), or Rule 2.11(A) (2007), the black-letter disqualifying principle has remained almost constant: (18) "A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to the following circumstances...." (19) More than forty years later, the ABA's 1972 general principle for judicial disqualification endures despite its intrinsic vagueness--avoiding substantive amendments and surviving a 2007 format makeover as well as judicial and academic criticism. (20)

      The term "impartiality" was first defined by the 1990 CJC in its terminology section, as the "absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge." (21) A definition so broad in scope fails to provide a precise formula that is either self-executing or simple to apply. (22) Therefore, a case-by-case approach by both challenged and reviewing judges is necessary to decide whether a judge's impartiality might reasonably be questioned, applying a less-than-predictable standard.

      Beginning in 1972, as the ABA presented each "new and improved" CJC, the states adopted them faster than corresponding ethical, substantive, or procedural standards. (23) Moreover, states have extended the identical disqualification standard to other participants in the judiciary (24) as well as to officials in a variety of executive branch positions. (25)

   3. CJC Commentary

      Since 1972, the CJC has supplemented black-letter principles with comments to guide judges and moving parties in applying the black-letter principles. The comments provide guidance about the purpose and meaning of the canons, sections, and rules. While it is not intended as a statement of additional binding rules. (26) the comments do contain both explanatory material and examples of permitted or prohibited conduct. Like the 1924 Canons, the comments also state "aspirational goals for judges[,]" who should strive to exceed the black-letter principles. (27) To surpass those principles enhances "the dignity of [the] judicial office." (28)

      Following Rule 2.11(A), five comments are relevant. (29) Comment [1] makes two statements that have become part of the understanding about the applicability of the appearance of impartiality principle. When the facts of a case do not match the presumptive bias language in Rule 2.11(A)(1)-(6), the first part of Comment [1] in effect states that a court is to apply the "might reasonably be questioned" phrase. (30)

      Relevant factors include the amount of the contribution, the contributor's involvement in the judge's campaign, the timing of the campaign in relation to the proceeding, the issues in the case, and other information known to the judge. (31)

2. PRINCIPLES AFFECTING THE RECUSAL DECISION

   1. The Duty to Sit

      When a judge believes that his or her impartiality might reasonably be questioned, he or she must recuse him or herself from the case and the denial of a motion to recuse is reversible only for an abuse of discretion. As part of a judge's thought process regarding whether to recuse, a judge has a duty to sit in a case that is as compelling as the duty to disqualify. (32) The "duty to sit" relates to not being overly cautious in the face of a challenge to whether he or she should continue to preside. (33) Parties and their lawyers cannot be allowed to think that they can "judge-shop," thereby controlling which judge will decide the case to their advantage. Even if a judge may tire of

      a particular litigant or the attendant publicity, so that he or she prefers to hand off (34) the case to another judge, (35) the duty to sit reminds the judge that withdrawing from a case is appropriate only when grounds to recuse in fact exist.

      The CJC incorporates the common law duty to sit into Rule 2.7, entitled: "Responsibility to Decide." It states that "[a] judge shall hear and decide matters assigned... " unless he or she is disqualified. (36) Simply, a judge must hear and decide the cases assigned to him or her. Rule 2.11, entitled: "Disqualification," describes the circumstances requiring a judge to recuse from hearing those assigned cases. (37) Together, the two rules comprise a "duty to sit," whereby a judge is obligated to hear cases unless there is a disqualifying circumstance that persuades him or her to disqualify him or herself from...