Well, Recuse Me! When a Judge Shouldn't Hear a Case

You're entitled to have an impartial judge preside over your case, but how do you know when the circumstances make recusal or disqualification of the judge a legal possibility?

One of the key principles of the American judicial system is that the judge who presides over a case must be fair and impartial. In the vast majority of cases, the issue of the judge's fairness and impartiality never comes up. There are instances, however, when one of the parties in a civil case has reason to believe that the judge cannot be fair and impartial. Sometimes the judge recognizes his or her own inability to maintain partial. In those situations, the judge will either recuse himself or the litigant will move to have the judge disqualified from presiding over the case. Let's look at some of the circumstances that may lead to a judge's recusal or disqualification.

Bias or Prejudice Concerning a Party or Attorney. If a judge is biased or prejudiced for or against a party or attorney, he cannot be fair and impartial in deciding the case. A party or attorney who believes such bias or prejudice exists must prove it with admissible evidence, and cannot base this belief on mere suspicion.

It's not enough to establish bias or prejudice simply by showing that a judge has ruled against the party or attorney in a prior case. Rather, bias or prejudice typically means the judge has acted or spoken in a way that prevents him or her from treating the party or attorney in a fair and impartial manner.

Judge's Personal Knowledge of Disputed Facts. Even a judge who is not serving as the finder of fact (i.e., when the case is to be decided by a jury) cannot be fair and impartial if he or she has personal knowledge of disputed facts, because the judge's evidentiary rulings (in pleadings and motions made by the parties) may be influenced by that knowledge. This is especially true when the facts known by the judge are either not part of the factual record of the case, or conflict with the evidence presented in court.

Judge's Relationship to a Party or Attorney. A judge's fairness and impartiality may be compromised when he or she has had a business or professional relationship with a party or attorney. In cases where the judge was a party's business partner or attorney, as well as in cases where the judge was a member of a law firm representing a party, the potential for bias or prejudice is almost always too great to permit the judge to preside over the case.

Judge's or Judge's Family Member's Economic Interest in the Case. Sometimes a judge or one of his or her immediate family members will have an economic interest in the subject matter of the case, one that could be significantly impacted by the outcome of the proceedings. For example, the judge's spouse might own a majority interest in a corporate party that is being sued for alleged violation of antitrust laws. In such a circumstance, the judge would have conflicted loyalties and would have a difficult time remaining fair and impartial in his/her rulings.

Procedure for Recusal. When any of the above circumstances are present, the judge may either raise the issue of recusal him/herself or entertain a motion by one of the parties. A judge who determines it is necessary to recuse him/herself will advise the parties and attorneys of the grounds for that determination, and will ask the court administrator to reassign the case to a different judge. If the matter is brought to the judge's attention through a party's motion seeking disqualification, in most jurisdictions the judge will initially decide the motion him/herself; if the motion is denied, the losing party will typically be permitted to have the motion reheard by the court's Chief Judge.

Finally, it's important to note that recusal and disqualification of judges is a sensitive subject, since it draws into question the fitness of a judge to carry out the fundamental role of his or her position -- the fair and impartial resolution of judicial proceedings. So, the decision to file a motion seeing disqualification should be made only after careful consideration.

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