Imagine you've been injured by a doctor mistakenly prescribing a dangerous combination of drugs. You've been left with permanent, serious injuries. A jury awarded you $1.5 million dollars for your pain and suffering.

The trial judge reduced that to $500,000 because state law caps pain and suffering awards at that amount. Now you appeal to your state supreme court because you believe the cap is unconstitutional.

However, one of the judges on the state supreme court vowed never, ever to vote to overturn that law. In light of his pledge, you fear he won’t give your case the fair hearing you're owed.

You ask the judge to step down, or recuse himself from the case. He refuses. Do you think you'll get a fair hearing?

A True Story

This is the true story of James MacDonald. One of the justices set to hear his case is Menis Ketchum, who as a judicial candidate promised voters never to overturn the state's Medical Professional Liability Act.

The MacDonalds, and many others who have no interest in the outcome, feel that Justice Ketchum will vote against them no matter what. If that's the case, it could violate the MacDonalds' right to a fair trial.

When a Judge Can't be Fair and Unbiased

Judges are supposed to be fair and unbiased. If a judge assigned to your case can't do that, you are entitled to a different judge.

The standard allows for the chance that a judge could be fair and impartial but situations might call this into doubt. So even if it just appears that the judge might not be able to give you a fair hearing, you're allowed to ask for a different judge.

Judges take themselves off a case willingly for this reason. Most judges readily take themselves off a case. Although they pride themselves for being open-minded in even very emotional cases, they know their reputation for fairness and honesty is more important than pride.

So they’ll step aside in several instances. If  the judge:

  • Is related to a party, attorney, or spouse of a party in the lawsuit
  • Is a party to the lawsuit
  • Is a material witness in the lawsuit
  • Was previously involved in the case (for example, he was a party's lawyer)
  • Prepared the contract, lease or will involved in the case
  • Is an appeals court judge and was the trial judge in the same case
  • Has a personal or financial interest in the outcome
  • Believes, for whatever reason, that he or she cannot be impartial

These factors are similar because they are specific and involve a direct connection between the judge and the case.

You can't ask a judge to step down just because her general political or philosophical outlook suggests she leans one way or the other. Judges are trained to put those feelings aside.

A Solemn Oath

It's not just that Justice Ketchum has already promised to the voters not to overturn the law that casts doubt on whether he should hear the case. In becoming a judge, he took a solemn oath not to prejudge any case or issue before it comes to his court. It's hard to square his campaign promise with this oath.

In refusing to step aside, Justice Ketchum said his campaign promise won’t cloud his view. Because he sits on the state's highest court, the MacDonalds have to live with that. They can't directly challenge his decision.

If a judge in a lower court, like a trial court or lower appeals court, refuses your request, you can appeal this decision. It usually would be an immediate or interlocutory appeal, before the trial got underway. It might have to await the outcome of the case. Either way, though, you could appeal.

The MacDonalds have to await the final judgment where Justice Ketchum will vote. If they lose, their only hope will be to ask the US Supreme Court to consider his refusal hindered a fair trial guaranteed by the Constitution’s Fifth Amendment.

No Strangers to Recusals

Strange as it may seem, this issue is familiar to the Supreme Court. Just last year it ruled a state supreme court justice acted incorrectly in refusing to recuse himself from a case involving a campaign donor. The Justices called it an obvious and extreme conflict and a due process violation.

Can you guess which state supreme court the offending justice belonged to? If you guessed West Virginia's, you guessed right.

Questions for Your Attorney

  • How can we tell if the judge assigned to our case has a hidden connection to it?
  • Won't the judge be angry with us for asking him to recuse himself?
  • If I have a reason to think a judge might be biased in my favor, do I have to bring that to anyone's attention?

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