Justice Souter on Recusal - In re Bulger

Writing for the First Circuit in In re Bulger, Justice Souter's opinion provides a good discussion about recusal. You can view the opinion at THIS link. At issue was the defendant's petition for writ of mandamus seeking an order requiring the district court judge to recuse himself based upon allegations the judge had been invoked in the case (due to his role as an assistant US Attorney). Notably, the defendant was previously on the FBI's Ten Most Wanted list. After an analysis of what recusal is and isn't, and applying that analysis to the facts in this case, the opinion concluded:

In sum, despite our respect for Judge Stearns and our belief in his sincerity, we are nonetheless bound to conclude that it is clear that a reasonable person might question the judge’s ability to preserve impartiality through the course of this prosecution and the likely rulings made necessary by the immunity claim. The other mandamus conditions being satisfied, the petition is granted, and the case shall be reassigned to a judge whose curriculum vitae does not implicate the same level of institutional responsibility described here.

 

Conflicting With The Second Circuit, Eleventh Circuit Holds Objections Must Be Made Even To Unhappy Judge

In United States v. Rodriguez (08-16696), the Eleventh Circuit disagreed with the Second Circuit and began its opinion as follows:

This case poses the question of whether there is a vindictive judge or cowardly counsel exception to the contemporaneous objection rule. Unless there is such an exception, the only issue that the appellant is pressing on appeal is barred for failure to object because she cannot meet the requirements of the plain error rule. Disagreeing with the Second Circuit, we hold that the possibility a judge may be unhappy with an objection does not excuse the failure to make it.

The opinion is twenty-two pages long and clearly discusses the issue in more detail.  The Second Circuit cases that the court disagreed with are: United States v. Leung, 40 F.3d 577 (2d Cir. 1994), and United States v. Kaba, 480 F.3d 152 (2d Cir. 2007).  The court disagreed for a number of reasons, including:

• "The first is that under settled law if a party does not move to recuse a judge on actual bias grounds, review is only for plain error.";
• "The second reason that we reject Rodriguez’s position, and the Second Circuit’s decisions on which it is based, is that they substantially undermine the important interests served by the contemporaneous objection rule. As we have explained, “The narrowness of the plain error rule is a reflection of the importance, indeed necessity, of the contemporaneous objection rule to which it is an exception.” United States v. Pielago, 135 F.3d 703, 709 (11th Cir. 1998). Requiring an objection at trial “fosters finality of judgment and deters ‘sandbagging,’ saving an issue for appeal in hopes of having another shot at trial if the first one misses.”;
• "The third reason we reject Rodriguez’s position is that it is demeaning to both judges and attorneys. Judges know that it is the role and duty of attorneys to represent their clients zealously and object to what they perceive to be errors or potential errors. Many objections have as their premise that the judge has violated, or but for the attorney’s intervention would violate, some law, rule of procedure, or right of the attorney’s client. That is the stuff of which objections are made. To suggest that judges, whose solemn duty it is to apply the law fairly and impartially to all parties before them, would vindictively respond to an attorney’s objection by punishing the client is demeaning to the judiciary. And to suggest that lawyers, who perceive a valid basis for objection, would cower in their seats, fearing retribution from the bench if they do object, is demeaning to the bar. We reject any vindictive judge or cowardly counsel exception to the contemporaneous objection rule."

After discussing a number of other issues, the Eleventh Circuit discussed the Supreme Court's opinion last year in Caperton v. Massey.  Caperton was previously discussed on this blog HERE, HERE, and HERE.  I only single out the discussion about Caperton as Caperton received a significant amount of attention.  The court stated:

The Supreme Court has decided that in at least some situations the probability of actual bias is enough to violate due process. In Caperton v. A. T. Massey Coal Co., ___U.S.___, 129 S.Ct. 2252 (2009), the Court held that a state supreme court justice was required to recuse himself from a litigant’s case where that litigant had made significant contributions to the justice’s campaign for office. Id. at 2256–57. The Court’s holding, however, was narrow. See id. at 2265. It noted the “extreme facts” of that case and limited its holding to the “extraordinary situation” where the “probability of actual bias rises to an unconstitutional level.”  Id. There is no probability of actual bias in this case. In fact, Rodriguez concedes that there was no actual bias. So, she has failed to meet the second requirement of the plain error rule.

Petitions Seeking Removal Of Judge Presiding Over Foreclosure Division Denied

In Nudel v. Flagstar Bank, FSB (4D10-641) and Davis v. HSBC Bank USA (4D10-1842), which can be viewed HERE, the Fourth District denied petitions for writ of prohibition seeking to recuse the trial court judge.  The petitions were the seventh and eighth petitions filed by the same law firm seeking to recuse the same circuit court judge  The court stated:

As in the prior petitions and motions to disqualify filed by the firm, Ice attempts to pyramid a host of unrelated matters, which were not raised within the ten-day time limit of Florida Rule of Judicial Administration 2.330(e), to achieve its goal. The repetitive claims have been reviewed de novo on numerous occasions and rejected on the merits. None of these issues, alone or together, provide Ice’s clients with any objectively reasonable basis to fear that the judge is biased.

In addition to re-raising these issues, the Ice firm raised new arguments alleging that ex parte communication between opposing counsel and the judge requires disqualification....Based on these allegedly improper ex parte communications, Ice seeks to disqualify the judge from all of its cases. In all of its prior petitions, Ice has sought what amounts to firm-wide disqualification which would effectively exclude Ice from proceeding in the foreclosure division. Judge Sasser is presently the only judge presiding in the foreclosure division.

The court concluded:

Ex parte communications regarding purely administrative, nonsubstantive matters, such as scheduling, do not require disqualification....The ex parte communications in the present cases all involved purely administrative, non-substantive matters regarding the scheduling of motions, not the merits of the case. The judge, who had read and was familiar with Ice’s motions, did not exhibit any objectively reasonable basis for Ice’s clients to fear bias when she indicated that the motions did not require additional time.

As to the communications between the administrative personnel of the bank’s law firm and the JA, neither the ex parte communications, nor the alleged animosity that has developed between the JA and one of Ice’s employees, provides an objectively reasonable basis for Ice’s clients to fear that the judge will not be fair and impartial....As noted in Leone, scheduling of hearings is typically a matter delegated by judges to judicial assistants. This is particularly necessary in the foreclosure division which has an extraordinary backlog of cases. Judge Sasser cannot be expected to hold hearings regarding the length of upcoming hearings in order to settle insignificant disputes about whether a n additional five minutes is necessary for oral argument on a motion.

***

Ice’s repetitive attempts at disqualification in these cases appear designed, not to ensure that the proceedings against their clients are presided over by a neutral and fair tribunal, but to achieve a strategic advantage and/or frustrate the efficient function of the foreclosure division. As we suggested in Nassetta v. Kaplan, 557 So. 2d 919, 921 (Fla. 4th DCA 1990), this tactic is an improper use of the disqualification procedure.

Trial Court's Comments Sufficient To Justify Disqualification

In Haas v. Davis (3D10-1017), the third District granted a petition for writ of prohibition based upon statements made by the trial judge.  The court stated "While the alleged comments made by the trial judge may not have been intended to reflect on his beliefs as to the merits of the underlying claims, 'the standard is the reasonable effect on the party seeking disqualification, not the subjective intent of the judge.'”

Prohibition Granted And Trial Judge Recused Based Upon Allegations Of Favorable Interest Rates From Lender

In Mines v. Countrywide Home Loan, Inc. (1D09-5669), the First District granted a writ of prohibition and ordered the Chief Circuit Judge to appoint a new trial judge.  The Petitioner alleged the trial judge should be recused "based upon an alleged financial interest in the form of favorable interest rates not available to the public in the judge’s own dealings with a lender with a close corporate affiliation to the plaintiff in the instant cause."  The First District held that:

This court finds that these facts, taken as true as they must be, would prompt a reasonably prudent person to fear that he or she will not obtain a fair and impartial hearing. We therefore grant the petition and direct the trial judge to enter an order of recusal, requesting that the chief circuit judge appoint a new judge to preside over the cause.

The docket from the trial court can be viewed HERE and the First District's docket for the case can be viewed HERE. The Petitioner's Petition can be viewed HERE, the Respondent's Answer Brief HERE and the Petitioner's Reply Brief HERE.  The Petition is also below:

Mines v. Countrywide - Petition

Wisconsin Supreme Court Involved In Heated Post-Caperton Recusal Dispute

The Justices on the Wisconsin Supreme Court are involved in an interesting post-Caperton recusal challenge.  An article can be found in the Milwaukee Journal Sentinel.  Prior Caperton posts can be found here and here.  The article starts "Justices on the deeply divided state Supreme Court hurled dueling statements this week, with one contingent accusing the other of delaying decisions on how to handle requests to force the newest member of the court off criminal cases."  Thanks to the Election Law Blog for the link to the Journal Sentinel article. 

The Wisconsin Supreme Court's website provides the briefs and the issue.

08-16

08-16 amended

In re creation of rules for recusal when a party or lawyer in a case made contribution effecting a judicial campaign filed 06/20/08 by Melanie G. Ramey, President on behalf of the League of Women Voters of Wisconsin Education Fund, Inc.

Responses to petitions 08-16, 08-25 and 09-10:

Justice at Stake

Wisconsin Association of Justice

Brennan Center for Justice

State Bar of Wisconsin

Center for Competitive Politics

10/28/09 at 9:30 a.m. in the Supreme Court Hearing Room

The court's agenda for October 28, 2009 is below:

10-28-2009 Agenda

Fourth District Denies Caperton Recusal Writ

In E.I. DuPont de Nemours and Company, Inc. v. Aquamar S.A. (4D09-2871), the Fourth District denied a petiton for writ of prohibition seeking the recusal of the trial court judge.  The court stated:

An attorney’s legal campaign contributions within the statutorily permitted amount are not a legally sufficient ground for disqualification...The contributions from attorneys in the firms representing the plaintiffs in this case were all within the statutorily permitted amounts, and the cumulative total of $4650 which the attorneys in the firms contributed to the judge’s reelection campaign does not approach the $3 million contribution at issue in Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009).

Eleventh Circuit Affirms Decision Not To Recuse Self, Fees and Dismissal Wih Prejudice As A Sanction

In Smith v. Atlanta Postal Credit Union (09-12060), the Eleventh Circuit affirmed the district court's order denying a motion to recuse.  The court stated the recusal standard as follows:

A “judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Generally, only personal bias stemming from extrajudicial sources is sufficient to disqualify a judge...An exception exists for judicial conduct demonstrating “such pervasive bias and prejudice that it constitutes bias against a party,” but neither “rulings adverse to a party, nor friction between the court and counsel constitute[s] pervasive bias.”...On the contrary, “the standard is whether an objective, fully informed lay observer would entertain significant doubt about the judge’s impartiality.”...Rulings against one party in favor of another, without more, do not require a judge to disqualify himself.

The court also addressed a challenge to attorneys fees and stated:

Smith’s argument that the district court should not have awarded fees for time expended by the associate because he had not yet entered an appearance is similarly unavailing. Neither the Federal Rules of Civil Procedure nor the district court’s Local Rules require every attorney working on a case to enter an appearance before the court.

***

With respect to Smith’s contention that the imposition of sanctions required a finding of bad faith, Rule 37 fee awards, unlike sanctions imposed pursuant to the court’s inherent powers, do not require such a finding.

Finally:

A district court does not abuse its discretion by dismissing an action with prejudice “[w]hen a party demonstrates a flagrant disregard for the court and the discovery process.”

Judge Who Recuses Self In One Case Must Recuse Self In Related Case

In Catasus v. Tabone, et al (3D09-1815), the Third District held that since the trial judge recused himself because of "voluntarily-revealed personal relationship with parties in the lawsuit, the trial judge should have granted a motion for disqualification in this separate case involving those same parties."

Once Recused A Judge Does Not Have Authority To Enter Additional Order

In Lake v. Lake (3D08-2525), the Third District reversed based upon a confession of error. The court stated:

Once the trial judge recused himself, he had no further authority to enter orders. See Bolt v. Smith, 594 So. 2d 864, 864 (Fla. 5th DCA 1992) ("Florida case law is well settled that once a trial judge has recused himself, further orders of the recused judge are void and have no effect.").

Prohibition Granted to Prevent Trial Court from Presiding Over Case

In Moskovits v. Crystal House, Inc. (3D09-1705), the Third District granted a writ of prohibition to prevent the trial judge from presiding over the case. The court stated "We have reviewed the verified motion to disqualify, and conclude that the motion was legally sufficient, and therefore, it should have been granted. See Fla. R. Jud. Admin. 2.330(d)(1)-(2). Accordingly, we grant the writ of prohibition, but are confident that it will be unnecessary to formally issue the writ."

Supreme Court: Judges Failure to Recuse Himself Violated Due Process

In Caperton v. A.T. Massey Coal Co., Inc. (No. 08–22A) a divided United States Supreme Court held today [here] that it violated due process for a Justice of the Supreme Court of Appeals of West Virginia to deny a recusal motion when a large percentage of the Justice's campaign contributions originated from a party to the proceeding.

Question Presented: "The question presented is whether the Due Process Clause of the Fourteenth Amendment was violated when one of the justices in the majority denied a recusal motion."

Holding:

Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case.

***

We conclude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person witha personal stake in a particular case had a significant and disproportionate influence in placing the judge on the caseby raising funds or directing the judge’s election campaign when the case was pending or imminent. The inquirycenters on the contribution’s relative size in comparison tothe total amount of money contributed to the campaign, the total amount spent in the election, and the apparenteffect such contribution had on the outcome of the election.

***

Due process "may sometimes bar trial by judges who have no actual bias and who would do their very bestto weigh the scales of justice equally between contending parties." Murchison, 349 U. S., at 136. The failure to consider objective standards requiring recusal is not consistent with the imperatives of due process. We find that Blankenship’s significant and disproportionate influence—coupled with the temporal relationship between the election and the pending case—"‘"offer a possible temptationto the average . . . judge to . . . lead him not to hold thebalance nice, clear and true."’" Lavoie, 475 U. S., at 825 (quoting Monroeville, 409 U. S., at 60, in turn quoting Tumey, 273 U. S., at 532). On these extreme facts the probability of actual bias rises to an unconstitutional level.

Judge Should Recuse Himself if Party Has Reasonable Fear of Bias, Regardless of Actual Bias

In Aberdeen Prop. Owners Assoc. Inc. v. Bristol Lakes Homeowners Assoc. Inc. (4D08-4467), the Fourth DCA reversed the circuit court and ordered the circuit court judge disqualify himself due to the defendants reasonable fear that it could not receive a fair trial. It is not necessarily relevant whether the Judge could in fact provide the party with a fair trial. In this case, the trial judge had a personal situation somewhat related to the issue before the court and, therefore, the party had a reasonable fear it would not receive a fair trial. The Fourth DCA held:

Rule 2.330(f) requires a judge to enter a n order granting disqualification if the motion to disqualify is "legally sufficient." The motion is legally sufficient if it shows the party’s well-grounded fear that the party will not receive a fair trial. See Enter. Leasing Co. v. Jones, 789 So. 2d 964, 968 (Fla. 2001); Livingston v. State, 441 So. 2d 1083, 1087 (Fla. 1983). It is not a question of what the judge feels, but the feeling in the mind of the party seeking to disqualify and the basis for that feeling. See Goines v. State, 708 So. 2d 656, 659 (Fla. 4th DCA 1998) (“[T]he facts underlying the well-grounded fear must be judged from the perspective of the moving party.”), disagreed with on other grounds by Thompson v. State, 949 So. 2d 1169 (Fla. 1st DCA 2007), quashed, 990 So. 2d 482 (Fla. 2008); Wargo v. Wargo, 669 So. 2d 1123, 1124 (Fla. 4th DCA 1996). Of course, the party seeking disqualification has the burden of showing that the party has a well-grounded fear of not receiving a fair trial. See Adkins v. Winkler, 592 So. 2d 357 (Fla. 1st DCA 1992).