Monday, November 2, 2009

How (Not) To Recuse A Judge


So I see that Congress is taking at look at revising the federal recusal guidelines:

The House Judiciary Committee, led by Rep. John Conyers, D-Mich., is planning a hearing on federal recusal guidelines amid controversies that have swept through state court systems in recent years, culminating in a U.S. Supreme Court decision five months ago that tightened the recusal requirements for elected state judges.

The Judiciary Committee's interest marks the first time Congress has flirted with recusal guidelines since a high-profile scrap in 2004 between congressional Democrats and Justice Antonin Scalia. In a debate that broke along partisan lines, Democrats said that Scalia should have recused in a case involving then-Vice President Dick Cheney because he and Cheney were part of a group that went duck hunting in Louisiana while the case was pending. Nonprofits seeking records from Cheney's energy task force eventually lost, 7-2.

Under the current system, federal judges get to decide on their own whether to disqualify themselves from cases. Among the proposals being discussed are requiring a second judge to rule on a recusal motion -- rather than leaving the motion to the "targeted" judge -- and making substitution automatic if any party to a case swears an affidavit alleging prejudice. Some lawmakers, including Conyers, have also said in the past that they want a system to review recusal decisions by U.S. Supreme Court justices.

This effort parallels an ongoing review by the Bar's Judicial Administration and Evaluation Committee of Florida state court recusal procedures. The committee is looking at the "second judge review" option but also a system of automatic recusal:
The committee has been looking at Florida’s recusal rules and met with Geyh, an acknowledged expert in the field, via teleconference on October 8. The Judicial Ethics Advisory Committee also attended the meeting. The JAEC and the Rules of Judicial Administration and Education Committee have formed a joint subcommittee to work on the issue.

JAEC members have expressed concerns that it is unfair to ask a judge who is subject to a recusal motion to rule on it, and that it can also create an unfavorable perception by the public. They have also said the system can be abused by judges and can complicate and add expense to litigation.

Geyh said there are two main alternatives to Florida’s system. One — which has been discussed by the committee — is to bring in a second judge to decide the recusal motion. That choice may involve having the initial judge decide the facial sufficiency before referral is made, he said.

The second method is to give the parties the equivalent of a peremptory challenge. That is, Geyh said, they can ask to have a judge replaced without giving a reason, as long as they act soon after the case is assigned. But if they want the second judge replaced, they face a higher standard of showing a presumption of bias by the judge.

“There is very little disqualification litigation after that [the peremptory challenge],” he added.

That system is used in about 20 states, mostly in the West. Interestingly, judges in states without the peremptory challenge don’t like the system because they get no say about being removed and the accompanying appearance of bias. But judges in states that use the system, Geyh said, tell him, “‘We’re ultimately indifferent with the idea that the litigant is uncomfortable with us for whatever reason. They get one shot only, and they don’t need to demean me by making up excuses.’

“You get a new judge and the only way you’re going to get another judge is by the old way of showing presumption of bias.”
We've all been there. You get a judge that -- for whatever reason -- has got to go, but how to do it?

I think it's apparent, at least in state court, that the system needs revision. And I've had cases in states where you have a certain number of days to reject the judge for no stated reason, and that system does seem to work.

What do you all think (or do you all just want to keep talking about Scott Rothstein)?

11 comments:

  1. I'm bopping my father in the nose for allowing me to grow up with the last name "Geyh".

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  2. Let's go back to RRA. Fun fact: word on the street is that old number 13 was suckered out of more than $10 Million. If that is the case, we will never ever ever see scott rothstein in florida again. word.

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  3. Five foot five is outtahere!!!

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  4. Play some Zep SFL.

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  5. Automatic recusal at the initial request could lead to judge-shopping. Having a second judge make the ruling could lead to resentment from a fellow jurist. The present system is fine and one has the appellate court to review a judges denial.

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  6. SFL, on an unrelated note, I don't know if it's new or not, but I was glad to see that you added an Alexa toolbar at the bottom of your home page. I'm all about Alexa right now, baby!

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  7. A judge cannot serve justice on a waitress if the waitress has regularly served the judge.

    I'll say no more.

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