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ABA Model Code of Judicial Conduct 1990 version (supplement) Canon 3: Impartiality and Diligence 3(E): Disqualification (duty to recuse ) 3(F): Remittal of Disqualification 3(B)(9): Public statements 2008 version (supplement) Rule 2.11: Disqualification (duty to recuse )

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sources of rules

ABA Model Code of Judicial Conduct

    • 1990 version (supplement)
      • Canon 3: Impartiality and Diligence
        • 3(E): Disqualification (duty to recuse)
        • 3(F): Remittal of Disqualification
        • 3(B)(9): Public statements
    • 2008 version (supplement)
      • Rule 2.11: Disqualification (duty to recuse)
      • Rule 2.10: Judicial Statements
    • Procedure: duty to recuse or invite remittal (waiver), party can make motion, judge decides

SOURCES OF RULES

F. JUDICIAL DISQUALIFICATION AND RECUSAL

sources c t d
Sources c’t’d
  • Federal Statutes on Disqualification
    • 28 U.S.C. s. 144: right of party to disqualify for personal bias or prejudice
      • affidavit alleging bias against party or prejudice -- only one per party!
      • duty of judge to recuse w/o inquiry into truth of affidavit
    • 28 U.S.C. 455: grounds for disqualification, duty to recuse or invite waiver, party can move, judge rules on motion
problem pp 388 90
Problem pp. 388-90
  • Judge Whynne’s statement in public lecture that “there is no such thing as ‘discriminatory prosecution’” in criminal cases; you consider this as a defense in this case
    • “impartiality might reasonably be questioned”?
    • “personal bias or prejudice concerning a party”? (before 1999 was only specified possibility)
    • “commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding”? (2008 Rule 2.11(A)(5) – cf. 1990 Canon 3(E)(1)(f) (added 1999) – cf. Laird v. Tatum, n2 p. 399
    • “commitment … inconsistent with the impartial performance of adjudicative duties”? (2008 Rule 2.10(B), 1990 Canon 3(B)(10))
problem pp 388 90 c t d
Problem pp. 388-90 c’t’d
  • Purpose of D’s document theft was to expose Senator Thompson, who was judge’s law partner and whose campaign for senate was managed by judge, and who proposed judge for appointment
    • “personal bias or prejudice concerning a party”?
    • “personal knowledge of disputed facts”?
    • “appearance of impropriety”, 2008 Rule 1.2 or 1990 Canon 2(A)?
problem pp 388 90 c t d1
Problem pp. 388-90 c’t’d
  • Angie Doyle as a government witness at trial, was Senator’s adm. asst. and alleged to have been a co-conspirator
    • Personal bias or prejudice?
    • what if the judge had hired Angie in the first place, when she was Thompson’s campaign mgr., and had worked closely with Angie?
    • general standard, impartiality might be questioned?
problem pp 388 90 c t d2
Problem pp. 388-90 c’t’d
  • As state judge, Whynne had tried a libel action against D, and found that his accusation against P was “wholly without foundation” and “obviously animated by malicious intent to injure” P
    • “personal bias or prejudice”?
    • cf. Liteky, p. 390: what is the “extrajudicial source doctrine”?
    • cf. Reeter, n. 5 p. 402
what procedures to follow
What procedures to follow?
  • Motion to disqualify
    • privileged motion?
      • federal: s. 144, and Sykes, p. 404 – on what ground was recusal denied?
      • state rules like Missouri’s: “change of judge” – how does that differ from the federal?
    • if not privileged, who decides?
  • Remittal or Waiver – what potential problems? Does the Code avoid them?
problem c t d
Problem c’t’d
  • Your firm has hired one of Judge Whynne’s clerks, and is currently negotiating with a present clerk
    • conflict of interest for the firm?
      • former clerk?
      • current clerk?
    • For the judge?
caperton v a t massey coal co u s 6 8 09

Caperton and others sued Massey for fraud, j/Ps $50mil

  • After verdict but before appeal to state S.Ct., elections for ct. were held, and Massey’s chairman supported challenger Benjamin against incumbent, contrib. $3 mil., 50+% of all expenditures for Benj., Benj. won narrowly and took seat
  • Massey appealed, Ps moved to recuse Benj., he denied because he wasn’t influenced. B voted for M., wrote conc.
  • Held violation of DP, extreme circumstances gave rise to intolerable doubts about judge’s ability to be fair and impartial; proof of actual bias not required
  • 5-4, ideological split, Kennedy writing maj. op. w/ libs

Caperton v. A.T. Massey Coal Co.(U.S. 6/8/09)

JUDICIAL CONFLICTS C’T’D