Disqualification misconceptions

Recent judicial discipline cases reveal several misconceptions that some judges may have about when they are obligated to disqualify themselves from cases or to at least disclose a disqualifying interest or relationship.

Misconception #1

That a judge’s subjective opinion that he can be fair and impartial determines whether disqualification is necessary.  In re Drazewski, Order (Illinois Courts Commission March 11, 2016) (judge presided over cases in which the husband of the judge with whom he was having an affair represented a party without disclosing the relationship).  See also Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) (“In lieu of exclusive reliance on that personal inquiry, or on appellate review of the judge’s determination respecting actual bias, the Due Process Clause has been implemented by objective standards that do not require proof of actual bias”).

Misconception #2

That disqualification does not apply if the judge foresees no problems in the case.  In the Matter of Isaac, Final judgment (Alabama Court of the Judiciary August 8, 2016) (judge failed to disqualify herself from the probate of her father’s estate, stating she would if an issue arose about who was an heir); In re Badeaux, 65 So.3d 1273 (Louisiana 2011) (judge failed to immediately self-recuse from a divorce case despite his long-standing, friendship with both parties because he viewed the matter as amicable).

Misconception #3

That a judge is not disqualified from cases in which a family member represents a party if he will not have to make findings regarding contested facts.  Re Grimes (Tennessee Board of Judicial Conduct January 11, 2016) (judge disposed of numerous cases in which his wife represented criminal and juvenile defendants).

Misconception #4

That disqualification does not apply if a jury will decide the matter.  In the Matter of Underwood (South Carolina Supreme Court September 14, 2016) (magistrate heard matters involving the sheriff’s department even though her husband was the elected sheriff).

Misconception #5

That the absence of an objection following disclosure of a disqualifying relationship constitutes a waiver even if the parties do not have an opportunity to consider waiver outside the judge’s presence and do not affirmatively agree to waive disqualification on the record.  In the Matter of Underwood (South Carolina Supreme Court September 14, 2016) (magistrate heard matters involving the sheriff’s department even though her husband was the elected sheriff).

Misconception #6

That the end of a relationship immediately eliminates the need for disqualification or disclosure.  In the Matter of Howes, 880 N.W.2d 184 (Iowa 2016) (judge signed an ex parte order presented by an attorney who had recently represented her in a personal matter without charge).

Misconception #7

That a judge can rely on the rule of necessity without affirmatively determining that a matter is urgent and no other judge is available.  In the Matter of Howes, 880 N.W.2d 184 (Iowa 2016) (judge signed an ex parte order presented by an attorney who had recently represented her in a personal matter without charge).

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