Judge Disqualification Rules in Action
by Judge Robert K. Hilder
In the Third District, the associate presiding judge acts as reviewing judge for most Rule 63(b), Utah Rules of Civil Procedure, and Rule 29, Utah Rules of Criminal Procedure, motions to disqualify the assigned judge.1 After more than one year of direct exposure to the rules in action, I am persuaded that ignorance of the rules’ substance and procedural requirements is the norm, both for judges and lawyers. The Third District has thirty-two and one-half judicial officers (we presently share one of our five commissioners with the Third District Juvenile Court). I have now reviewed more than thirty motions to disqualify (all but two in civil cases), involving nineteen of those officers.
The experience has been often frustrating, sometimes humorous, and always revelatory. My purpose in this article is to draw from my wholly unscientific sample, and the research it has impelled, to consider the rules in practice and give some suggestions to both lawyers and judges who are faced with disqualification issues. Obviously the suggestions result from problems I have seen in both the motions filed, and judges’ responses to those motions. This article is not intended to suggest that counsel and parties refrain from filing well-founded motions. The option to seek disqualification is a critical safeguard in the judicial system, and all judges support appropriate filings. I hope that this article will help counsel determine when a motion is valid, and assist judges (who each generally see very few such motions) in responding appropriately.
Utah does not provide each party a peremptory judge removal right. Except for the narrowly drawn Rule 63A option, which provides one stipulated change of judge as of right, counsel and parties are usually wedded to their judge for the term of the litigation, absent valid grounds for disqualification under the rules, or in some districts the automatic effect of assignment rotation, and of course changes caused by retirement or other administrative reassignment.
Do not engage regarding the motion. Do not request briefing, or set for argument before you determine legal sufficiency. Do not take the motion personally, even if it is patently personal and/or manifestly unfair. Everyone in your courtroom may stand in your presence and call you “You Honor,” but that doesn’t mean they actually like or respect you, and they don’t have to, and you do not have to argue the merits of their position. If you do engage, you have probably made the best argument for disqualification.
The rules are explicit on this point: “The judge against whom the motion and affidavit are directed shall, without further hearing, enter an order granting the motion or certifying the motion and affidavit to the reviewing judge.” Utah R. Civ. P. 63(b)(2) (emphasis added). Despite this clear directive, I have seen judges request briefing, set argument on the motion, and even call upon counsel present in the courtroom to essentially testify to the judge’s impartiality or the appropriateness of his or her conduct in a specific instance. When the judge becomes enmeshed in the proceeding in this fashion the process itself may create hostile and biased reactions. At the very least, in the
midst of such proceedings it becomes much more difficult to avoid an appearance of partiality sufficient to require disqualification.
– Recuse, or certify the motion. Say no more. The case law is clear that a judge’s comments included in his or her certification risks improperly influencing the determination by the reviewing judge.2
– Stay any action on the case until the reviewing judge has determined the motion following certification. We do not presently have an explicit rule that prohibits further proceedings when a disqualification motion is filed (although at least one decision appears to read the “no further hearing” language to preclude any action in the case, and not just a hearing on the motion). Regardless of whether the rule language is that broad, it is very likely that any judicial actions taken after the motion is filed are void, at least if disqualification is ordered.3
– The standard by which the challenged judge should consider the motion has changed over the years. Some older cases, including Haslam v. Morrison, 190 P.2d 520 (Utah 1948), suggested a presumption in favor of disqualification even when no bias exists. Justice Wade stated the rationale in his concurrence: “If the judge is not biased and prejudiced, there does not seem to be any good reason why, if the litigant in the court believes he is, that he should not get another judge to try the case since the result of the litigation should be the same in both cases.” Id. at 526 (Wade, J. concurring).
The reasoning has some superficial appeal, but applying the presumption is an invitation to judge-shopping, and in today’s busy courts the result would be an administrative nightmare. In 1948 the court was ready to defer to a subjective fear of bias. I would suggest that even when a party perceives bias, the standard is now objective (see discussion of Madsen, below).4 Moreover, even if there was a presumption favoring disqualification at one time, at least one former justice of the Utah Supreme Court has reversed that presumption. In In re Affidavit of Bias, 947 P.2d 1152, 1153 (Utah 1997) (memorandum decision of Zimmerman, C.J., sitting alone), Chief Justice Zimmerman stated that when reviewing affidavits of bias, the court begins with the principle that “judges are presumed to be qualified.”
Finally, on this point, I note the advice of a wise colleague who should not be named, because his advice, good as I found it, is not grounded in published precedent. I asked him what I should do when, through repeated experience, I had learned not to trust the representations of a certain lawyer (unfortunately, I was speaking generally, with more than one lawyer in mind). He asked if this knowledge, honestly gained by me through first-hand experience in judicial proceedings, prevented me from addressing each case on its merits and treating the lawyer, his or her client, and/or the opposing side, fairly. I stated that, so far, that was not a problem. His advice then was that until my subjective ability to adjudicate fairly was impacted, I owed it to all counsel, parties, and my colleagues, to keep the cases and not send the lawyer to a judge who may not yet be wise to his or her conduct.
– If the reviewing judge poses questions as permitted by Rule 63(b)(3)(B), answer in writing, in affidavit form, and in the immortal words of Sgt. Joe Friday, “just the facts,” judge. No editorializing, opinion, or argument should be included.
– Recognize that a party may not create actionable bias, etc. solely by suing the judge, reporting to the Conduct Commission or Bar, or even threatening the judge’s life or well-being (all of which have occurred to me and many others, and usually all in one proceeding), but be sensitive to reality; i.e. has the aggressive action been effective in creating bias? If yes, recuse. If no, then certify the motion for review by another judge. Neither counsel nor litigant should be permitted to manipulate judge assignments by such aggressive behavior, but it is even more important that each litigant has the benefit of an impartial forum.
– Avoid at all costs what may be erroneously perceived as improper ex parte contact. The specific conduct that I see most often is normal social courtesies between counsel and judges that in fact have nothing to do with the case at issue and are not prohibited judicial conduct, but unrepresented parties are particularly (and understandably) sensitive to any indication that the opposing lawyer has an inside track with the judge. The most typical complaint is that at some point, usually following a hearing, opposing counsel may engage in social discourse with the judge, even approaching the bench or exiting the courtroom into the chamber’s area. We all know (or at least have heard) that judges were people once, and may even have a friend or two left in the Bar, but such contact in the presence of opposing parties causes understandable fear of favoritism.
– Consider whether grounds exist beyond the fact that the judge ruled against you; i.e. bias, prejudice or conflict of interest.5 It is not enough to argue that there exists an appearance of partiality or bias, unless counsel can show an objective basis for such a belief. It is true that our Supreme Court has stated that, “… an appearance of bias or prejudice is sufficient for disqualification.” Madsen v. Prudential Fed. Sav. & Loan., 767 P.2d 538, 544n.5 (Utah 1988). This language makes frequent appearances in the motions I have reviewed, but strangely, the following phrase is often missing: “…even disqualification because of appearance must have some basis in fact and be grounded on more than mere conjecture and speculation.” Id.
There is obviously room to argue how strong the evidence supporting an appearance of bias must be, but I find the facts of Madsen instructive. In that case the motion alleged that the trial judge (1) had personal knowledge of disputed evidentiary facts, (2) displayed bias against a financial institution party,6 and (3) allegedly had a financial interest in the outcome. The decision suggests that there was at least some evidence regarding each of the allegations, but viewed objectively the facts neither singly nor together justified disqualification.
– Consider the source of any bias or partiality, and if it can reasonably be said to arise within the course of the litigation, think again. As a general rule, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.7
– Do not hide behind dishonest, emotional, irrational or unfounded accusations of clients set forth in affidavits and advance the motion, while at the same time attempting to suggest distance from the claims. When counsel file a motion (even the typical one paragraph motion that accompanies the most scurrilous client affidavits) counsel have impliedly, and perhaps expressly, adopted the allegations of the client. You may not sit on the sidelines or avoid responsibility for allegations you advance, even without comment.
– Do not use the motion to attempt to create a bias. For example, I have recently seen several motions that attach a copy of a complaint filed with the Judicial Conduct Commission. In most cases judges never become aware of Conduct filings, because the majority are dismissed as meritless and no response is necessary. By attaching a copy of a complaint which the judge will otherwise probably not see, the lawyer or unrepresented party is sharing accusations, warranted or not, that could poison a previously impartial forum. Moreover, the Conduct Commission process is intended to be generally confidential. Although there is no prohibition preventing a complaining party from sharing the fact that he or she made a complaint, use of the complaint to create bias and disqualify a judge is improper, and I suggest that a lawyer is on dangerous ethical ground if he or she shares the existence or content of a complaint indiscriminately or for an improper purpose, such as judge-shopping.
– If you are opposing counsel (and do not think the motion has merit), you are not prohibited from responding, but do not do so routinely. If, however, you believe facts or case proceedings relevant to the motion are mis-stated, a brief response may be helpful. At a minimum, it may aid the reviewing judge’s decision to review the case history more deeply, view video or listen to audio of proceedings, or pose helpful questions to the challenged judge.8 On the other hand, you may agree with the motion. I am aware of nothing that would prevent you from filing a pleading joining in the motion, but as opposing or co-counsel I would not do so unless I could also submit an affidavit regarding facts supporting the joinder, along with a certificate of good faith.
– Don’t be thin-skinned. Argument in an adversarial context is what litigators train for and anticipate. While the judge is not your adversary, don’t confuse probing, even aggressive questioning, with bias. At a minimum, don’t expect more gentleness than you received from the average professor in your first-year of law school. I always review audio and video when such claims are made, and I have yet to find that the record, including the judge’s tone or general demeanor, matches the hyperbole of many complaints (one example from an actual case: “Scoured and smoked on the roasting pit of [the judge’s] wrath.”). It may be that the party or lawyer felt such barbs subjectively, but the objective evidence must be present. Look at the video, or listen to the tape, and maybe have someone else do so, before you file the Motion.
– The fact that the judge has found the lawyer, or the client, in contempt, or imposed sanctions in this or another case is not, standing alone, grounds for disqualification. A 2005 Ethics Opinion9 is helpful by analogy. That opinion addressed whether judges must be disqualified in a proceeding in which the judge has previously (1) found an attorney in contempt, or (2) sanctioned an attorney, or (3) referred an attorney to the Office of Professional Conduct. The Judiciary’s Ethics Advisory Committee determined that the issue is the source of the disqualifying bias, and that generally, if the source is a judicial proceeding, no disqualification is required, unless the “court’s action or opinion is undeserved and indicates a deep-seated antagonism.” The rationale is that a judge finding contempt, among other actions, is “presumably . . . doing what is expected as part of the judge’s duties.” Whether the judge discharges those duties correctly is not for a judge reviewing a disqualification motion to decide.
– The reviewing judge is not an appellate court. Argument that the trial court has ruled incorrectly, without more, is simply not a basis for disqualification and it is not a proper area of inquiry for the reviewing judge. Unless you can establish facts that tend to show the ruling (whether legally correct or not) was the result of bias, prejudice or conflict of interest, do not submit a motion premised on claims of an incorrect ruling. It is not enough to say, as some do, that “the judge could not possibly have reached his or her result in the absence of bias.”
Do not take the foregoing thoughts as a suggestion that motions to disqualify should not be filed. They have their place. They are an important check on the human failings of even the best judges, and they are a valuable tool to promote confidence in the integrity of the judicial process. I think most reviewing judges share my view that even motions that are ultimately ruled to be meritless should be considered without undue sensitivity by both the challenged judge and the reviewing judge. Lawyers and litigants need to be able to express good faith concerns regarding unfairness, but such motions should never be used as a litigation tactic to change judges or simply delay a proceeding.
1. I have referred to the rules without specific reference to either throughout this article, because the substance of each is the same.
2. See Barnard v. Murphy, 852 P.2d 1023 (Ut.Ct.App. 1993), cert. denied, 878 P.2d 1154 (Utah 1994).
3. See Pugh v. Dozzo-Otero, 2005 UT App 203, ¶ 21, 112 P.3d 1247, 1251 (Ut.Ct.App. 2005).
4. The judge should recognize, however, that even when the bias is not objectively present, there are times when recusal or disqualification based on perception is the prudent course. It is not easy to recuse when there is no valid objective basis, but it is better to do so than to allow even a misperception of bias to undermine confidence in the forum and the ultimate decision. Recusal based on unjustified perceptions would normally occur only if the challenged judge so decided. There would likely be no basis in such a case for a reviewing judge to order disqualification, so please do not pass the motion on for review if you recognize that disqualification, while unwarranted, is the better course in the circumstances.
5. The fact that you believe that no judge could have made such a wrong-headed decision in the absence of bias is rarely enough to create the required objective basis for a legitimate challenge, particularly because a challenge of this nature asks the reviewing judge to assume a role more akin to the appellate role. As discussed later in this article, that is not the purpose of the rules.
6. Among other comments that the Utah Supreme Court characterized as “somewhat less than diplomatic,” the judge stated “I have cussed financial institutions,” 767 P.2d at 545.
7. See Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1157 (1994) (quoted in Campbell, Maack & Sessions v. DeBry, 38 P.3d 984, 992 (Utah 2001)).
8. But, please do not file an opposing memorandum in the hope of gaining favor with the judge. Most of us will see the motivation, and think less of you than if you remained silent.
9. Informal Ethics Opinion 05-2, dated November 22, 2005.