Recusal When Judge is Affected by Law

Question

Let us say that a religious group (I will call them the Presleytarian Church of Elvis) somehow becomes so strongly disliked that Congress passes a law which outlaws the sect.

The leaders of the PCoE challenge the new law in court, and it turns out that one of the judges selected to hear an appeal of the case is himself a Presleytarian.

Is the judge required to recuse himself?

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Edit:

I fully understand that such a law is an obvious violation of the First Amendment and that while there may be judges in the US who detest religion, none of them would allow such a law to stand. I only envisioned such a law as an example of a situation where a judge would be expected to recuse himself/herself from a case based on being affected by the law itself, and not because of any relationship with the parties to the case.

Also, I have nothing against Elvis. Or his fans.

Answer 1

The judge would be required to recuse himself in that case, subject to the exception that applies when all judges with jurisdiction over the case would otherwise be disqualified.

Generally a judge must recuse in cases in which the judge as a personal interest in the case (roughly speaking the same kind of interest that would give the judge standing to participate as a party in the case), or when the judge has personal ties to the parties or their counsel that would create an appearance of impropriety.

The controlling provision of Colorado's Code of Judicial Conduct, Rule 2.11, which is typical, and its official commentary, states:

RULE 2.11. Disqualification

(A) A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to the following circumstances:

(1) The judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of facts that are in dispute in the proceeding.

(2) The judge knows that the judge, the judge's spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person is:

(a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party;

(b) acting as a lawyer in the proceeding;

(c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or

(d) likely to be a material witness in the proceeding.

(3) The judge knows that he or she, individually or as a fiduciary, or the judge's spouse, domestic partner, parent, child, or other member of the judge's family residing in the judge's household, has an economic interest in the subject matter in controversy or in a party to the proceeding.

(4) The judge, while a judge or a judicial candidate, has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.

(5) The judge:

(a) served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter during such association;

(b) served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding, or has publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy;

(c) was a material witness concerning the matter; or

(d) previously presided as a judge over the matter in another court.

(B) A judge shall keep informed about the judge's personal and fiduciary economic interests, and make a reasonable effort to keep informed about the personal economic interests of the judge's spouse or domestic partner and minor children residing in the judge's household.

(C) A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(1), may disclose on the record the basis of the judge's disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification. If, following the disclosure, the parties and lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding. The agreement shall be incorporated into the record of the proceeding.

(D) In limited circumstances, the rule of necessity applies and allows judges to hear a case in which all other judges also would have a disqualifying interest or the case could not otherwise be heard.

OFFICIAL COMMENT

[1] Under this Rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific provisions of paragraphs (A)(1) through (5) apply. The term “recusal” is sometimes used interchangeably with the term “disqualification.”

[2] A judge's obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed.

[3] The rule of necessity may override the rule of disqualification. The rule of necessity is an exception to the principle that every litigant is entitled to be heard by a judge who is not subject to disqualifications which might reasonably cause the judge's impartiality to be questioned. The rule of necessity has been invoked for trial court and court of appeals judges where disqualifications exist as to all members of the court and there is no other judge available. It has been invoked as to the supreme court when all or a majority of its members have a conflict of interest; the importance of having the court render a decision overrides the existence of the conflict, which might otherwise leave litigating parties in limbo. Under the rule of necessity, a judge might be required to participate in judicial review of a judicial salary statute, or might be the only judge available in a matter requiring immediate judicial action, such as a hearing on probable cause or a temporary restraining order. In matters that require immediate action, the judge must disclose on the record the basis for possible disqualification and make reasonable efforts to transfer the matter to another judge as soon as practicable. Rather than deny a party access to court, judicial disqualification yields to the demands of necessity.

[4] The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not itself disqualify the judge. If, however, the judge's impartiality might reasonably be questioned under paragraph (A), or the relative is known by the judge to have an interest in the law firm that could be substantially affected by the proceeding under paragraph (A)(2)(c), the judge's disqualification is required.

[5] A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.

[6] “Economic interest,” as set forth in the Terminology section, means ownership of more than a one percent legal or equitable interest in a party, or a legal or equitable interest in a party of a fair market value exceeding $5,000, or a relationship as a director, advisor, or other active participant in the affairs of a party, except that: (1) Ownership in a mutual or common investment fund that holds securities, or of securities held in a managed fund, is not an “economic interest” in such securities unless the judge participates in the management of the fund;

(2) securities held by an educational, religious, charitable, fraternal, or civic organization in which the judge or the judge's spouse, domestic partner, parent, or child serves as a director, officer, advisor, or other participant is not an “economic interest” in securities held by the organization;

(3) the proprietary interest of a policy holder in a mutual insurance company, of a depositer in a financial institution or deposits or proprietary interests the judge may maintain as a member of a mutual savings association or credit union, or a similar proprietary interest is an “economic interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest; and

(4) ownership of government securities is an “economic interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.

The general rule of 2.11(A) and also 2.11(A)(2)(c) would apply in this case.

Answer 2

The judge is required to recuse himself

The general principle governing such situations is the principle that the rule of law requires impartial judges. This requirement is often expressed by the well-known adage: no man is allowed to be judge in his own case.

If this case ends up in federal courts, (which it might not, as ohwilleke explains in the comments), recusals will be governed by 28 USC § 455. Disqualification of justice, judge, or magistrate judge. In this case, where the statute bans the judge's religion, the judge would fall afoul of three of the conditions under which the statute requires him to recuse himself:

• when his impartiality "might reasonably" be questioned;
• when the judge has "a personal bias or prejudice concerning a party..." and,
• when anyone in his extended family has "an interest that could be substantially affected by the outcome of the proceeding..."

The decision of whether to recuse is left to each judge. Decisions by lower court judges can be appealed. For obvious reasons, those of Supreme Court justices cannot be appealed.

The Federal Judicial Center's, Judicial Disqualification: An Analysis of Federal Law, 3d ed., released last week, offers an exhaustive consideration of the issues and law. Justice Scalia's memo explaining why he was not recusing himself in a case involving Dick Cheney, whom he knew, offers insight into how one justice viewed recusal.