F. JUDICIAL DISQUALIFICATION AND RECUSAL

1. 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

2. 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

3. 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))

4. 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)?

5. 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?

6. 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

7. 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?

8. 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?

9. 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