Pennsylvania Code › Title 207 - JUDICIAL CONDUCT › Part II - CONDUCT STANDARDS › Chapter 33 - CODE OF JUDICIAL CONDUCT › Subchapter B - FORMAL OPINIONS › Section 15-4 - Disqualification and Recusal

Current through Register Vol. 54, No. 28, July 13, 2024
A function of The Ethics Committee of the Pennsylvania
					 Conference of State Trial Judges (the "Committee") is to provide guidance
					 regarding ethical concerns to judicial officers subject to the Code of Judicial
					 Conduct (the "Code"). Inquiries regarding disqualification and recusal are
					 among the more numerous questions addressed to the Committee. Because of the
					 frequency of these inquiries, the Committee issues this Formal Advisory Opinion
					 to assist judges on a matter of general importance to judicial officers subject
					 to the Code.
This Formal Advisory Opinion is general in nature, does not
					 address a particular situation, and is not in response to a specific request
					 for an advisory opinion from a judicial officer. Therefore, the "rule of
					 reliance" set forth in Preamble (8) of the Code does not apply to this Formal
					 Advisory Opinion.1
"Disqualification" and "Recusal"
The terms "disqualification" and "recusal" have generated
					 some confusion. According to the American Bar Association's Joint Commission to
					 Evaluate the Model Code of Judicial Conduct, the terms are used interchangeably
					 in many jurisdictions.2 In fact, Rules
					 2.7 and
					 2.11 of the ABA Model Code, which
					 are the bases of Rules
					 2.7 and
					 2.11 of the
Pennsylvania
					 Code
, refer only to "disqualification." The Model Code does not refer
					 to "recusal."
Rules
					 2.7 and 2.11 of the
Pennsylvania Code
and their respective Comments use both terms
					 and seem to recognize a distinction between them. Rule
					 2.7 of the
Code
provides:
A judge shall hear and decide matters assigned to the
					 judge, except where the judge has recused himself or herself or when
					 disqualification is required by Rule
					 2.11 or other law.
Comment (1) to Rule
					 2.7 states, in pertinent
					 part:
. . . Although there are times when disqualification or
					 recusal is necessary . . . nwarranted disqualification or recusal may bring
					 public disfavor to the court, and to the judge personally . . . . . . a judge
					 should not use disqualification or recusal to avoid cases that present
					 difficult, controversial, or unpopular issues.
Comment (2) to Rule
					 2.7 provides:
This Rule describes the duty of a judge to decide matters
					 assigned to the judge. However, there may be instances where a judge is
					 disqualified from presiding over a particular matter or shall recuse himself or
					 herself from doing so. A judge is disqualified from presiding over a matter
					 when a specified disqualifying fact or circumstance is present.
See
Rule
					 2.11. The concept of recusal
					 envisioned in this Rule overlaps with disqualification. In addition, however, a
					 judge may recuse himself or herself from presiding over a matter even in the
					 absence of a disqualifying fact or circumstance where-in the exercise of
					 discretion, in good faith, and with due consideration for the general duty to
					 hear and decide matters-the judge concludes that prevailing facts and
					 circumstances could engender a substantial question in reasonable minds as to
					 whether disqualification nonetheless should be required. . . .
Comment (3) to Rule
					 2.7 states:
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 or recusal, even if the judge
					 believes there is no proper basis for disqualification or recusal.
Rule 2.11(A)(4) states:
. . . There shall be a rebuttable presumption that recusal
					 or disqualification is not warranted when a contribution or reimbursement. .
					 ..
And Comment (3) to Rule 2.6 states:
Judges must be mindful of the effect settlement discussions
					 can have, not only on their objectivity and impartiality, but also on the
					 appearance of their objectivity and impartiality. Despite a judge's best
					 efforts, there may be instances when information obtained during settlement
					 discussions could influence a judge's decision making during trial, and, in
					 such instances, the judge should consider whether recusal may be appropriate.
					 See Rule 2.11(A)(1).
In general, "disqualification" is a specified fact,
					 circumstance or condition that makes one ineligible or unfit to serve, or
					 otherwise deprives the judge of the power to preside. "Recusal" is the act of
					 removing or absenting oneself in a particular case because the judge concludes
					 that the prevailing facts or circumstances could engender a substantial
					 question in reasonable minds whether the judge can be
					 impartial.3 Again,
. . . a judge may recuse himself or herself from presiding
					 over a matter even in the absence of a disqualifying fact or circumstance
					 where-in the exercise of discretion, in good faith, and with due consideration
					 for the general duty to hear and decide matters-the judge concludes that
					 prevailing facts and circumstances could engender a substantial question in
					 reasonable minds as to whether disqualification nonetheless should be
					 required.
Rule
					 2.7 Comment
					 (2).4
Historical Perspective
The current Code became effective on July 1, 2014. Prior to
					 that time, Canon 3 C of the then-existing code, titled "Disqualification,"
					 stated:
Judges
should
disqualify themselves in a
					 proceeding in which their impartiality might reasonably be questioned. .
					 ..
Code of Judicial Conduct (Pre-July 1, 2014), Canon 3 C.
					 (Emphasis added.) Some have argued use of the word "should" made the command
					 aspirational or permissive instead of mandatory, leaving the decision to recuse
					 largely to the discretion of the judge.
The Committee rarely gave inquiring judges firm advice
					 about the course of conduct to be taken in a particular situation; it simply
					 issued a memorandum setting forth what it considered to be the relevant case
					 law the judge should consider when exercising his/her discretion. A majority of
					 the Committee felt only the Supreme Court or the Court of Judicial Discipline
					 had the authority to relieve a judge of his/her duty to decide assigned
					 matters; and, as a practical matter, if the Committee advised a judge to recuse
					 in a particular situation, the judge would be almost obliged to follow that
					 advice to avoid having to defend a potential charge of unethical conduct if the
					 judge decided to reject the Committee's advice and proceed to hear the matter.
					 Furthermore, many of the operative facts bearing on recusal are best
					 ascertained and weighed by the inquiring judge rather than by the
					 Committee.
The current Code clarifies the use of the word "should."
					 Preamble (6) provides:
Where a Rule contains a permissive term, such as "may" or
					 "should," the conduct being addressed is committed to the personal and
					 professional discretion of the judge or candidate in question, and no
					 disciplinary action should be taken for action or inaction within the bounds of
					 such discretion. . . .
The implication is the use of the word "shall" connotes an
					 obligation.5 It also clarified that a judge acting
					 within the bounds of discretion should suffer no disciplinary action.
Canon 1
Canon 1 and the Rules under it reflect the broad, general,
					 overarching principles of the Code. Canon 1 states:
A judge shall uphold and promote the independence,
					 integrity, and impartiality of the judiciary, and shall avoid impropriety and
					 the appearance of impropriety.
And Rule
					 1.2 states:
A judge shall act at all times in a manner that promotes
					 public confidence in the independence, integrity, and impartiality of the
					 judiciary, and shall avoid impropriety and the appearance of
					 impropriety.6
Although the Rules under Canon 1, including Rule 1.2,
					 standing alone, can be the basis for discipline, the succeeding Canons and
					 their associated Rules more specifically address situations concerning the
					 judge performing the duties of judicial office (Canon 2), engaging in personal
					 and extrajudicial activities (Canon 3), and participating in political or
					 campaign activities (Canon 4).
Rules
					 2.7 (Responsibility to Decide)
					 and 2.11 (Disqualification)
As noted above, Rule
					 2.7 requires ("shall") a judge to
					 hear and decide assigned matters unless the judge recuses himself or herself,
					 or is disqualified by Rule 2.11 or other law. Rule
					 2.11(A)
					 provides:
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.