2010-09 (May 3, 2010)
Disclosure/Disqualification; Canons 2 & 3

Issue: Must a Judicial Official sua sponte recuse from presiding in a family case on the basis that a party to the case has testified before the legislature in opposition to the Judicial Official’s reappointment?

Response: Based upon the information provided, the Committee unanimously determined that a Judicial Official is not automatically disqualified from a case merely because a party to the proceeding has testified against a Judicial Official at his/her legislative reappointment hearing. The Committee determined that the following Canons are applicable: Canon 2(a) (requiring a judge to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary) and Canon 3(c)(1)(A) (requiring a judge to disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including instances where a judge has a personal bias or prejudice concerning a party). Pursuant to Canon 3(c)(1)(A), the Judicial Official should consider, in light of all the circumstances, whether he/she harbors an actual bias against the party. If so, the Judicial Official must disqualify him/herself from the case. If the Judicial Official determines that he/she is not actually biased, the Judicial Official should consider, pursuant to Canon 3(c)(1), whether to recuse on the ground that the Judicial Official’s impartiality might reasonably be questioned. In the Committee’s view, the fact that a party to a case before a judge has testified before the legislature to oppose a judge’s reappointment does not automatically mean that the judge will harbor actual bias or that his/her impartiality might reasonably be questioned. Cf. Canon 3(c)(3) (stating that “[a] judge is not automatically disqualified from sitting on a proceeding because a lawyer or party to the proceeding has filed a lawsuit against the judge or filed a complaint against the judge with the judicial review council”). Instead, the Judicial Official should consider the issue of sua sponte recusal in light of all the facts and circumstances of the case and the party’s actions. Finally, if the Judicial Official continues on the case and a motion to disqualify the Judicial Official is filed by a party, the Judicial Official should undertake the appropriate steps to determine the disqualification issue as presented.