July 08, 2014 Top Story

Adverse Rulings Insufficient to Show Judicial Bias

Standard for recusal remains a high hurdle to overcome

Jannis E. Goodnow

The judge has ruled against your client on every pretrial motion, including your motion for recusal and your opponent’s motion for sanctions. Could the judge be biased against you or your client? You will have to show more than adverse rulings to disqualify the judge for bias.

In Watkins v. Smith, the plaintiff, a non-lawyer authorized to represent clients before certain administrative tribunals, was recorded offering to waive a client’s fee in exchange for a romantic or sexual relationship. When the non-lawyer received a letter from his now-former client’s attorney offering to settle a sexual harassment claim based on the recording, he sued the former client and her attorneys for racketeering, anti-trust violations, and other claims. He alleged that the defendant attorneys had used the former client as an “operative” to trick him into making the recorded statements as part of a conspiracy to compete unfairly with his business.

The trial court made several rulings adverse to the plaintiff, including dismissal of the complaint, sanctions for frivolous pleading, and denial of the plaintiff’s motion for recusal for bias or lack of impartiality under 28 U.S.C. § 455(a). The statute requires disqualification when a federal judge’s “impartiality might reasonably be questioned” or if he or she has “a personal bias or prejudice concerning a party.” The plaintiff appealed those and other adverse rulings, arguing that the trial judge had exhibited bias and lack of impartiality as a result of racial and economic prejudice, dishonesty, senility, and fraud.

In support of his appeal of the trial court’s refusal to recuse, the plaintiff argued that the district court had “engaged in unfair scheduling orders and requirements, exempted the defendant-appellees from following any local court rules, electronic court filing rules, or federal procedural rules, and issued sua sponte orders and snap decisions in favor of the defendant-appellees.” The defendants countered that the examples of judicial bias alleged by the plaintiff were correct rulings and case management decisions—which should not be reversed on appeal—and were not evidence of bias or prejudice.

Judicial Disqualification Requires Bias from Extrajudicial Source

The U.S. Court of Appeals for the Second Circuit agreed with the defendants and upheld all of the trial court’s rulings against the plaintiff, including the denial of the plaintiff’s motion for recusal based on judicial bias. The appellate court held that the plaintiff’s displeasure with the trial court’s case management and rulings was not a basis for recusal. Rather, the bias or prejudice mandating judicial disqualification must “stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge has learned from his participation in the case.”

The appellate court further held that both the complaint and appeal were frivolous. In upholding the award of sanctions against both the plaintiff and his attorney, the appellate court noted that the plaintiff’s displeasure with the trial court’s rulings did not justify “the utterly unsubstantiated allegations” of bias and impropriety asserted against the district court.

Making a Record Is Crucial to Show Judicial Bias

According to the U.S. Supreme Court, “a judge should be disqualified [under 28 U.S.C. § 455(a)] only if it appears that he or she harbors an aversion, hostility, or disposition of a kind that a fair-minded person could not set aside when judging the dispute.” In Watkins, there was not even a suggestion of actual bias, says Laurence F. Pulgram, San Francisco, CA, cochair of the ABA Section of Litigation’s Federal Practice Task Force. “The plaintiff’s declaration [in support of the motion for recusal] was just name-calling on the judge, which never works,” he adds.

“We’ve all had difficult judges,” notes Oran Whiting, Chicago, IL, cochair of the Section of Litigation’s Ethics and Professionalism Committee, adding, “sometimes you just have to deal with it.” But “if you get the idea that the judge has a problem with you or your client, that is a different case,” he points out. “You then have a duty to your client to make a record that could result in a successful appeal,” Whiting says.

“Document, document, document,” suggests Whiting, and “take advantage of every opportunity to take an interlocutory appeal,” he adds. On appeal, “isolate, specify, and explain the particular language or conduct of the judge that demonstrates attitudes without justification,” advises Pulgram, noting that “it will be hard.” Be creative in your research and look for grounds for recusal under Section 455 other than bias, according to Whiting, such as whether the judge or his or her relatives may have an interest in the matter.

In addition to evidence of a judge’s biased attitudes, litigators seeking recusal must show that the bias resulted in an adverse decision on the merits. This can be demonstrated “by a compelling presentation [on appeal] that your position was right and that the only explanation for the adverse ruling is bias,” according to Pulgram. “Make sure you’re not being overly sensitive or making a mistake in your legal positions,” agrees Whiting.

Current Recusal Analysis Does Not Address Implicit Bias

While recusal requires objective evidence of explicit bias, “implicit bias recognizes that we all bring preconceptions to our work and that they are difficult to measure,” explains Pulgram. “The possibility of implicit bias has not been integrated into the recusal analysis. The legal analysis has not kept up with the social science,” he adds.

Jannis E. Goodnow is an associate editor for Litigation News.

Keywords: recusal, disqualification, judicial bias, sanctions

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