Consistent with Professor Geyh’s recommendation, Arizona rules prohibit the subject judge from ruling on a disqualification motion filed against the judge. Pending review of the disqualification motion by the presiding judge or the presiding judge’s designee, the subject judge may enter only temporary orders that are absolutely necessary to prevent immediate and irreparable injury. After the disqualification motion is filed with an attached affidavit setting forth the basis for the request, the opposing party may file a response. The presiding judge then considers the submissions and either rules or sets a hearing on the motion. Although the presiding judge typically has time to rule without delaying the case, a disqualification motion can bring proceedings to a screeching halt. I remember preparing for a hearing years ago when I received a motion for disqualification. The self-represented defendant asserted that he and I dated in high school (we didn’t) and avowed that I was still brokenhearted over the split (I wasn’t). Before I could proceed further, the department presiding judge had to swoop in, verify I was not the defendant’s dejected ex-girlfriend, and rule on the disqualification motion.
Arizona also permits parties in most case types to request a change of their judicial officer as a matter of right. If a timely notice is filed, the case is then transferred to a different judicial officer. To be clear, this process is a minor inconvenience in a court like mine with a notice being filed against a judge and not the judge. The case is transferred to one of my 97 colleagues. This process is more of a burden when the notice is filed against the only judge, and the court is required to find a judicial officer from somewhere else to preside over the case.
Now, my additional recommendation for Professor Geyh’s list: Create a court culture committed to procedural fairness. When I use the term “procedural fairness,” I mean the perception of fairness (and, of course, I encompass in that the term “actual fairness”).
After my appointment in 2009, I met with our court’s contract psychologist. Her task was not to evaluate the actual fairness of my decisions; rather, it was to help me understand how lawyers, litigants, and jurors perceived whether I was fair. She was asked to assist me in comprehending how people felt when they saw the furrow of my brow or noticed that I took notes when certain witnesses testified and sat back and simply listened to the testimony of others. She asked that I select the observation cases that would likely push my patience and test all the tools I had nestled under my robe in my judicial tool belt. I picked some doozies, and she discretely recorded my hearings from the back of the courtroom.
Later, she showed me the tells of when I thought someone was being dishonest. She also made sure I understood how my behaviors were likely perceived by litigants and lawyers. She assisted me in identifying potential areas of bias given my life experiences and made me consciously aware of my triggers. As judges, we all know the triggers that drive us bonkers. Mine? Please don’t come to court unprepared; I should not know your case better than you. Never disrespect anyone in my courtroom, and try not to spill stuff in my courtroom. But my real triggers—the subconscious ones—we did exercise after exercise to find those.
Make no mistake, perfect impartiality is impossible, but, gosh, courts should try hard to achieve this result—yes, by consistently being fair and impartial and stepping aside when we can’t be, but also by working to ensure that our actions and words consistently demonstrate fairness and impartiality.
Let’s not forget that procedural fairness is important whether litigants (hopefully with a lid on their coffee cup) stand before a judge or, today, whether they appear as a tiny image on our computer screens. Procedural fairness now includes an evaluation of where my camera is located and whether litigants and lawyers see my eyes or the side of my head. Learning to control a digital courtroom? Well, that takes a whole new judicial tool belt.
I generally agree with Professor Geyh regarding his recommended procedural tools to improve the fairness of our judicial decisions, and I find those recommendations work well in practice. However, I also urge courts to appreciate that sometimes the perception of unfairness is equally damaging. It isn’t easy to hear that our conduct and behaviors may make people skeptical of our impartiality, but it is important that judges remain open to critical feedback and that we remain committed to ensuring that the courtroom is and feels like a place for equal justice for all. Every day. Every time.