SOURCES OF RULES  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 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

Problem pp  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 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))

Problem pp 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)?

Problem pp 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?

Problem pp 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

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?

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?

Caperton v. A.T. Massey Coal Co.(U.S. 6/8/09)  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