CHAPTER 20

DISQUALIFICATION OF JUDGES AND PROSECUTORS

§ 20.01 Disqualification of Judges - Procedure

§ 20.02 - Grounds for Disqualification

§ 20.03 Disqualification of the Prosecutor

§ 20.01

Disqualification of Judges - Procedure

1988 amendments to the criminal rules and to the code of judicial conduct{1} regularized the procedure for motions to disqualify a judge. The motion must be made "as soon as practicable after the cause or ground becomes known[,]"{2} and Rule 12's pretrial motion filing deadline presumably applies when the grounds are known before that date. The worst consequence of late filing, however, is not the usual one of waiver: late-filed motions may not be denied for untimeliness, but the court can impose unspecified sanctions on the lawyer or the party.{3} Anomalously, lesser procedural defects can be fatal: the motion must be accompanied by an affidavit or certificate signed by the lawyer giving the reasons for disqualification and the time the reasons became known,{4} and it may be dismissed for failure to do so.{5}

Once a facially adequate motion for recusal has been filed the judge can either grant it and disqualify herself from the case, or refer it to the administrative judge for trial courts for decision;{6} the judge cannot deny it herself. After referral, the grounds for disqualification must be established by the moving party.{7}

If the papers fail to allege a "colorable claim" for disqualification the judge may be able to deny it herself.{8} There must, as a threshold, be "some plausible theory of taint, some link-by-link explanation of how the conduct, activities, or attitudes of a judge are inconsistent with the judge's ability to preside impartially over a cause involving a party or attorney."{9}

The judge has a third option when the disqualification is based (1) on a claim of apparent bias (i.e., that the judge's impartiality "might reasonably be questioned"),{10} (2) on a possible financial or other interest in the outcome,{11} or (3) on a blood or marital relationship with the people involved.{12} In such cases the judge, instead of disqualifying herself, can disclose the basis for disqualification and give the parties the power to waive it.{13}

Denial of a motion for disqualification is not immediately appealable.{14}

§ 20.02

- Grounds for Disqualification

a. The Judicial Conduct Code Standards

The basic and most commonly asserted reason for disqualification is that the judge's impartiality in a case "might reasonably be questioned[,]"{15 }that is, that "a doubt of impartiality would exist in the mind of a reasonable, disinterested observer."{16} This strict standard "may sometimes bar trial by judges who have no actual bias[,]"{17} but it is necessary because "justice must satisfy the appearance of justice."{18} The test is an objective one, based on reasonable perceptions. There is probably no requirement of scienter: the judge need not have actual knowledge of the disqualifying facts.{19}

Canon 3(C)(2) specifies additional grounds for disqualification, some or all of which can be thought of as particular circumstances raising an appearance of impartiality,{20} to wit, actual bias or prejudice, knowledge of disputed evidentiary facts, and prior professional, financial, and familial involvement with the case or its principals.

The reasonable-appearance test should not be "overused to the point where `recusals would only serve to undermine public confidence in the impartiality of all judges.'"{21} And, in a move away from prior cases, the court has stressed that disqualification should be avoided if false appearances can be dispelled: "If analysis dispels plausible objections, judges should remove the appearance of injustice by explaining why the objections fail."{22} This is so even (in the view of two justices) when the appearance of partiality has been the subject of intense media publicity.{23}

b. The Constitutional Standard

Not all statutory grounds for disqualification are also constitutional grounds.{24}

The due process clause, however, does guarantee trial before an impartial court,{25} and indeed the denial of that right can never be harmless error.{26} The Vermont Constitution specifically ensures that justice in the courts of the state "shall be . . . impartially administered. . . ."{27}

A judge's "direct, personal, substantial, pecuniary interest" in the defendant's conviction violates due process.{28} Beyond that, however, the constitutional rule is uncertain. A judge should disqualify himself or herself in any situation that "would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true."{29} This "average judge" standard, like the statutory reasonable-appearance standard, "may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties."{30}

c. Applications

In In re Hill{31} the Vermont Supreme Court sanctioned a former associate justice of the court for failing to disqualify himself from proceedings involving a lower court judge with whom he had a controversial social relationship. Even a quite casual relationship can raise an appearance of impropriety. In Richard v. Richard the court held that two assistant judges who had known the plaintiff "slightly" for ten years (occasionally playing golf and visiting with him) should have disqualified themselves.{32} By contrast, the Vermont court held without explanation in State v. St. Francis{33} that a judge's ownership of real estate which could be affected by his decision did not require his recusal. In State v. Hunt{34} the court held that the failure of assistant judges to repudiate alleged unethical conduct by the president of the assistant judges association, of which they were members, did not raise an appearance of impropriety.

An adversarial relationship between judge and lawyer does not per se raise an appearance of partiality requiring the judge's recusal in litigation unrelated to the conflict.{35} Nor is recusal required simply because a party sues or threatens to sue the judge.{36} It is required when the allegations have given rise to disciplinary proceedings.{37}

Prior involvement in a case in a judicial or other official capacity rarely requires disqualification. Knowledge of facts obtained in a judicial capacity, in prior proceedings, is not cause for recusal,{38} even if the judge has been exposed to inadmissible evidence.{39} Participation in plea negotiations does not require disqualification at sentencing, so long as the judge does not urge or coerce the defendant to pursue a particular course.{40} Similarly, statements committing a judge to a position on legal issues - in court opinions and even in unofficial writings or speeches - do not require recusal when the issue comes up again.{41} And even an "informal" statement of opinion on the facts of a case before hearing the evidence has been held not to establish bias.{42}

Contempt cases. Disqualification is mandatory in criminal contempt proceedings when the charge of contempt "involves disrespect to or criticism of a judge. . . ."{43} Disqualification is required as a matter of due process for situations involving a personal attack on the judge, and even for less pointed disputes involving "provocative" conduct.{44} This per se recusal rule does not apply to sentencing proceedings, and, although the Vermont court said it was better practice for a judge to disqualify himself from sentencing after a personal attack, it has not required it.{45}

§ 20.03

Disqualification of the Prosecutor

Misconduct or conflict of interest can also require disqualification of the prosecutor.

The law of Vermont has always recognized that the responsibility of the state's attorney to carry out his function to represent the sovereignty of the State of Vermont, requires him to act with impartiality and with the objective of doing justice without regard to his personal feelings. If he cannot so act, his responsibility to his position and profession require him to disqualify himself.{46}

In State v. Hohman{47} the Vermont Supreme Court held that a prosecutor, who ran for reelection on the promise to retry and reconvict a murder defendant whose first conviction had been overturned on appeal, should have been disqualified from the retrial, because "[t]he awesome power to prosecute ought never to be manipulated for personal or political profit." In In re J.S.{48} a prosecutor's public statements to a legislative committee about a pending juvenile case were sufficiently objectionable to require his disqualification.

But whereas trial by a biased judge can never be held harmless, proceedings with a personally or politically motivated prosecutor can be, and the defendant has the burden of showing prejudice. In State v. Hohman{49} the defendant was tried for murder and convicted after trial of manslaughter. Acknowledging prejudice at the plea-bargaining stage, the court nevertheless affirmed the conviction because "as a practical matter, it is apparent that defendant could not have negotiated a plea bargain to an offense lower than manslaughter."{50}

1. A.O. 10.

2. V.R.Cr.P. 50(d)(1).

3. V.R.Cr.P. 50(d)(1)-(2). Compare State v. Daudelin, 151 Vt. 214, 216 (1989); In re B.L., 145 Vt. 586, 590 (1985) (preamendment opinion holding claim of bias waived by failure to move for disqualification).

4. V.R.Cr.P. 50(d)(2). The signature "constitutes a certificate . . . that to the best of the knowledge, information and belief of the attorney . . . , formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or good faith argument for extension, modification or reversal of existing law," and that it is not meant for an improper purpose such as delay or harassment. V.R.Cr.P. 49(d).

5. State v. Carter, 154 Vt. 646 (1990) (mem.).

6. V.R.Cr.P. 50(d)(3).

7. In re T.L.S., 144 Vt. 542 (1984); State v. Ahearn, 137 Vt. 253, 271 (1979); State v. Beshaw, 134 Vt. 347, 351 (1976); In re Shuttle, 131 Vt. 457, 461 (1973).

8. See State v. Carter, 154 Vt. 646 (1990) (mem.).

9. State v. St. Francis, 151 Vt. 384, 392 (1989); In re Recusal of Justices, No. 87-000, slip op. 3 (Vt. May 15, 1987) (unpublished).

10. A.O. 10, Canon 3(C)(1).

11. A.O. 10, Canon 3(C)(2)(c).

12. A.O. 10, Canon 3(C)(2)(d).

13. V.R.Cr.P. 50(d)(4); A.O. 10, Canon 3(D). Cf. Richard v. Richard, 146 Vt. 286, 288 (1985), a preamendment case holding that "[i]f a relationship is substantial enough to merit disclosure by the judge and invite a motion for recusal, then, when such a motion is made, the disclosing judge should, as a general rule, disqualify himself."

14. State v. Forte, No. 88-342 (Vt. Sept. 20, 1988) (mem.); State v. Shaw, No. 88-263 (Vt. July 29, 1988) (mem.).

15. A.O. 10, Canon 3(C)(1).

16. State v. Carter, 154 Vt. 646 (1990) (mem.); State v. Hunt, 150 Vt. 483, 492 (1988); Richard v. Richard, 146 Vt. 286, 288 (1985). Dicta in the Richard case that "`if the slightest question exists, all doubts should be resolved' in favor of disqualification[,]" 146 Vt. at 288, quoting Condosta v. Condosta, 137 Vt. 35, 36 (1979), was explicitly linked to the absence of a procedure (subsequently adopted) for referral of disqualification questions to a different judge. Id.

17. Richard v. Richard, 146 Vt. 286, 288 (1985) (quoting In re Murchison, 349 U.S. 133, 136 (1955)). But see State v. Carter, 154 Vt. 646, 647 (1990) ("To maintain a colorable claim of judicial disqualification, the moving party must affirmatively and clearly show bias or prejudice directed against him").

18. Richard v. Richard, 146 Vt. 286, 288 (1985) (quoting Offutt v. United States, 348 U.S. 11, 14 (1954)).

19. Liljeberg v. Health Services Corp., 486 U.S. 847 (1988) (construing a similarly-worded federal disqualification provision, 28 U.S.C. § 455(a)).

20. This view is suggested by State v. St. Francis, 151 Vt. 384, 391-92 (1989).

21. In re Vermont Supreme Court Administrative Directive #17, 154 Vt. 217, 224 (1990) (quoting State v. Hunt, 147 Vt. 631, 632 (1987)).

22. In re Vermont Supreme Court Administrative Directive #17, 154 Vt. 217, 223 (1990) (quoting Leubsdorf, Theories of Judging and Judge Disqualification, 62 N.Y.U.L. Rev. 237, 278 (1987).

23. State v. Hunt, 147 Vt. 631 (1987) (opinion of Hill and Gibson, JJ.) (judge must not disqualify herself on basis of false reports published as fact in the newspapers). Compare In re Hill, 152 Vt. 548, 575 (1989) (judge's impartiality was being questioned, inter alia, by "speculation in the press"); In re Recusal of Justices, No. 87-000, slip op. 6-7 (Vt. May 15, 1987) (unpublished) (judge may, but need not, recuse herself when publicity compromises the appearance of impartiality "even if recusal would not be required on a fair and objective basis if demanded by a party").

24. Aetna v. Lavoie, 475 U.S. 813, 820-21 (1986).

25. "A fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, 349 U.S. 133, 136 (1955). See also Withrow v. Larkin, 421 U.S. 35 (1975); Ward v. Village of Monroeville, 409 U.S. 57 (1972).

26. Tumey v. Ohio, 273 U.S. 510, 535 (1927). By contrast, a judge's failure to disqualify herself in a civil case, in violation of the canons, may be harmless error. See Liljeberg v. Health Services Corp., 486 U.S. 847, 862 (1988) (harmless error inquiry for violation of federal disqualification statute).

27. Vt. Const., ch. II, § 28.

28. Ward v. Village of Monroeville, 409 U.S. 57, 60 (1972); Tumey v. Ohio, 273 U.S. 510, 523 (1927).

29. Aetna v. Lavoie, 475 U.S. 813, 825 (1986) (quoting Ward v. Village of Monroeville, 409 U.S. 57, 60 (1972), quoting Tumey v. Ohio, 273 U.S. 510, 532 (1927)).

30. Aetna v. Lavoie, 475 U.S. 813, 825 (1986) (quoting In re Murchison, 349 U.S. 133, 136 (1955)).

31. 152 Vt. 548, 575 (1989).

32. Richard v. Richard, 146 Vt. 286, 287-88 (1985).

33. 151 Vt. 384, 391-92 (1989).

34. 150 Vt. 483, 492-93 (1988).

35. In re Recusal of Justices, No. 87-000 (Vt. May 15, 1987) (unpublished) (attorney general's anticipated testimony in judicial conduct board proceedings against two justices did not require justices' recusal in unrelated cases where attorney general was counsel).

36. In re Vermont Supreme Court Administrative Directive #17, 154 Vt. 217, 226 (1990) (dictum).

37. State v. Hunt, 147 Vt. 631, 633 (1987).

38. In re T.L.S., 144 Vt. 536, 543 (1984).

39. In re T.L.S., 144 Vt. 536, 542 (1984).

40. In re Fisher, 156 Vt. 448, 457-58 (1991) (judge merely explained the defendant's options to him).

41. In re Vermont Supreme Court Administrative Directive #17, 154 Vt. 217, 222 (1990).

42. State v. Daudelin, 151 Vt. 214, 216-17 (1989).

43. V.R.Cr.P. 42(b).

44. Taylor v. Hayes, 418 U.S. 488, 502 (1974).

45. State v. Ahearn, 137 Vt. 253, 271-72 (1979); State v. Beshaw, 134 Vt. 347, 351 (1976).

46. In re J.S., 140 Vt. 230, 232-32 (1981).

47. 138 Vt. 502, 505-06 (1980).

48. 140 Vt. 230 (1981).

49. 138 Vt. 502 (1980).