Attorney Ethics Counsel

December 30, 2015

The Catch-22 of Seeking Judicial Recusal: Too Much or Not Enough?

A recent Order from the Central District of California illustrates the challenge litigants face when seeking judicial recusal of a federal judge: the request will be denied if you don’t include enough details about potential bias; however, including lots of details about potential judicial bias can be awkward, to say the least, if your request fails.

In Jones v. Porsche Cars of North America, plaintiffs filed a putative class action alleged defective design in the dashboards of Porshes, namely that light-colored dashboards were a hazard to driving because they created a glare on the windshield.  Consistent with his ethical duties, the assigned judge disclosed several facts to the parties that he believed they might consider relevant to the question of disqualification.  First, that he owned a Porsche with a black dashboard.  Second, that between 1989 and 1991, he worked as an associate at a law firm that defended Porsche.  Third, that his Porsche defense work was for a partner who also happened to be local counsel for Porsche in Jones

The judge stated that he did not believe that these facts warranted his recusal.  Plaintiffs apparently disagreed, and filed a request for recusal pursuant to 28 U.S.C. § 455.  However, plaintiffs’ request relied “soley on [the Judge’s] disclosures” without “further elaboration” or “arguments as to why a reasonable person with knowledge of all the facts would conclude that Judge Wu’s impartiality might reasonably be questioned in this lawsuit.”  Plaintiffs’ recusal request was therefore denied because it failed to meet the “substantial burden to show that the judge is biased.”

This situation illustrates the complex balance that a litigant faces when requesting recusal of a federal judge.  The judge is presumed to be impartial, and the requesting party must establish that the judge is biased, against an objective standard, with detailed facts.  Without sufficient facts—putting aside the issue of how a party could obtain such facts—the request will be denied.  If you request recusal with detailed facts to show, objectively, that the judge will be biased against you, your recusal request may be granted.  But if that detailed request is denied, litigating in front of the judge whom you previously accused of bias, in great detail, may be somewhat uncomfortable.  So, if you are a litigant requesting judicial recusal, make sure your request is as detailed as possible, and make sure you don’t lose.

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