Recusal: Impartiality re Party and Counsel

December 20, 1989

CJE Opinion No. 89-8

Your letter indicates that, since 1986, you have heard a series of civil cases involving the same plaintiff. In two such cases, after trial you found for the defendants and the plaintiff has appealed. Several other such cases have been settled on terms favorable to the respective defendants. The last such case, N.H. vs. I.R., after a trial lasting several days is awaiting your decision.

After the trial was completed but before post-trial briefs were filed, you were nominated by the Governor as a justice in a different department of the Trial Court. The plaintiff common to all the cases described above appeared before the Governor's Council to oppose your confirmation. You have reason to believe that the plaintiff and his current attorney actively lobbied with individual members of the Council against your confirmation. That attorney, who has close personal ties to one member of the Council, has also had several other unrelated matters pending before you over the years. In one such recent matter, you did in fact recuse yourself in view of his opposition to your confirmation.

You have now been asked to recuse yourself in N.H. vs. I.R. You state that you "have examined [your] own conscience and determined that [you] have no personal bias or prejudice towards N.H. and that his conduct in opposing [your] confirmation would not influence [your] decision in a case involving him." While "as a matter of discretion" you would "normally" allow this motion to recuse, you are reluctant to do so because of the resultant hardship on the defendant and the burden a new trial would place on the court. You request an advisory opinion as to whether you should disqualify yourself pursuant to Canon 3(C)(1) and 3(C)(1)(a) of the Code of Judicial Conduct (Supreme Judicial Court Rule 3:09):

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: (a) he has a personal bias or prejudice concerning a party . . . .

The quoted portion of Canon 3(C)(1)(a) expresses a dual test, one subjective and one objective. In Lena v. Commonwealth 369 Mass. 571, 575 (1976), Kaplan, J. described their relationship as follows:

Faced, then, with a question of his capacity to rule fairly, the judge was to consult first his own emotions and conscience. If he passed the internal test of freedom from disabling prejudice, he must next attempt an objective appraisal of whether this was "a proceeding in which his impartiality might reasonably be questioned."

Canon 3(C)(1) goes on to list several particular examples of situations where the judge's impartiality might reasonably be questioned, (1) but those examples shed no light on the question you pose.

In CJE Advisory Opinion 89-2 (1989), we indicated that we would be reluctant as a committee to advise judges in making recusal decisions on a case-by-case basis. Obviously this committee is not in a position to advise a judge with respect to the subjective test; here, "[i]n general, the question of disqualification is left to the judge's discretion." Commonwealth v. Gogan, 389 Mass. 255, 259 (1983). The same is true, although to a lesser extent, of the general objective inquiry -- Might the judge's impartiality reasonably be questioned? -- where none of the specific examples listed in the canon is applicable. These are questions of judgment which will often turn on slight differences of factual context, including such factors as the inconvenience to the court and the parties if the judge should decide to recuse himself or herself. Doubtless there will be situations presenting a general question of a type apt to recur where the objective appearance of partiality is so manifest as to call for expansion of the canon's list of particular factual contents in which recusal is called for. If particular cases should arise presenting such situations, we will of course so inform a judge who seeks an advisory opinion on the subject. Except in such cases where recusal is called for automatically on the basis of an objective criterion, we shall, as indicated in CJE Advisory Opinion 89-2 (1989), decline to furnish a recommendation as to how a judge should exercise his judgment in deciding whether to recuse himself or herself.

Moreover, Supreme Judicial Court Rule 3:11(2), the rule establishing this committee, states that the "[c]ommittee . . . shall not render opinions . . . on issues pending before a court, agency, or commission, including the Judicial Conduct Commission." The issue that you present is pending before a court, because, as your letter indicates, you have been asked to rule on a motion that you disqualify yourself in the factual setting that forms the subject of your request. Your ruling on this motion, like any other ruling you are called upon to make in a pending case, is subject to review in the regular course by the appellate courts.

For all the above reasons we must respectfully decline to advise you on the question you put. (2)

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1. These include situations where the judge has personal knowledge of disputed evidentiary facts, where the judge or a member of his family has a financial or other property interest in the subject matter in controversy, where the judge or a family member is likely to be a material witness in the proceeding or is acting as a lawyer with respect thereto, or where the judge before becoming a judge or one of his law partners served as a lawyer in the case. The last example was considered in CJE Advisory Opinion 89-2 (1989).

2. Prof. Andrew Kaufman excused himself from participating in the committee's consideration of this request.