207 Pa. Code §§ 15-4
A function of The Ethics Committee of the Pennsylvania Conference of State Trial Judges (the "Committee") is to provide guidance regarding ethical concerns to judicial officers subject to the Code of Judicial Conduct (the "Code"). Inquiries regarding disqualification and recusal are among the more numerous questions addressed to the Committee. Because of the frequency of these inquiries, the Committee issues this Formal Advisory Opinion to assist judges on a matter of general importance to judicial officers subject to the Code.
This Formal Advisory Opinion is general in nature, does not address a particular situation, and is not in response to a specific request for an advisory opinion from a judicial officer. Therefore, the "rule of reliance" set forth in Preamble (8) of the Code does not apply to this Formal Advisory Opinion.1
"Disqualification" and "Recusal"
The terms "disqualification" and "recusal" have generated some confusion. According to the American Bar Association's Joint Commission to Evaluate the Model Code of Judicial Conduct, the terms are used interchangeably in many jurisdictions.2 In fact, Rules 2.7 and 2.11 of the ABA Model Code, which are the bases of Rules 2.7 and 2.11 of the Pennsylvania Code, refer only to "disqualification." The Model Code does not refer to "recusal."
Rules 2.7 and 2.11 of the Pennsylvania Code and their respective Comments use both terms and seem to recognize a distinction between them. Rule 2.7 of the Code provides:
A judge shall hear and decide matters assigned to the judge, except where the judge has recused himself or herself or when disqualification is required by Rule 2.11 or other law.
Comment (1) to Rule 2.7 states, in pertinent part:
. . . Although there are times when disqualification or recusal is necessary . . . nwarranted disqualification or recusal may bring public disfavor to the court, and to the judge personally . . . . . . a judge should not use disqualification or recusal to avoid cases that present difficult, controversial, or unpopular issues.
Comment (2) to Rule 2.7 provides:
This Rule describes the duty of a judge to decide matters assigned to the judge. However, there may be instances where a judge is disqualified from presiding over a particular matter or shall recuse himself or herself from doing so. A judge is disqualified from presiding over a matter when a specified disqualifying fact or circumstance is present. See Rule 2.11. The concept of recusal envisioned in this Rule overlaps with disqualification. In addition, however, a judge may recuse himself or herself from presiding over a matter even in the absence of a disqualifying fact or circumstance where-in the exercise of discretion, in good faith, and with due consideration for the general duty to hear and decide matters-the judge concludes that prevailing facts and circumstances could engender a substantial question in reasonable minds as to whether disqualification nonetheless should be required. . ..
Comment (3) to Rule 2.7 states:
A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification or recusal, even if the judge believes there is no proper basis for disqualification or recusal.
Rule 2.11(A)(4) states:
. . . There shall be a rebuttable presumption that recusal or disqualification is not warranted when a contribution or reimbursement. . ..
And Comment (3) to Rule 2.6 states:
Judges must be mindful of the effect settlement discussions can have, not only on their objectivity and impartiality, but also on the appearance of their objectivity and impartiality. Despite a judge's best efforts, there may be instances when information obtained during settlement discussions could influence a judge's decision making during trial, and, in such instances, the judge should consider whether recusal may be appropriate. See Rule 2.11(A)(1).
In general, "disqualification" is a specified fact, circumstance or condition that makes one ineligible or unfit to serve, or otherwise deprives the judge of the power to preside. "Recusal" is the act of removing or absenting oneself in a particular case because the judge concludes that the prevailing facts or circumstances could engender a substantial question in reasonable minds whether the judge can be impartial.3 Again,
. . . a judge may recuse himself or herself from presiding over a matter even in the absence of a disqualifying fact or circumstance where-in the exercise of discretion, in good faith, and with due consideration for the general duty to hear and decide matters-the judge concludes that prevailing facts and circumstances could engender a substantial question in reasonable minds as to whether disqualification nonetheless should be required.
Rule 2.7 Comment (2).4
Historical Perspective
The current Code became effective on July 1, 2014. Prior to that time, Canon 3 C of the then-existing code, titled "Disqualification," stated:
Judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned. . ..
Code of Judicial Conduct (Pre-July 1, 2014), Canon 3 C. (Emphasis added.) Some have argued use of the word "should" made the command aspirational or permissive instead of mandatory, leaving the decision to recuse largely to the discretion of the judge.
The Committee rarely gave inquiring judges firm advice about the course of conduct to be taken in a particular situation; it simply issued a memorandum setting forth what it considered to be the relevant case law the judge should consider when exercising his/her discretion. A majority of the Committee felt only the Supreme Court or the Court of Judicial Discipline had the authority to relieve a judge of his/her duty to decide assigned matters; and, as a practical matter, if the Committee advised a judge to recuse in a particular situation, the judge would be almost obliged to follow that advice to avoid having to defend a potential charge of unethical conduct if the judge decided to reject the Committee's advice and proceed to hear the matter. Furthermore, many of the operative facts bearing on recusal are best ascertained and weighed by the inquiring judge rather than by the Committee.
The current Code clarifies the use of the word "should." Preamble (6) provides:
Where a Rule contains a permissive term, such as "may" or "should," the conduct being addressed is committed to the personal and professional discretion of the judge or candidate in question, and no disciplinary action should be taken for action or inaction within the bounds of such discretion. . ..
The implication is the use of the word "shall" connotes an obligation.5 It also clarified that a judge acting within the bounds of discretion should suffer no disciplinary action.
Canon 1
Canon 1 and the Rules under it reflect the broad, general, overarching principles of the Code. Canon 1 states:
A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.
And Rule 1.2 states:
A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.6
Although the Rules under Canon 1, including Rule 1.2, standing alone, can be the basis for discipline, the succeeding Canons and their associated Rules more specifically address situations concerning the judge performing the duties of judicial office (Canon 2), engaging in personal and extrajudicial activities (Canon 3), and participating in political or campaign activities (Canon 4).
Rules 2.7 (Responsibility to Decide) and 2.11 (Disqualification)
As noted above, Rule 2.7 requires ("shall") a judge to hear and decide assigned matters unless the judge recuses himself or herself, or is disqualified by Rule 2.11 or other law. Rule 2.11(A) provides:
A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to the following circumstances:
or
Id.
The enumerated circumstances are not exhaustive. Under the Rule, the judge must disqualify himself/herself in any proceeding in which "the judge's impartiality might reasonably be questioned." Id.
Some of the circumstances outlined in the Rule are straightforward. E.g., there is little room for discretion where the judge or the judge's spouse or domestic partner is a party or acting as a lawyer or is likely to be a material witness in the proceeding, or if the judge served as a lawyer in the matter in controversy. See Rule 2.11(A)(2)(a), (b) and (d), and Rule 2.11(A)(6)(a), respectively. In those situations, the judge is disqualified. However, other circumstances require the exercise of judgment and discretion, e.g., whether the interest of the judge or the judge's spouse or domestic partner is "de minimis." Rule 2.11(A)(2)(c).
Rule 2.11(A)(4) introduces, for the first time, the role of campaign contributions as a basis for mandatory disqualification.7 However, this is not the first time judges have been cautioned that actions taken during a campaign can lead to recusal or disqualification. In Caperton v. A. T. Massey Coal Co., Inc., 556 U.S. 868 (2009), the United States Supreme Court considered whether a state Supreme Court Justice's denial of a recusal motion based upon campaign contributions violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The majority stated:
[U]nder our precedents there are objective standards that require recusal when "the probability of actual bias on the part of the judge . . . is too high to be constitutionally tolerable."
Id. at 872 (citation omitted). The Court found:
[T]here is a serious risk of actual bias-based on objective and reasonable perceptions-when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case is pending or imminent. The inquiry centers on the contribution's relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.
Id. at 884. The Caperton Court concluded the campaign efforts of the litigant's chairman, chief executive officer and president had "a significant and disproportionate influence" in placing the state Supreme Court Justice on the case, id., and this influence, coupled with the temporal relationship between the election and the pending case "offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true."
Id. at 886 (citation omitted). The Court held that, under the circumstances, due process required recusal. Id. at 889-890.8
In all situations where the judge's "impartiality might reasonably be questioned," the ethical standards for disqualification and recusal are an objective test. See, Pepsico v. McMillen, 764 F.2d 458, 460 (7th Cir. 1985) (whether an objective, disinterested observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt that justice would be done in the case).
Exceptions to Mandatory Disqualification
Unless the judge is disqualified for bias or prejudice under Rule 2.11(A)(1), Rule 2.11(C) permits a judge to disclose the basis for disqualification on the record and affords the parties and their lawyers the opportunity to consider, outside the presence of the judge and court personnel, whether they wish to waive the disqualification. If, following the disclosure, the parties and their lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding. The agreement must be incorporated into the record of the proceeding.
In addition, the "rule of necessity" may override the requirement of disqualification. This rule permits a judge to decide a matter even though the judge would ordinarily be required to recuse, where the matter could not otherwise be heard by any other court, or the matter requires immediate judicial action and only that judge is available. Although Comment (3) to Rule 2.11 specifically recognizes that the "rule of necessity" may override the rule of disqualification, the effect of the Comments in the Code is unclear.9 However, regardless of the effect of the Comments, the "rule of necessity" is based on common law and is an accepted part of Pennsylvania's jurisprudence. See, e.g., Stilp v. Commonwealth, 905 A.2d 918, 929 (Pa. 2006) (justices with pecuniary interest in outcome of case may decide challenge to law affecting judicial compensation where all other judges have similar interest and no other provision or procedure exists to consider matter).
When and What Should a Judge Disclose?
Comment (3) to Rule 2.7, addresses the issue of what information a judge should disclose:
A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification or recusal, even if the judge believes there is no proper basis for disqualification or recusal.
Id. at Rule 2.7, Comment (3); see also Rule 2.11, Comment (5).
In deciding whether to disclose information and what information to disclose, a judge should first review the record to gain an understanding of the claims and defenses of the parties. A judge also should determine, to the extent possible, the identity of witnesses and the subject matter of their testimony. In obtaining information, a judge should avoid ex parte communications. Examples of appropriate disclosures include, but are not limited to, the following:
* A judge should disclose facts regarding the judge's current or former association or relationship with a party, a lawyer, or a witness.
* A judge should disclose that he or she provided legal services to a party or witness prior to taking the bench.
* A judge should disclose that a lawyer in the case represents or previously represented the judge.
* A judge should disclose that he or she holds an opinion about the merits of a claim or defense or the credibility of a witness. Even though the judge believes he or she can set aside the opinion and base decisions solely on the evidence and the law, the judge should disclose the opinion.
The Comments explain how a judge should make a disclosure. The disclosure should be on the record. In most instances, the judge will simply state the relevant facts on the record in the presence of the parties and the attorneys. The judge may also make a disclosure in a writing that is made part of the record. A judge may present documents or refer to records in other cases for the parties and lawyers to consider. In any case, after completing the disclosure, the judge should notify the parties that they may move orally or in writing for disqualification or recusal.
Disqualification and Recusal Decision Worksheet
Judges concerned about whether disqualification or recusal is appropriate may consider utilizing the following worksheet:
Conclusion
Ultimately, the issue of disqualification or recusal requires the judge to determine whether his or her impartiality might reasonably be questioned. If the judge has a doubt as to disclosure, it is, of course, more prudent to err on the side of disclosure. A judge should consider the following principle stated by the Supreme Court of Pennsylvania:
Due consideration should be given by to the fact that the administration of justice should be beyond the appearance of unfairness. But, while the mediation of courts is based upon the principle of judicial impartiality, disinterestedness, and fairness pervading the whole system of judicature, so that courts may as near as possible be above suspicion, there is, on the other side, an important issue at stake: that is, that causes may not be unfairly prejudiced, unduly delayed, or discontent created through unfounded charges of prejudice or unfairness made against the judge in the trial of a cause. . ..
Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 489 A.2d 1291, 1299 (Pa. 1985). The Court further stated that judges should not permit "unfounded and ofttimes malicious charges . . . to discredit the judicial system." Id. While frivolous claims will no doubt come before the courts, it is imperative that, first and foremost, judges remain mindful of their duty to fairness, impartiality and judicial independence.
The "Rule of Reliance"
This Formal Advisory Opinion is intended to provide judges with broad guidance regarding one of the Ethics Committee's most frequent areas of inquiry. Because this Formal Advisory Opinion does not address the specific facts of a particular case, a judge does not receive the benefit of the "rule of reliance" by reviewing the Committee's general advice. If a judge has questions concerning the application of these guidelines, the judge should make a written request for advice from a member of the Committee, ordinarily from the representative for the zone in which the judge sits. The Code of Judicial Conduct provides that, although such opinions are not per se binding on the Judicial Conduct Board, the Court of Judicial Discipline, or the Supreme Court of Pennsylvania, action taken in reliance thereon shall be considered in determining whether discipline should be recommended or imposed. CODE, PREAMBLE (8).
1 Preamble (8) states:
"The Ethics Committee of the Pennsylvania Conference of State Trial Judges is designated as the approved body to render advisory opinions regarding ethical concerns involving judges, other judicial officers and judicial candidates subject to the Code of Judicial Conduct. Although such opinions are not, per se, binding upon the Judicial Conduct Board, the Court of Judicial Discipline or the Supreme Court of Pennsylvania, action taken in reliance thereon and pursuant thereto shall be taken into account in determining whether discipline should be recommended or imposed."
2 American Bar Association's Joint Commission to Evaluate the Model Code of Judicial Conduct, The Revised Model Code of Judicial Conduct, Rule 2.11, Comment (1).
3Black's Law Dictionary, 7th Ed.
4 But see Pennsylvania Rule 2.11(A): "A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, . ..
5 Garwin, et al., Annotated Model Code of Judicial Conduct, 2nd Ed., 2011, p.7.
6The Code defines "impartiality":
Absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge.
Terminology, "Impartial, impartiality, impartially."
The Code defines "impropriety" as:
. . . conduct that undermines a judge's independence, integrity, or impartiality.
Terminology, "Impropriety."
7 Rule 2.11 (A) (4) is a "first inroad into complex issues associated with the financing of judicial campaigns. . . ."). Id. at Rule 2.11(A), Comment (6).
8 For example, the Tennessee Code of Judicial Conduct provides:
The fact that a lawyer in a proceeding, or a litigant, contributed to the judge's campaign, or supported the judge in his or her election does not of itself disqualify the judge. Absent other facts, campaign contributions within the limits of the "Campaign Contributions Limits Act of 1995," Tennessee Code Annotated Title 2, Chapter 10, Part 3, or similar law should not result in disqualification. However, campaign contributions or support a judicial candidate receives may give rise to disqualification if the judge's impartiality might reasonably be questioned. In determining whether a judge's impartiality might reasonably be questioned for this reason, a judge should consider the following factors among others:
(1) The level of support or contributions given, directly or indirectly, by a litigant in relation both to aggregate support (direct and indirect) for the individual judge's campaign and to the total amount spent by all candidates for that judgeship;
(2) If the support is monetary, whether any distinction between direct contributions or independent expenditures bears on the disqualification question;
(3) The timing of the support or contributions in relation to the case for which disqualification is sought; and
(4) If the supporter or contributor is not a litigant, the relationship, if any, between the supporter or contributor and (i) any of the litigants, (ii) the issue before the court, (iii) the judicial candidate or opponent, and (iv) the total support received by the judicial candidate or opponent and the total support received by all candidates for that judgeship
Tennessee Code of Judicial Conduct, Rule 2.11, Comment.
9The ABA Revised Model Code of Judicial Conduct 2007 includes Comments as well as Canons and Rules. The Model Code states:
The Comments that accompany the Rules serve two functions. First, they provide guidance regarding the purpose, meaning and proper application of the Rules. They contain explanatory material and, in some instances, provide examples of permitted or prohibited conduct ....
Second, the Comments identify aspirational goals for judges. . ..
ABA Revised Model Code of Judicial Conduct 2007, Scope (3) and (4).
In contrast, the Pennsylvania Supreme Court's order of January 8, 2014, adopting the Pennsylvania Code, does not mention the Comments. The Order states, in part, that "new Canons 1 through 4 of the Code of Judicial Conduct of 2014 and the corresponding Rules are adopted in the attached form."
207 Pa. Code §§ 15-4