Me. Code. Jud. Cond. 2.11
A judge who disqualifies or recuses himself or herself in any proceeding need not state the grounds for disqualification or recusal.
Me. Code. Jud. Cond. 2.11
Advisory Notes - 2015
In discussion of this issue, the term "recusal" is used interchangeably with the term "disqualification," which is why both terms are incorporated. See Comment [1] to ABA Model Rule 2.11. Rule 2.11 represents a substantial revision and reordering of 1993 Canon 3(E) addressing disqualification or recusal. It also differs from ABA Model Code Rule 2.11, which includes more references to issues relating to judicial elections and campaigns.
Generally, a judge must recuse on motion made by any party only if (i) the judge's "impartiality might reasonably be questioned" or (ii) the judge has a "personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding." Charette v. Charette, 2013 ME 4, ¶ 21, 60 A.3d 1264; Decambra v. Carson, 2008 ME 127, ¶ 8, 953 A.2d 1163; see also Hughes v. Black, 156 Me. 69, 74-81, 160 A.2d 113, 116-19 (1960) (providing detailed discussion of recusal policy when a personal relationship or personal interest in a matter is an issue).9
9 A useful survey of developments and current practice regarding recusal has been provided by a Judge of the United States Court of Appeals for the Ninth Circuit in a presentation for a 2011 symposium on Review of Litigation at the University of Texas School of Law. See M. Margaret McKeown, To Judge or Not to Judge: Transparency and Recusal in the Federal System, 30 Rev. Litig. 653 (2011). Review of that survey and several of the opinions cited in it demonstrate that close recusal questions tend to be highly fact specific, requiring significant investigation before a determination can be made that an ethical violation may have occurred and recusal is warranted.
Applying 1993 Canon 3(E), the Law Court has observed:
| Maine Code of Judicial Conduct Canon 3(E) establishes two instances where a judge's recusal or disqualification from a case is warranted. First, "[a] judge shall disqualify himself or herself on the judge's own initiative in any proceeding in which the judge has reason to believe that he or she could not act with complete impartiality." M. Code Jud. Conduct 3(E)(1). "This is a purely subjective test which the judge should apply based on his or her own understanding of personal feelings or attitudes or factual matters involved in the proceeding." Advisory Comm.'s Notes to the M. Code Jud. Conduct at 34 (effective Sept. 1, 1993) (hereinafter, "Advisory Notes"). "A judge acting under this subsection . . . need not state the grounds of disqualification." M. Code Jud. Conduct 3(E)(1). |
| Second, "[a] judge may disqualify himself or herself on the judge's own initiative without stating the grounds of disqualification, and shall disqualify himself or herself on a motion for recusal made by a party, in any proceeding in which the judge's impartiality might reasonably be questioned." M. Code Jud. Conduct 3(E)(2). Canon 3(E)(2) establishes an objective test that asks, "[r]egardless of the judge's own belief about his or her ability to act impartially, [whether] the judge's impartiality might reasonably be questioned by others." Advisory Notes at 34-35. Canon 3(E)(2) also sets forth a nonexhaustive list of examples of when a judge's impartiality might reasonably be questioned, such as when "the judge has a personal bias or prejudice concerning a party or a party's lawyer." M. Code Jud. Conduct 3(E)(2)(a). |
Samsara Mem'l Trust v. Kelly, Remmel & Zimmerman, 2014 ME 107, ¶¶ 32-33, 102 A.3d 757 (alterations in original).
Recusal "is a matter within the broad discretion of [a] trial court." State v. Atwood, 2010 ME 12, ¶ 20, 988 A.2d 981; Johnson v. Amica Mut. Ins. Co., 1999 ME 106, 733 A.2d 977. "Accordingly, a decision by a trial judge not to recuse is reviewed [on appeal] for an abuse of discretion." Atwood, 2010 ME 12, ¶ 20, 988 A.2d 981; In re Bulger, 710 F.3d 42, 45 (1st Cir. 2013); Estate of Dineen, 1998 ME 268, ¶ 8, 721 A.2d 185. Further, "'[t]he mere belief that a judge might not be completely impartial is insufficient to warrant recusal.'" Samsara, 2014 ME 107, ¶ 38, 102 A.3d 757 (quoting Atwood, 2010 ME 12, ¶ 21, 988 A.2d 981).
A claim of bias or a motion to recuse asserted only after an adverse ruling should be examined with caution, particularly if the basis for any objection was known, or could with reasonable diligence have been known, prior to the hearing leading to the questioned judicial action. See Samsara, 2014 ME 107, ¶¶ 25-27, 102 A.3d 757; Charette, 2013 ME 4, ¶ 22, 60 A.3d 1264; In re Kaitlyn P., 2011 ME 19, ¶¶ 8-9, 12 A.3d 50. As the Second Circuit has noted, "First a prompt application [to recuse] affords the district judge an opportunity to assess the merits of the application before taking further steps that may be inappropriate for the judge to take. Second, [it] avoids the risk that a party is holding back a recusal application as a fall-back position in the event of adverse rulings on pending matters." In re International Business Machines Corporation, 45 F.3d 641, 643 (2d Cir. 1995).
When recusal is warranted, "a judge is under no obligation to disclose the grounds for disqualification." Atwood, 2010 ME 12, ¶¶ 22, 25, 988 A.2d 981. A judge need not disclose the grounds for disqualification because the reasons for a judge's disqualification may be private and personal and/or unrelated to the proceedings.
Prior Rulings, Information Gained in the Course of Judicial Proceedings
The fact that a judge has ruled against a party or has learned of information adverse to a party in the proper course of judicial proceedings is not a basis for recusal. Dalton v. Dalton, 2014 ME 108, ¶ 25, 99 A.3d 723; In re Michael M., 2000 ME 204, ¶¶ 11-14, 761 A.2d 865; see also Stevenson v. Bank of America, N.A., 597 F. App'x 4 (2d Cir. 2015). "Without more, an adverse ruling does not support a claim for recusal . . . and the on-the-record hearing, of which Appellants had notice and neglected to attend, does not constitute an improper ex parte contact." Stevenson, 597 F. App'x at 6; Liteky v. United States, 510 U.S. 540, 555-556 (1994); Khor Chin Lim v. Courtcall, Inc., 683 F.3d 378, 380 (7th Cir. 2012); State v. Lewis, 1998 ME 83, ¶ 3, 711 A.2d 119.
When a judge has ruled against a party at an earlier stage of a proceeding and uses information gained in the earlier proceeding in decision-making at a later stage of the proceeding, use of that information does not make the judge a material witness in the proceeding, see Rule 2.11(A)(5)(c), or otherwise require recusal, as the judge's knowledge of the facts was gained in the course of the proceeding. In re C.M., 103 A.3d 1192 (N.H. 2014) (applying an identically worded Rule 2.11(A)(5)(c) in a child protective case when the judge who presided in an earlier neglect proceeding also presided at the termination of parental rights proceeding); see also Brown v. Oil States Skagit Smatco, 664 F.3d 71, 78-81 (5th Cir. 2011) (magistrate judge who used information gained at settlement conference as a basis for later imposition of sanctions not required to recuse as material witness, and information was not from an "extrajudicial" source but was learned in the same or a related proceeding).
But in State v. Rameau, 685 A.2d 761, 763 (Me. 1996), the Law Court recognized an exception to this general rule and noted that a judge is required to recuse because of opinions based on information acquired in that proceeding or a prior judicial proceeding if the judge's opinions "display a deep-seated favoritism or antagonism that would make fair judgment impossible." See also Brown, 664 F.3d at 81 ("[W]e have explained that '[o]pinions formed by the judge that are based on . . . events occurring during the proceedings do not constitute a basis for recusal unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.'" (citation omitted)).
The First Circuit has observed that "[r]ecusal is only required by a state of mind 'so resistant to fair and dispassionate inquiry as to cause a party, the public, or a reviewing court to have reasonable grounds to question the neutral and objective character of a judge's rulings or findings.'" In re Lupron Marketing & Sales Practices Litig., 677 F.3d 21, 36 (1st Cir. 2012) (quoting In re United States, 158 F.3d 26, 34 (1st Cir. 1998)); see also Nickerson-Malpher v. Baldacci, 522 F. Supp. 2d 293, 295 (D. Me. 2007).
Prior Professional and Financial Relationships
Judicial participation in matters involving former law firms, law partners, employees, or clients can raise disqualification issues. Prior professional relationships and related matters regarding financial issues and interests of family members are also addressed in Rule 3.11 and its Advisory Notes.
In Allphin v. United States, 758 F.3d 1336, 1343-1344 (Fed. Cir. 2014), the Federal Circuit addressed a recusal motion directed at a judge who from 1976 to 1996 had been an attorney for the Department of Justice and then the Navy, a party to the pending case. Although the plaintiffs asserted that they doubted the judge's impartiality, the court held that the standard for whether the judge's impartiality might reasonably be questioned
| is an objective test that mandates recusal "when a reasonable person, knowing all the facts, would question the judge's impartiality." . . . Appellants' subjective beliefs about the judge's impartiality are irrelevant. The judge's prior work for the Department of Justice and the Navy over seventeen years ago does not raise a reasonable question as to her impartiality. A "mere prior association [does not] form a reasonable basis for questioning a judge's impartiality." |
Id. at 1344 (citations omitted).
In In re Martinez-Catala, 129 F.3d 213, 221 (1st Cir. 1997), the First Circuit addressed judicial participation in cases in which former employees or former clients are involved:
| It is common knowledge in the profession that former law clerks practice regularly before judges for whom they once clerked. Courts often have prophylactic rules that forbid a former law clerk from appearing in that court for a year or more after the clerkship, see, e.g., 1st Cir. R. 46, but no such rule is claimed to have been violated in this case. And any lawyer who studies a judge's past rulings can make an informed guess as to how the judge is likely to approach an issue. |
| So, too, appointees to the bench have sometimes had a former active connection with a political party. But many judges also sit, usually after a self-imposed cooling off period, on cases involving former clients (assuming always no current financial ties and that the judge did not work on the same or a related matter while in practice). |
Noting the highly fact specific nature of such questions, the Massachusetts Appeals Court ordered that a judge should be disqualified in a case when a party was represented by the judge's former law firm when, after leaving the firm, the judge had been involved in litigation of separation compensation issues with the firm. Commonwealth v. Morgan RV Resorts, LLC, 992 N.E.2d 369 (Mass. App. Ct. 2013).
| The facts here do not present the ordinary situation of a judge who was affiliated with a firm before joining the bench, where recusal from that firm's cases may be warranted for a limited time. See generally Flamm, Judicial Disqualification: Recusal and Disqualification of Judges §8.9, at 225-229 (2d ed. 2007), and authorities cited. Nor is it simply the case of a partner who left to start a competing firm, which may give rise to some discord. The judge's relationship with [the firm] was more difficult and is distinguishable from those that we have found in other recusal cases. As the recusal determination "is extremely fact driven," we must consider the totality of the circumstances to determine whether recusal was warranted. |
Id. at 376.
Similarly, a judge presiding in matters that were pending or under investigation while the judge was employed in a prosecutor's office before becoming a judge can lead to disqualification issues. See In re Bulger, 710 F.3d 42, 45-47 (1st Cir. 2013), addressed in the Advisory Notes to Rule 2.2. Compare Matson v. Board of Education of City School Dist. of N.Y., 631 F.3d 57, 63 n. 5 (2d Cir. 2011) (rejecting plaintiff's claim that judge should recuse because judge's niece was then employed by defendant Board of Education and judge had previously served as Corporation Counsel for the City).
The Obligation Not to Recuse Except When Necessary
Although the granting or denying of a motion to recuse is within the discretion of the court, the Law Court has noted that a judge who disqualifies himself or herself "'for no reason other than an unfounded and meritless claim of partiality, has abused the judge's discretion.'" Charette, 2013 ME 4, ¶ 23, 60 A.3d 1264 (quoting In re Michael M., 2000 ME 204, ¶ 15, 761 A.2d 865); State v. Murphy, 2010 ME 140, ¶ 18, 10 A.3d 697; Atwood, 2010 ME 12, ¶ 22, 988 A.2d 981; see also Rule 2.7. Thus, if there is no reasonable basis for recusal, a judge is obliged not to recuse to assure that the proceeding may have a timely conclusion for all parties. See In re Michael M., 2000 ME 204, ¶¶ 14-15, 761 A.2d 865; Rule 2.7. "[J]udges must not allow litigants to utilize the process of a recusal motion to delay or thwart the judicial proceedings where there is no reasonable basis for the motion and it is obvious on its face that it was intended to halt or delay the litigation." In re Michael M., 2000 ME 204, ¶ 14, 761 A.2d 865 (citing In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1312 (2d Cir. 1988)); see also In re United States of America, 441 F.3d 44, 67 (1st Cir. 2006) ("The trial judge has a duty not to recuse himself or herself if there is no objective basis for recusal."); Sensley v. Albritton, 385 F.3d 591, 598 (5th Cir. 2004) (noting that "a federal judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified," in rejecting a litigant's claim that a judge should not sit when the judge's immediate family member was an at-will employee in the office representing a party in litigation before the court); Nickerson-Malpher v. Worley, 560 F. Supp. 2d 75, 76-77 (D. Me. 2008) (dismissing recusal demand as frivolous).
Attempts to Provoke Recusal
Attempts by a party to secure the recusal of a judge through the use of intentional disrespect or the strategic filing of a complaint with the Committee or a civil action against the judge are inappropriate and ordinarily should be rejected by the judge. The Law Court addressed such an attempt to secure a recusal that included criticism of the judge in court and filing suits against the judge in State v. Murphy, 2010 ME 140, ¶ 18, 10 A.3d 697, stating:
| Despite Murphy's provocations and claims that the judge should have recused because of Murphy's filing actions against the judge and criticism of the judge, the court appropriately maintained the proceedings to their completion. Recusal is discretionary and, as we have observed, judges should avoid recusal in situations when parties engage in actions seeking to cause recusal. |
In Advisory Opinion 91-1, the Advisory Committee on the Maine Code of Judicial Conduct concluded that a judge is not required to recuse from a case on the sole ground that a party to that action has filed a complaint against the judge with the Committee. See also Rodgers v. Knight, 781 F.3d 932, 943 (8th Cir. 2015) (that plaintiff's counsel had filed a judicial conduct complaint against judge in previous, unrelated litigation did not require recusal in pending litigation).
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The Advisory Notes to Rule 2.2 also discuss recusal-disqualification issues, particularly as they relate to the ethical obligation of impartiality, in some detail. The Advisory Notes to Rule 3.11 also discuss recusal-disqualification issues, particularly as they relate to financial interest and family relationship issues, in some detail.
The 1993 Advisory Committee's Note addressing 1993 Canon 3(E) noted some differences between 1993 Canon 3(E) and the 1990 ABA Model Code:
| Canon 3E establishes specific standards and procedures for disqualification in situations where a judge's impartiality is or may be in question. The Canon is meant to apply at any time during a proceeding when potential grounds for disqualification become apparent to the judge or to the parties or their lawyers. In the context of this Canon, "proceeding" means an adjudicative proceeding. Under Canon 3C, a judge is bound to carry out administrative duties without bias or prejudice, but no formal procedure for disqualification in administrative matters is required because those duties are ordinarily carried out in an informal and nonadversarial setting. |
Canon 3E(1) provides for self-disqualification on the judge's own motion whenever a judge believes that he or she cannot act impartially. This is a purely subjective test which the judge should apply based on his or her own understanding of personal feelings or attitudes or factual matters involved in the proceeding. The Court found a violation of the predecessor of this section, former Canon 3C(1), when a judge, far from disqualifying himself, caused speeding complaints to be filed in cases involving personal acquaintances. Matter of Ross, supra, at 864-65. Under Canon 3E(1), the judge is not required to state on the record the reasons for self-disqualification. As noted above in discussion of Canon 3B(1), however, a judge who self-disqualifies might have to state the grounds in response to a judicial conduct complaint under that subsection.
Canon 3E(2) embodies an objective test. Regardless of the judge's own belief about his or her ability to act impartially, if the judge's impartiality might reasonably be questioned by others, the judge may self-disqualify on her or his own motion and must disqualify himself or herself on a motion to recuse brought by one of the parties. When the judge self-disqualifies on the judge's own motion, the grounds need not be stated, except as noted above with regard to Canon 3B(1). The same standard applies to self-disqualification and to a motion to recuse, because the judge may take a different view of the appearance of partiality when it has been presented on motion and argued by counsel. The judge, of course, remains free to deny the motion if the moving party fails to establish a reasonable basis for questioning impartiality. See Estate of Tingley, 610 A.2d 266 (Me. 1992) (probate judge had broad discretion to refuse to disqualify himself where nephew was board member of creditor with claim against estate).
Canon 3E(2) sets forth specific instances where impartiality might be questioned. The list is not intended to be exclusive. As stated in the Commentary to the comparable provision of the ABA Model Code (1990), Section 3E(1), "Under this rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless whether any of the specific rules in Section 3E(1) apply. For example, if a judge were in the process of negotiating for employment with a law firm, the judge would be disqualified from any matters in which that law firm appeared."
Canon 3E(2)(a) requires disqualification on the basis of bias, prejudice, or personal knowledge of disputed facts. Although the text only specifies bias or prejudice against a party or lawyer, other situations, such as a judge's prejudice against a witness in a non-jury trial or extreme prejudice on the issues, could require disqualification under the non-exclusive terms of Canon 3E(2). When a party to a pending proceeding sues or files a disciplinary complaint against the judge, paragraph (a) does not require disqualification if the circumstances indicate that the suit or complaint has been brought solely as a tactic to obtain the judge's disqualification. Note that "personal knowledge" as used in paragraph (a) is not intended to include the kind of generalized knowledge that is the basis of judicial notice.
Canon 3E(2)(b) requires disqualification when the judge or a previous associate has been involved as a lawyer, or the judge is a material witness. Canon 3E(2)(c) requires disqualification when the judge or a family member has "an economic interest" in the controversy, or in a party, or has "any other more than de minimis interest" that could be substantially affected. The phrase "de minimis" is the key to this standard, because "economic interest" is defined in Part II, section 3E, as "ownership of a more than de minimis legal or equitable interest," or an active role in the affairs of a party. "De minimis" is defined in Part II, section 3D, as "an interest too trivial to raise reasonable question as to a judge's impartiality." The standard is consistent with prior Maine case law holding that a pecuniary interest must be "direct, definite and capable of demonstration; not remote, uncertain, unsubstantial, speculative, or theoretic." Hughes v. Black, 156 Me. 69, 75 [(1960)].
Canon 3E(2)(d) requires disqualification when the judge, a spouse, "a person within the third degree of relationship to either of them," or such a relation's spouse is a party, officer, or lawyer of a party, or, to the judge's knowledge, has "a more than de minimis interest that could be substantially affected by the proceeding, or is likely to be a material witness." The definition of "third degree of relationship" incorporates the civil law system and includes great-grandparents, great-grandchildren, nephews and nieces, but not first cousins. See Part n, Section 3P, and Advisory Committee's Note. By statute a relationship in the sixth degree according to the civil law, which includes second cousins, is a ground for disqualification for interest. 1 M.R.S.A. §71(6). The third degree is retained in the Code, however, despite a dictum in Hughes v. Black, supra, 156 Me. at 77, finding the statute applicable. The purpose of the Code is to limit the number of unnecessary mandatory disqualifications. The Code like the statute does incorporate the concept of affinity as well as kinship. Of course, a judge having any kind of significant personal or economic connection with a relative beyond the third degree should self-disqualify under Canon 3E(1) or (2).
Under Canon 3E(3), a judge who does not self-disqualify under Canon 3E(1) or (2) is required to disclose to the parties any factual connection to the proceeding that is relevant to a determination of impartiality. The purpose of the provision is to assure that parties trying to determine whether to seek recusal are aware of relevant information in more specific detail than is provided in the general judicial financial disclosures required under Canon 6. The relevance standard for disclosure is lower than that for disqualification or recusal. The test of relevance is that of M.R. Evid. 401: A fact that must be disclosed is one "having any tendency" to make the fact of impartiality "more probable or less probable than it would be without the" fact.
Canon 3E(4) sets forth a "rule of necessity" that may be a basis for a judge's refusal to disqualify himself or herself even in the specific circumstances set forth in Canon 3E(2). Examples include situations in which, "a judge might be required to participate in judicial review of a judicial salary statute, or might be the only judge available in a matter requiring immediate judicial action, such as a hearing on probable cause or a temporary restraining order." ABA Model Code (1990), Commentary to Section 3E(1). The rule adds the further requirement that disqualification would result in a failure of justice-that is, an inability of the parties to obtain any judicial determination of the issues which they have raised. If the rule of necessity is relied upon, the judge must disclose the grounds upon which disqualification might otherwise be appropriate and must step down at the earliest opportunity. The possibility of a rule of necessity has been recognized by the Law Court. See Cunningham v. Long, 125 Me. 494, 497, 135 A. 198 (1926).
The 1993 Textual Note to Canon 3, as it addresses Canon 3(E) further notes:
Proposed Canon 3E combines provisions of ABA Model Code (1990), Section 3E, with provisions intended to clarify and develop the original intent of Maine Code (1974), Canon 3C.
Canon 3C of the 1974 Maine Code did not incorporate the detailed provisions of ABA Code (1972), Canon 3C, defining specific instances in which a judge should disqualify himself or herself because the judge's "impartiality might reasonably be questioned." The 1974 Maine Code incorporated the ABA standard without the specific instances and added a provision for self-disqualification when the judge "has reason to believe that" the judge "could not act with complete impartiality." Additionally, under Maine Code (1974), Canon 3C(2), the judge must "promptly inform the parties . . . concerning any matter which might reasonably cause" the judge's "impartiality to be questioned." The provisions of ABA Code (1972), Canon 3D, for disclosure followed by remittal of disqualification on agreement of the parties were not adopted. The Maine provisions were intended to limit disqualification because substitute judges were deemed rarely readily available. Further proceedings upon disclosure or disqualification were the responsibility of counsel. See Maine Code (1974), Committee Note to Canon 3C, 8 Me.Bar Bull, No. 3, at 31.
Canon 3E(1) retains the test of Maine Code (1974), Canon 3C(1) for self-disqualification, with the addition of the final sentence. Canon 3E(2) carries forward the objective test of Maine Code (1974), Canon 3C(1), for either self-disqualification or disqualification on motion to recuse. The framework of self-disqualification and recusal is unique to Maine but paragraphs (a)-(e), new to Maine, are taken without change from ABA Model Code (1990), Section 3E(1), which was derived from ABA Code (1972), Canon 3C(1). The "de minimis" standard of paragraph (c) is substituted for the requirement of ABA Code (1972), Canons 3C(l)(c), (3)(c), that disqualification result from "ownership of a legal or equitable interest, however small."
Canon 3E(3) is unique to the Maine Code. It substitutes a requirement of disclosure of relevant information for the duty to inform the parties of a potentially disqualifying matter in Maine Code (1974), Canon 3C(2). Canon 3E(4), also unique to Maine, is adopted from ABA Model Code (1990), Commentary to Section 3E(1).
ABA Model Code (1990), Section 3E(2), requiring a judge to keep informed about the judge's own interests and to make a reasonable effort to keep informed about the interests of the judge's spouse and minor children has not been adopted. The subsection is superfluous in light of the extensive disclosure requirements of proposed Canon 6.