Vt. Admin. Ord. Of. Sup. Ct. 2.11

As amended through November 4, 2024

Rule 2.11 - Disqualification

(A) 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:

(1) The judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of facts that are in dispute in the proceeding.

(2) The judge knows that the judge, the judge's spouse or domestic partner, or a person within the fourth degree of relationship to either of them, or the spouse or domestic partner of such a person is:

(a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party;

(b) acting as a lawyer in the proceeding;

(c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or

(d) likely to be a material witness in the proceeding.

(3) The judge knows that he or she, individually or as a fiduciary, or the judge's spouse, domestic partner, parent, or child, or any other member of the judge's family residing in the judge's household, has an economic interest in the subject matter in controversy or in a party to the proceeding.

(4) A continuing part-time judge subject to election knows or learns by means of a timely motion that a party, a party's lawyer, or the law firm of a party's lawyer has within the previous five years made a contribution to the judge's campaign in any amount.

(5) The judge, while a judge or a judicial candidate, has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.

(6) The judge:

(a) served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter during such association;

(b) served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding, or has publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy;

(c) was a material witness concerning the matter; or

(d) previously presided as a judge over the matter in another court.

(B) A judge shall keep informed about the judge's personal and fiduciary economic interests and make a reasonable effort to keep informed about the personal economic interests of the judge's spouse or domestic partner and minor children residing in the judge's household.

(C) A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(1), may disclose on the record the basis of the judge's disqualification and may advise the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification. If, following the disclosure, the parties and lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding.

(D) A judge shall disclose to the parties on an ongoing basis

(1) the existence of any investment valued over $5,000 in an entity that is a party, but a judge is not required to disclose the actual value of the investment;

(2) any gift made to the judge in the last five years by a party, a party's lawyer, or the law firm of a party's lawyer in a case pending before the judge;

(3) any other fact or matter relevant to the question of impartiality that, in the judge's view, may require disqualification under Rule 2.11(A). Unless a party promptly moves to disqualify on the basis of a disclosure under (1) or (2), the judge may continue to participate in the proceeding.

Vt. Admin. Ord. Of. Sup. Ct. 2.11

Amended August 6, 2019, eff. 10/7/2019.

Comment

[1] Under this Rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific provisions of paragraphs (A)(1) through (6) apply. In many jurisdictions, the term "recusal" is used interchangeably with the term "disqualification."

[2] A judge's obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed.

[3] The rule of necessity may override the rule of disqualification. For example, 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. In matters that require immediate action, the judge must disclose on the record the basis for possible disqualification and make reasonable efforts to transfer the matter to another judge as soon as practicable.

[4] The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not itself disqualify the judge. If, however, the judge's impartiality might reasonably be questioned under paragraph (A), or the relative is known by the judge to have an interest in the law firm that could be substantially affected by the proceeding under paragraph (A)(2)(c), the judge's disqualification is required.

[5] 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, even if the judge believes there is no basis for disqualification.

[6] "Economic interest," as set forth in the Terminology section, means ownership of more than a de minimis legal or equitable interest. Except for situations in which a judge participates in the management of such a legal or equitable interest, or the interest could be substantially affected by the outcome of a proceeding before a judge, it does not include:

(1) an interest in the individual holdings within a mutual or common investment fund;

(2) an interest in securities held by an educational, religious, charitable, fraternal, or civic organization in which the judge or the judge's spouse, domestic partner, parent, or child serves as a director, officer, advisor, or other participant;

(3) a deposit in a financial institution or deposits or proprietary interests the judge may maintain as a member of a mutual savings association or credit union, or similar proprietary interests; or

(4) an interest in the issuer of government securities held by the judge.

Reporter's Notes

Rule 2.11 carries forward the provisions of Vermont Code 1994, Canon 3E and 3F in clarified and reorganized form, with the following principal differences:

In Rule 2.11(A)(1), the specific ground in Vermont Code 1994, Canon 3E(1)(a), for disqualification of a judge who has engaged in ex parte communication in an unsuccessful effort to mediate or settle the case is omitted. Case-by-case application of the existing disqualification for "personal knowledge of facts that are in dispute" sufficient for "the judge's impartiality [to] reasonably be questioned" will allow more flexibility for beneficial settlement efforts.

In Rule 2.11(A)(2), as in Vermont Code 1994, Canon 3E(1)(d), the disqualification extends to activity of a person within the fourth, rather than the third, degree of relationship as provided in 12 V.S.A. § 61. See Terminology section. Also, "domestic partner" has been added to the list of affected relationships in this paragraph as well as in paragraphs (A)(3) and (B), and "general partner or managing member" has been added to the list of disqualifying activities in subparagraph (A)(2)(a).

In Rule 2.11(A)(3), "wherever residing," found in Vermont Code 1994, Canon 3E(1)(c), has been eliminated as a modifier of "spouse, domestic partner, parent or child" to disqualify judges for their economic interest, leaving "member of the judge's family residing in the judge's household" as the modifier for all disqualifying relationships listed in paragraph (A)(3). See Terminology section.

Rule 2.11(A)(4) had no equivalent in Vermont Code 1994, Canon 3E. Canon 5C(3) imposed a $150 limit on campaign contributions for elected probate and assistant judges, with the implicit requirement of disqualification for knowledge of such a contribution. See also ABA Code 2007, Rule 2.11(A)(4). The present Vermont rule imposes a stricter limit in the interests of avoiding any inference of impropriety.

Rule 2.11(A)(5) had no equivalent in Vermont Code 1994, Canon 3E. However, Canon 5A(2), 5B(4)(a) and (b), (C)(1), and Rule 4.1(A)(12), (13), imposed similar obligations on judges who are candidates for appointment, election, or confirmation in judicial office.

Rule 2.11(A)(6)(a) and (c) carry forward Vermont Code 1994, Canon 3E(1)(b). Rule 2.11(A)(6)(b) is taken from the Commentary to ABA Code 1990, Canon 3E(1)(b). Rule 2.11(A)(6)(d) is a new provision designed to make clear that judges who sit by designation on a court at a different level should not hear cases over which they had previously presided. It is not intended to prevent a judge who heard a case on an appellate court panel from sitting on a rehearing en banc in the same court. ABA Reporter's Explanation 105. It is also not intended to bar a judge from sitting in closely related cases in different divisions of the Superior Court.

Rule 2.11(B) carries forward Vermont Code 1994, Canon 3E(2).

Rule 2.11(C) carries forward Vermont Code 1994, Canon 3F, retaining two departures from ABA Code 1990, Canon 3(F) and ABA Code 2007, Rule 2.11(C): the judge may "advise," rather than "ask," the parties to consider remittal in order to avoid any appearance of pressure from the judge; and the final sentence, requiring the agreement to be incorporated in the record, is omitted to avoid difficulties in obtaining a writing that might prevent a clearly agreed-upon remittal. Incorporation of a written agreement in the record is the better course, but in any event, the agreement should be stated on the record in open court. See Reporter's Notes to Vermont Code 1994, Canon 3F. Rule 2.11(C) also omits as implicit the sentence in Vermont Code 1994, Canon 3F, and ABA Code 1990, Canon 3(F) expressly requiring that if the parties agree on remittal, the judge must be willing to participate.

Rule 2.11(D) carries forward Vermont Code 1994, Canon 3G and, in edited form, Canon 4I(1), added to Vermont Code 1994 by amendment effective December 18, 2017. The Rule has no counterpart in ABA Code 1990 and ABA Code 2007. It is intended to provide threshold bases for motions to disqualify under V.R.C.P. 40(e), V.R.Cr.P. 50(d), or V.R.A.P. 27.1. Such a motion should be filed within the time provided in those rules. The standard of relevance as defined in V.R.E. 401 is less than the standard of proof for disqualification, so a motion to disqualify will not necessarily lead to disqualification. Of course, a judge may self-disqualify and may disclose indisputably disqualifying information for consideration by parties and counsel under Rule 2.11(C). See Comment [2]. See also Reporter ' s Notes to Vermont Code 1994, Canon 3G.

Comments [1], [3]-[5] are derived from the Commentary to ABA Code 1990, Canon 3E(1). New Comment [2] is intended to clarify that the obligation to self-disqualify exists whether or not a motion to disqualify is made under Rule 2.11(D). New Comment [6] is intended to restate the definition of "economic interest" set forth in the Terminology section in view of the importance of the term in the disqualification context. See ABA Reporter's Explanation 105-06.