If you are a party to a trial in a court of law, you hope and expect that your case will be considered and judged impartially. And of course an impartial trial requires an impartial judge. However, it is not humanly possible for everyone to remain impartial in every circumstance, since all of us, judges included, have connections to some people and situations that we cannot disregard. To guarantee that trials and other proceedings remain impartial, judges sometimes must step aside, or "recuse" themselves, and let another judge take over.
Q: When should judges disqualify themselves?
A: According to Ohio's Code of Judicial Conduct (Canon 2), judges are required to perform judicial duties "impartially, competently and diligently" and should disqualify themselves when they cannot perform their duties in an impartial and diligent way.
Some circumstances are obvious. For example, a judge cannot hear a case if he or she has a personal bias or prejudice about a party or a party's lawyer, or an economic interest that might be affected by the outcome of the case. Therefore, a judge could not preside over a drunk driving case involving a family member, or a robbery trial in which the judge's spouse is a major witness, or a lawsuit that involves a company in which the judge owns a significant amount of stock.
Q: So does a judge just consult a list of such disqualifying circumstances?
A: Not quite. While Canon 2 does list some circumstances, it also contains a rule for circumstances that cannot be anticipated. That rule requires judges to disqualify themselves in a proceeding where a judge's impartiality might reasonably be questioned.
That is quite a strict rule. Rather than simply saying that a judge who cannot be impartial must be disqualified, the Canon also requires disqualification whenever a judge's impartiality can be reasonably questioned. Many judges whose impartiality could be reasonably questioned might actually be able to remain impartial. But the Canon requires disqualification in the face of a reasonable question alone. Also, the Canon says a judge must be disqualified if there might be a reasonable question about the judge's impartiality. Therefore, judges are asked not to wait and see if someone does raise such a question, but to actively consider how others view them, and ask whether there are reasons someone might question their impartiality.
Q: Why is the rule for disqualification so strict?
A: This strictness is necessary because of the important values at stake in the justice system and because of the unique role of judges. The stakes are certainly high for the parties to a case; they may involve large sums of money or even loss of freedom, and cases often involve deeply held convictions about who was wronged and who was responsible. The stakes are also high for our democratic system of government, because our democracy requires that courts be the arena where facts are established and laws are applied with the most conscientious impartiality, without bias, prejudice or sympathy for or against anyone involved in the case.
If the courts are to succeed in their role as neutral arbiters of the law, then judges must not only be impartial, but must be unquestionably impartial; there must be no room for reasonable doubt about their impartiality. This distinguishes judges from other government officials. Legislators, mayors, governors and other officials are at least in part advocates for the values and interests they proclaim as their own and on behalf of their voters, and we expect these officials to be partial to the programs, policies and agendas which led to their election. In contrast, judges are sworn to provide independent, objective and impartial judgments about what the law requires in individual situations.
Q: How is the disqualification rule applied?
A: To apply the rule, it is necessary to decide when a question about a judge's impartiality is "reasonable" and when it is not.
Sometimes the answer seems clear enough. If a party to a case asks the judge to step aside because the judge is an Ohio State fan and the party is from Michigan, the answer is almost certainly that there is not a reasonable basis for questioning the judge's ability to be impartial. If, however, a judge finds that one party's lawyer belongs to a law firm with which the judge is negotiating for a job after leaving the bench, then there is a reasonable question about the judge's impartiality.
Other cases will be more difficult. For example, what if a judge finds that the attorney for one of the parties is the person who was the judge's opponent in the previous election? Whether or not the judge ought to recuse himself or herself might depend on whether the campaign was hard fought, or how long ago it occurred, and other factors. Or what if the judge finds that one party is represented by an attorney who is a personal friend? Normally, since judges are lawyers and often have friends among attorneys who might appear before the court, this would likely not lead to a disqualification. But what if the judge, during the course of the proceedings, realizes that one possible outcome of the case would mean that the judge's friend could be sued for legal malpractice?
These and countless other possible complications show that there is simply no one way to assess which questions about a judge's impartiality are "reasonable" and which are not. Each question needs to be considered within its particular context.
Q: What if others involved in the case believe the judge cannot be impartial?
A: If a party in a case believes the judge should be disqualified, the party may then ask the judge to step down, giving reasons for the request. If the judge declines, then the parties may file an affidavit of disqualification with the chief justice of the Supreme Court of Ohio, or, in the case of a municipa or county district judge, with the presiding judge of the common pleas court of that county.
Q: This system seems pretty complicated. Is that necessary?
A: Like many aspects of our legal system, the impartiality of judges starts out as a basic idea that becomes complicated when we start applying it to real world situations. It is easy enough to see that a judge should not hear cases involving his or her family or financial interests, and it is easy to see that a judge's impartiality is important enough to merit strict standards for when a judge should be disqualified. Applying that standard, however, soon becomes difficult.
Perhaps the most we can ask for is what we have: a strict and general standard coupled with a way to allow all parties to have their say about how to apply it, and to have the application reviewed.
Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association. This article was originally prepared by Ulf Nilsson, communications coordinator for the Ohio Judicial Conference, with help from several members of the Conference's Public Confidence Committee. It was updated by Judge Mike Fain of the 2nd District Court of Appeals in Dayton.