CITES BY TOPIC:  impartiality

PDF Recusal:  Analysis of Caselaw Under 28 U.S.C.  455 and 144: Federal Judicial Center


Summerlin v. Stewart, 267 F.3d 926 (9th Cir. 10/12/2001)

It is difficult to gainsay the importance of enforcing with efficient and sensible sanctions the core due process guarantees in our Constitution. To look the other way in the face of certain serious constitutional deficiencies is to render those guarantees " `a form of words,' valueless and undeserving of mention in a perpetual charter of inestimable human liberties." Mapp v. Ohio, 367 U.S. 643 (1961). Frequently, we do use the doctrine of harmless error with respect to a wide spectrum of constitutional failures, but not such a fault involving the performance of a judge who was demonstrably not impartial. See Arizona v. Fulminante, 499 U.S. 279, 306-311 (1991). The Supreme Court has labeled this kind of systemic defect "structural error" and rendered it categorically immune from harmless error analysis. Id. at 309-10; Tumey v. Ohio, 273 U.S. 510 (1927). The reason for regarding this level of constitutional failure as "structural" is obvious: impartiality is the sine qua non of judging. Bias or favoritism is utterly irreconcilable with and necessarily perverts the judicial function. The rule of law which provides the framework for our system of justice is thwarted by a judge marching to an unauthorized drummer.

[Summerlin v. Stewart, 267 F.3d 926 (9th Cir. 10/12/2001)]


Model Code of Judicial Conduct for State Administrative Law Judges, Canon 3: A State Administrative Law Judge Shall Perform the Duties of the Office Impartially and Diligently


Code of Conduct for U.S. Judges, Canon 3: A Judge Should Perform the Duties of Office Impartially and Dilligently

Code of Conduct for U.S. Judges

Canon 3: A Judge Should Perform the Duties of the Office Impartially and Diligently

C. Disqualification.

(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances in which:

(a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) the judge served as lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness;

(c) the judge knows that the judge, individually or as a fiduciary, or the judge's spouse or minor child residing in the judge's household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be affected substantially by the outcome of the proceeding;

(d) the judge or the judge's spouse, or a person related to either within the third degree of relationship, or the spouse of such a person:

(i) is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) is acting as a lawyer in the proceeding;

(iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; or

(iv) is to the judge's knowledge likely to be a material witness in the proceeding.

(e) the judge has served in governmental employment and in such capacity participated as counsel, advisor, or material witness concerning the proceeding or has expressed an opinion concerning the merits of the particular case in controversy.

(2) A judge should keep informed about the judge's personal and fiduciary financial interests, and make a reasonable effort to keep informed about the personal financial interests of the judge's spouse and minor children residing in the judge's household.


Summerlin v. Stewart, 267 F.3d 926 (9th Cir. 10/12/2001)

“Bias or favoritism is utterly irreconcilable with and necessarily perverts the judicial function. The rule of law which provides the framework for our system of justice is thwarted by a judge marching to an unauthorized drummer [the IRS in this case, if he is a "taxpayer"].”

[Summerlin v. Stewart, 267 F.3d 926 (9th Cir. 10/12/2001)]


ABA Code of Judicial Conduct, Canon 3C(1)(a) (1980)

"A judge should disqualify himself . . . where he has a personal bias or prejudice concerning a party"

[ABA Code of Judicial Conduct, Canon 3C(1)(a) (1980)]


Tumey v. Ohio, 273 U.S. 510 (1927)

“. . .it certainly violates the Fourteenth Amendment  . . . to subject [a person's] liberty or [475 U.S. 822] property to the judgment of a court the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case.”

[Tumey v. Ohio, 273 U.S. 510 (1927)]


Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986)

More than 30 years ago Justice Black, speaking for the Court, reached a similar conclusion and recognized that, under the Due Process Clause, no judge "can be a judge in his own case [or be] permitted to try cases where he has an interest in the outcome." In re Murchison, 349 U.S. 133, 136 (1955). He went on to acknowledge that what degree or kind of interest is sufficient to disqualify a judge from sitting "cannot be defined with precision." Ibid. Nonetheless, a reasonable formulation of the issue is whether the situation is one

"which would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true."

Ward v. Village of Monroeville, supra, at 60.

[Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986)]