Monday, April 4, 2011

Reversal by Recusal?

Comer v. Murphy Oil USA, Inc. and Mandatory Judicial Recusal Statements
by Patrick Woods

Patrick Woods, a second-year student at Albany Law School and Associate Editor of the Albany Law Review, explores the ramifications of judicial recusals without any explanation. He proposes statutory requirements that judges issue public statements explaining their recusals.

In many cases, if not most, voluntary judicial recusal is both an efficient use of judicial resources and an exceptional safeguard to the legitimacy of the judiciary.[1]  However, voluntary judicial recusal poses its own unique problems when the withdrawing judge declines to issue a statement explaining the statutory grounds for his or her recusal.  Unlike when a party seeks to disqualify a judge by motion--where the reasons for recusal will, at a minimum, be set out in the motion papers--when a judge voluntarily recuses, there is not necessarily any record created as to the reasons for the recusal.[2]  Such recusals leave litigants in the dark, creating numerous practical problems.  These problems are compounded when, prior to recusal, the judge has already taken meaningful action in the case.

This article will analyze the recent case of Comer v. Murphy Oil USA Inc. in an effort to illustrate several of the many reasons why federal judges, upon voluntary recusal, should be required to issue a statement identifying the statutory provision requiring their disqualification.  The article will also argue that where a judge is recusing him or herself from a case in which he or she has already substantially participated, litigants should be permitted to demand, and receive, a more detailed statement as to the reasons for recusal.

First, to put the arguments in context, this article will lay out the highly unusual procedural history of Comer. Next, the article will use the facts of Comer to illustrate several problems created, exacerbated, or made insoluble by voluntary recusal without the issuance of a recusal statement.  Finally, the article will propose two statutory provisions for suggested inclusion in federal judicial recusal statutes. Those provisions would require judges to issue basic recusal statements whenever they become disqualified and more detailed statements in appropriate circumstances without overburdening the judiciary.

[1] Bruce A. Green, Fear of the Unknown: Judicial Ethics After Caperton, 60 Syracuse L. Rev. 229, 234 (2010) (voluntary recusal "promote[s] judicial economy [and] minimize[s] public scrutiny and criticism" of courts.)  This article is limited to recusal issues involving the federal judiciary because the federal system has one unified standard; the federal statute or language similar to that found in those statutes have been adopted by several states; and the illustrating case, Comer v. Murphy Oil USA Inc., is a federal case.  That said, many of the arguments for mandatory recusal statements would apply with equal force in the context of state courts.
[2] In addition to the reasons for recusal being set out in motion papers, judges are also strongly encouraged to issue statements when they deny disqualification motions.  See Richard E. Flamm, Judicial Disqualification: Recusal and Disqualification of Judges § 22.1 (2007).  Some jurisdictions even make the issuance of the such statements mandatory.  See id.

Read the entire paper here.