Should A Judge Recuse If S/He Was Sued Earlier By The Litigant?

Of course... but that's not what the U.S. Court of Appeals for the Ninth Circuit decided, raising questions about the ability of federal judges to police themselves.

If a federal judge engages in misconduct or demonstrates a mental disability in the course of presiding over a lawsuit, the only remedy is to file a complaint under the Judicial Conduct and Disability Act.

How good is that remedy?

You be the judge.

In a recent case, Chief Judge Mary H. Murguia of the Ninth Circuit Court of Appeals based in San Francisco, CA, dismissed a judicial misconduct complaint that was filed against a judge who failed to recuse in a case where the plaintiff had previously sued him and filed a complaint of judicial misconduct against him.

Neither the judge nor the complainant were identified. The term “he” is used for convenience.

Judicial misconduct complaints are sent to the chief judge of the circuit where the alleged behavior occurred. The chief judge can dismiss the complaint if it is “related to the merits of a decision or procedural ruling,” or “is frivolous or lacks sufficient evidence to raise an inference of misconduct.”

Unsurprisingly, virtually every judicial misconduct / disability complaint relates to the merits of a decisions or a procedural ruling. What else would it relate to? The courtroom thermostat? So virtually every judicial misconduct complaint is routinely dismissed by the chief judge.

Issue: Recusal

But the case in question here involved whether the district court judge should have presided over the lawsuit in the first place.

The complainant said the judge should have recused because the complainant:

• Filed a civil lawsuit against the judge that was dismissed (on purely technical grounds) in 2019.

• Filed a judicial misconduct complaint against the judge that was dismissed in 2020 (for reasons not divulged).

The complainant also alleged the judge is “unfit for the bench” because he “can’t comprehend” the substance of the complainant’s filing.

Disassociation

Federal law (28 U.S.C. § 455(b)) instructs a federal judge to recuse “in any proceeding in which his impartiality might reasonably be questioned.” A judge also should recuse “where he has a personal bias or prejudice concerning a party.”

Unless a judge is the modern day equivalent of King Solomon, it seems obvious that he would find it difficult to be fair and impartial to a plaintiff who had filed both a lawsuit and a judicial complaint against the judge. (And possibly questioned the judge’s mental competence.)

In these circumstances, any complainant would feel the deck was stacked.

Would you expect to get a raise or be promoted if you complain to a superior about your boss? Federal judges hear cases every day where workers were retaliated against by a supervisor because of some perceived slight.

Here is Judge Murguia’s reasoning: