Unrecused: Is That a Thing?

I recently ran across an analysis from 2014 that was interesting. Reuters noted that U.S. Supreme Court's Alito ends recusal in Aereo TV case. That might not be a headline that draws many outside the legal profession, or outside the specialized and dedicated groups that carefully follow the U.S. Supreme Court (Or Supreme Court of the United States, often abbreviated "SCOTUS"). But that headline grabbed my attention. It's statement is antithetical to me as a trial judge, and caused me to do some reading. As is my habit, that reading led to writing. 

I have written before about the manner in which judges remove themselves from a particular case in Lessons in Recusal and Disqualification. That post explains in some detail that a judge may not re-acquire jurisdiction over a case following either disqualification or recusal, see Miller v. Bell South Phone Co., 860 So.2d 523 (Fla. 1st DCA 2003). Thus, the idea of a recusal ending  or undoing was intriguing. Noting thatMiller is a workers' compensation case, and suspecting its' prohibition might perhaps be somehow distinct to executive branch judges, it is worthwhile to explore this topic again in broader terms. 

The focus of the Reuters article is on Supreme Court Justice Samuel Alito, who was appointed to the Court in 2006 by President George W. Bush. The news broke because "online docket entries" maintained by Court then reflected that "Alito would allow himself to participate in the Aereo case and "in a dispute between beverage companies Coca-Cola Co. and POM Wonderful LLC." In an appellate setting, the involvement of all of a court's judges may be important because their efforts are collective in nature, one judge is one vote, and a majority of the court rules. Following the death of Antonin Scalia, the effects of an even number of justices was demonstrated recently, according to the New York Times. 

The Reuters story notes that there is no edification offered, that "the court does not comment on why justices disqualify themselves." Seemingly, the court also does not comment as to why justices "un-recuse" themselves "from certain cases." Reuters conjectures that the removals might perhaps result "because they own stock in one or more parties." Thus, conceivably, when the justice no longer owns the stock perhaps it is permissible to "un-recuse?"

A brief spate of research revealed that there is not a great deal of edification available for the idea of "un-recusing." The term is mentioned in multiple articles regarding the decision of Attorney General Jeff Sessions in various special counsel investigations of the executive branch. But the term is somewhat rare in legal decisions. It is explained in one Alabama Supreme Court decision, Ex parte State ex rel. Alabama Policy Institute, 200 So.3d 495, 564 (AL 2015). There, following the explanation of the Court's decision in the case, there is a separate section labelled "MOORE, Chief Justice (statement of nonrecusal)." 

The Chief Justice of the Alabama Court explains that he had initially recused himself from considering the case because he had issued an "administrative order" therein. He explained that this recusal decision allowed him to "avoid sitting in review of my own administrative order." But, he later elected to "sit on the case to review a different issue," as the administrative order later became "no longer at issue in this case." In support of his decision, Justice Moore cited Justice Alito's decision noted above, American Broadcasting Cos. v. Aereo, Inc., 134 S.Ct. 2498 (2014), and a similar un-recusal of SCOTUS Chief Justice Roberts in Stoneridge Investment Partners, LLC v. Scientific–Atlanta, Inc., 552 U.S. 148 (2008).

Thus, the Alabama Chief Justice relied upon the decisions of two Supreme Court Justices. Despite that recitation of authority, however, Justice Moore also elected to support his un-recusal with reference to a 1956 federal decision rendered in an Alaska case, Stringer v. United States, 233 F.2d 947, 948 n. 2 (9th Cir.1956). Some may question whether that 1956 citation strengthens the Justice's explanation of his unrecusal or not. Justice Moore also noted that "it is a judge's duty to decide cases," and that overriding premise leads to support that "a judge may participate in a case after initially not sitting if the issues that prompted that abstention have changed." 

There are a few other examples of un-recusing. In a Louisiana judicial discipline case, an investigatory commission concluded that a trial judge erred by "unrecusing himself after disqualifying himself in the first place. In re Judge Joel G. Davis, 865 So.2d 693 (LA 2004). In that instance, the accused judge 

"testified that he recalled his recusal because an ad hoc judge had not been appointed in the case." Fearing that his recusal was therefore prejudicing a criminal defendant, the judge unrecused himself and "just accepted the plea."

This Louisiana decision seems more in line with the Florida decision in Miller v. Bell South Phone Co., 860 So.2d 523 (Fla. 1st DCA 2003), discussed above and in the prior post. But, the unrecusal issue explained by a state court chief justice, citing the unexplained and somewhat cryptic unrecusal of two SCOTUS justices certainly does warrant consideration. 

In 2005, the Florida Fourth District considered Cusimano v. Fred Florio & Kinemed, Inc., 900 So.2d 627 (Fla. 4th DCA 2005). There, a trial judge, Judge Fleet, recused himself because one of the law firms involved in the case was also representing the judge in an unrelated matter. The case was then reassigned to Judge Green, but for some unexplained reason, Judge Green and the court clerk somehow reassigned the case back to Judge Fleet. No party objected to that, and Judge Fleet even commented on the record about his prior recusal. Following entry of a judgement, a party appealed and the District Court agreed that all actions by Judge Fleet were "void." Thus, a similar result in constitutional court to the decision regarding a workers' compensation judge in Miller.

The Cusimano decision cites Kells v. Davidson, 102 Fla. 684, 136 So. 450 (Fla. 1931). There, a Circuit judge recused himself from a case in which his brother was a defendant. The judge's brother later ceased to be a party to the case, and the matter was transferred back to that original judge. The Florida Supreme Court held "this court is committed to the doctrine that, when a judge is once disqualified to officiate in a cause pending, the disqualification continues throughout proceedings in the cause" (citation omitted). The Court explained

"It would be an unwise provision of law which would contemplate that, when a judge is once disqualified in a cause, the reason for his disqualification could be removed from the record, and thereupon such judge would become qualified to proceed with the disposition of the cause and act as though he had never been disqualified."

Instead, the Court concluded

"The safe and sound rule is that, when the record once shows that a judge is disqualified in a cause, it becomes his duty to certify such disqualification, transfer the cause to some other qualified judge, and thereafter take no part in the disposition of the cause."

Thus, perhaps there is a distinction for the recusal of Supreme Court justices or appellate judges. Or perhaps the law is different in Alabama or the federal system than it is in Florida. But, it appears clear in Florida that the disqualification or recusal of a trial judge, administrative or constitutional, is a disqualification or recusal for the duration of that case. Though circumstances may change and time will inexorably pass, the judge once removed is not to return. While such a rule might work hardship, result in delay or even expense, result in tie votes as noted by the New York Times, it is perhaps a "safe and sound rule" for any judge. 

ABOUT THE AUTHOR

David Langham is the Florida Deputy Chief Judge of Compensation Claims. He blogs weekly regarding system issues, regulations and decisions. He has published many articles and delivered more than 1,000 professional speeches.

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