8/8/2019 Amc; Case Law; Judge Disqualify; 4-27-07

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The test for determining whether a judge's impartiality might reasonably be questioned isan objective one, and requires asking whether a disinterested observer fully informed of the facts would entertain a significant doubt as to the judge's impartiality.

Bivens Gardens Office v. Barnett Banks of Florida, 140 F.3d 898, 912 (11th Cir.1998)  ( citing Diversified Numismatics, Inc. v. City Of Orlando, 949 F.2d 382, 385 (11th 

Cir.1991) and Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir.1988) ); seealso Christo v. Padgett, 223 F.3d 1324, 1333 (11th Cir.2000)  ( citing United States v.Kelly,  888 F.2d 732, 744-45 (11th Cir.1989) ). The intent underlying § 455(a) is “topromote public confidence in the integrity of the judicial process” and “to promoteconfidence in the judiciary by avoiding even the appearance of impropriety wheneverpossible.” Liljeberg v. Health Services Corp., 486 U.S. 847, 860, 865, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988); see also Parker, 855 F.2d at 1523  ( quoting Liljeberg, 486 U.S. at 860, 865, 108 S.Ct. 2194). Moreover, in light of the intent of the statute,disqualification should be granted where a  judge would harbor any doubt concerningwhether disqualification is appropriate. Parker, 855 F.2d at 1524  ( citing United States v.

 Alabama, 828 F.2d 1532, 1540 (11th Cir.1987) ). Thus, disqualification under § 455(a) is possible where no actual partiality, bias or prejudice for or against a party exists.

The Applicable Law

[1]  [2]  Title 28 U.S.C. Section 455(a) requires a federal judge to disqualifyhimself in any proceeding in which his impartiality might reasonably be questioned. Therelevant inquiry “is not the reality of bias or prejudice but its appearance.” Liteky v.United States, 510 U.S. 540, 548, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) . The standardis “whether an objective, fully informed lay observer would entertain significant doubtabout the judge's impartiality.” Thomas v. Tenneco Packaging Co., Inc., 293 F.3d 1306, 1329 (11th Cir.2002) (citing Christo v. Padgett, 223 F.3d 1324, 1333 (11th Cir.2000) ). Inother words, the relevant inquiry is “how things appear to the well-informed, thoughtfuland objective observer, rather than the hypersensitive, cynical, and suspicious person.” United States v. Jordan, 49 F.3d 152, 156 (5th Cir.1995) .

[3]  [4]  [5]  Under Section 455(a), actual partiality or knowledge of thedisqualifying circumstances on the part of the  judge is not required. United States v. Kelly,888 F.2d 732, 744 (11th Cir.1989). “The duty of recusal applies equally before, during,and after a judicial proceeding, whenever disqualifying circumstances become known tothe  judge.” Id. The general rule is that “a federal  judge should reach his owndetermination [on recusal], without calling upon counsel to express their views.” Kelly,888 F.2d at 745 (emphasis and citations omitted).

Disqualification based on the appearance of partiality is determined by application of anobjective test. Liteky, 510 U.S. at ----, 114 S.Ct. at 1153-1154;  Lunde v. Helms, 29 F.3d 367, 370 (8th Cir.1994), cert. denied, 513 U.S. 1155, 115 S.Ct. 1111, 130 L.Ed.2d 1076(1995). The statute not only requires that the judge be subjectively confident in hisability to be fair, but that there is no basis upon which an informed, rational and objectiveobserver could reasonably question a judge's impartiality. Bernard,  31 F.3d at 844; Yagman v. Republic Insurance, 987 F.2d 622, 626 (9th Cir.1993) . Accordingly, it iscrucial that the facts which might cause a reasonable observer to question impartialityare identified. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 865, 108 S.Ct. 2194, 2205, 100 L.Ed.2d 855 (1988).

8/8/2019 Amc; Case Law; Judge Disqualify; 4-27-07

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The purpose and suggested implementation of the above provisions have been summarized by several UnitedStates Courts of Appeals.  “Clearly, the goal of the judicial disqualification statute is to foster the appearance of 

impartiality .... Because 28 U.S.C. § 455(a) focuses on the appearance of impartiality, as opposed to the

existence in fact of any bias or prejudice, a  judge faced with a potential ground for disqualification ought toconsider how his participation in a given case looks to the average person on the street.” Potashnick v. Port City Construction Co.,  609 F.2d 1101, 1111 (5th Cir.1980)  (emphasisin original), cert. den. 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22. “Under section 455(a),

the  judge is under a continuing duty to ask himself what a reasonable person knowing allthe relevant facts would think about his impartiality. If there is a reasonable factual basisfor doubting the  judge's impartiality, ... [he] should disqualify himself....” United States v.Hines, 696 F.2d 722, 728 (10th Cir.1982) , (quotes and cite omitted). “The test fordisqualification under 455(a) is an objective one: whether a reasonable person withknowledge of all the facts would conclude that the  judge's impartiality might reasonablybe questioned.” United States v. Nelson, 718 F.2d 315, 321 (9th Cir.1983) ; United States v. Noble, 696 F.2d 231 (3d Cir.1982)  cert. den., 462 U.S. 1118, 103 S.Ct. 3086, 77L.Ed.2d 1348 (1983); see also, Zimmerman v. Rosenthal   (In Re Pasco Tobacco Co., Inc.), 34 B.R. 295 (Bankr.E.D.Pa.1983).