Delaware Trial Handbook § 3:5. RECUSAL OF A JUDGE

A fundamental requirement of due process and the administration of justice is that litigants be entitled to trial by a disinterested judge.39 A judge should recuse himself or herself in circumstances where the judge’s impartiality might reasonably be questioned.40 Because of the importance of safeguarding the judiciary from attacks upon its integrity and the desire to prevent “judge shopping,” a judge has an equal obligation not to recuse himself or herself when there is no reason. As such, motions for disqualification should be scrutinized carefully.41

To avoid the appearance of strategic or tactical motivation, wasting judicial resources and prejudice to the non-movant, a motion to disqualify should be made as early as possible after learning of the grounds.  Failure to make a motion in a timely manner may be deemed waiver of the issue.  In determining whether any delay was reasonable, courts will consider whether (1) the moving party has participated substantially in a trial or pre-trial proceeding, (2) granting the motion would result in a waste of judicial resources, (3) the motion was made after entry of judgment, and (4) the moving party can demonstrate a good reason for the delay.41.1

Upon a motion for disqualification on the ground of bias, a judge should engage in a two-part analysis. The first step involves consideration of the judge’s subjective belief as to whether he or she can proceed to hear the matter free of bias or prejudice concerning the parties. If the answer to this is in the affirmative, the judge should consider whether, notwithstanding such actual impartiality, there is the appearance of bias sufficient to cast doubt upon the judge’s impartiality. If a judge’s demeanor or actions would lead an objective observer to conclude that a fair and impartial hearing is unlikely, the judge should recuse himself or herself.42

One circumstance requiring disqualification is where a judge has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding.43 A disqualifying bias relates to the mental attitude or disposition of a judge towards a party to the litigation, and not to any views the judge may entertain about the subject matter involved.44 Such bias must be a personal one, not a judicial one. In other words, the disqualifying bias must stem from an extrajudicial source and result in an opinion on the merits from some basis other than what the judge learned as a result of participating in the case.44.1 In other words, the disqualifying bias must stem from an extrajudicial source and result in an opinion on the merits from some basis other than what the judge learned as a result of participating in the case. Further, the bias must be of such a degree as to interfere with the assurance that the litigants be afforded a fair and impartial trial.45 The burden is on the proponent of an allegation of bias to demonstrate that the alleged bias originates from an extrajudicial source and resulted in an opinion on the merits on some basis other than what the judge learned from sitting in the trial.46

Bias is not established merely because the judge, in the same or earlier proceedings, has issued rulings adverse to the party requesting disqualification.47 Similarly, previous contact between a judge and a party in the same or different judicial proceeding does not automatically require disqualification.48 The fact that the judge is an adverse party in another proceeding does not result in automatic disqualification,49 for example, where the other action is a federal suit seeking to enjoin the judge on a question of jurisdiction.50 Further, given Delaware’s small size, minor social contacts between judges and members of the Bar when there are litigation matters before them does not automatically require disqualification of a judge.51  Similarly, brief prior contact with a defendant will not alone justify recusal.51.1

Disqualification is required when a near relative of the judge or the judge’s spouse is a litigant or is an officer, director or trustee of a party.52 A judge should be disqualified if the judge knows that the judge, the judge’s spouse or a minor child residing in the judge’s house has a financial interest in the subject matter in controversy or in a party to the proceeding or any other interest that could be substantially affected by the outcome of the proceeding.53 Further, a judge should disqualify himself or herself if the judge or the judge’s spouse or a person within the third degree of relationship to either of them or the spouse of such a person (i) is acting as a lawyer in the proceeding or is affiliated with the law firm of a lawyer in the proceeding, (ii) is known to the judge to have an interest that could be substantially affected by the outcome of the proceeding, or (iii) is to the judge’s knowledge likely to be a material witness in the proceeding.54

A judge in a non-jury criminal trial should be disqualified if, prior to trial, the judge has expressed a belief in the defendant’s guilt.55

The fact that a judge represented a party in an unrelated matter prior to becoming a judge does not mandate disqualification.56 A judge should be recused in any action, however, where the judge previously served as a 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 concerning it or the judge was associated in the practice of law within the proceeding year with a law firm or lawyers acting as counsel in the proceeding.57 Further, a judge should be recused if 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.58 A judge who was previously the Attorney General should be recused in any case where the judge (through one of the deputies Attorney General) was the nominal prosecutor or was named as an attorney in the case. This rule applies only to continuing litigation involving an adjudication which was in progress while the judge was Attorney General. A judge is not necessarily disqualified in new and totally unrelated litigation involving a party who had previously been prosecuted when the judge was Attorney General.59 Nor is a judge disqualified because a party has brought a separate action in federal court complaining about that judge’s actions in a previous unrelated state court proceeding.59.1 A judge may be disqualified where the judge recently sat in another case involving the same defendant, the judge is acting as the trier of fact, and credibility becomes an ultimate issue for the judge to determine.59.2

The test of appearance of bias is whether an objective observer viewing the circumstances would conclude that a fair and impartial hearing is unlikely.59.3  In a rape case where the judge’s former sister-in-law had previously been raped, and one of the men convicted of that crime was claimed to have sexually abused the complainant in the present action, the Delaware Supreme Court found there to be the appearance of bias notwithstanding the judge’s statement that she could be impartial.59.4

A judge disqualified pursuant to Canon 3C (excepting Canon 3(C)(1)(a) or 3(C)(1)(b)) may, instead of withdrawing from the proceeding, disclose on the record the basis for the judge’s disqualification.  If the parties and their lawyers, after such disclosure and an opportunity to confer outside the presence of the judge, all agree either in writing or on the record that the judge should not be disqualified, and the judge is willing to participate, the judge may continue to sit in the proceeding.  The agreement to permit the judge to continue to preside must be made part of the record in the case.60

In the event that no other judge is available to decide the case, the “rule of necessity” permits the judge to remain in the case notwithstanding any personal interest in the matter.61 Alternatively, the Governor has the power to commission a judge or judges ad litem to sit in any action where there are not a sufficient number of judges available.62

39. Petition of Wittrock, 649 A.2d 1953, 1054 (Del. 1994); Los v. Los, 595 A.2d 381, 383 (Del. 1991); Matushefske v. Herlihy, 214 A.2d 883, 886 (Del. 1965); Sand v. Martin, No. D-6200, slip op. at 1, Gallagher, J. (Del. Fam. Oct. 8, 1982).

40. Petition of Wittrock, 649 A.2d 1953, 1054 (Del. 1994);Del. Code Jud. Cond., Canon 3(C)(1). See also Ald. & M. Ct. R. 15(b).

41. Los v. Los, 595 A.2d 381, 385 (Del. 1991); Sand v. Martin, No. D-6200, slip op. at 1, Gallagher, J. (Del. Fam. Oct. 8, 1982). See also Matter of Stotlar, C.A. No. 1149, slip op. at 3, Hartnett, V.C. (Del. Ch. Dec. 19, 1985) (“[a] trial judge has a duty to hear cases assigned to him unless some reasonable factual basis to doubt his impartiality or fairness is shown by some kind of probative evidence”).

41.1.  Margolis Edelstein v. Goldstein, C.A. No. 09C-05-34 DCS, slip op. at 13, Streett, J. (Del. Super. July 13, 2011).

42. Gattis v. State, 955 A.2d 1276, 1285 (Del. 2008), cert. denied, 129 S.Ct. 914 (2009); Home Paramount Pest Control v. Gibbs, 953 A.2d 219, 221-22 (Del. 2008); Jones v. State, 940 A.2d 1, 18 (Del. 2007); Watson v. State, 934 A.2d 901, 905 (Del. 2007); Capano v. State, 781 A.2d 556, 641 (Del. 2001); Stevenson v. State, 782 A.2d 249, 255 (Del. 2001); Los v. Los, 595 A.2d 381, 384-85 (Del. 1991); First Federal Savings and Loan Association of Delaware v. Shipley, C.A. No. 83 l-MY-7, slip op. at 2, Taylor, J. (Del. Super. Mar. 18, 1992) (ORDER), aff’d mem., 616 A.2d 1214 (Del. 1992).

43. Del. Code Jud. Cond., Canon 3(C)(1)(a).

44. Dendy v. State, No. 479, 1988, slip op. at 6, Moore, J. (Del. Jan. 17, 1990 (ORDER); Sand v. Martin, No. D.6200, slip op. at 1, Gallagher, J. (Del. Fam. Oct. 8, 1982).

44.1. Jackson v. State, 684 A.2d 745, 753 (Del. 1996), cert. denied, 520 U.S. 1171 (1997); Los v. Los, 595 A.2d 381, 384 (Del. 1991).

45. Sand v. Martin, No. D-6200, slip op. at 1, Gallagher, J. (Del. Fam. Oct. 8, 1982).

46. Los v. Los, 595 A.2d 381, 384 (Del. 1991); Custis v. Collins, No. 428, 1992, slip op. at 2, Holland, J. (Del. May 14, 1993) (ORDER), disposition reported at 625 A.2d 278 (Del. 1993) (TABLE).

47. Gattis v. State, 955 A.2d 1276, 1286 (Del. 2008), cert. denied, 129 S.Ct. 914 (2009); Jackson v. State, 684 A.2d 745, 753 (Del. 1996); Petition of Wittrock, 649 A.2d 1953, 1054 (Del. 1994); Los v. Los, 595 A.2d 381, 385 (Del. 1991); Weber v. State, 547 A.2d 948, 951-52 (Del. 1988); Steigler v. State, 277 A.2d 662, 668 (Del. 1971), vacated in part, 4.08 U.S. 93 (1972); Haskins v. State, No. 188, 1991, slip op. at 4, Moore, J. (Del. Aug. 19, 1991) (ORDER), disposition reported at 599 A.2d 413 (Del. 1991) (TABLE); Taylor v. State, No. 128, 1991, slip op. at 5, Moore, J. (Del. Aug. 12, 1991) (ORDER), disposition reported at 599 A.2d 414 (Del. 1991) (TABLE); Dendy v. State, No. 479, 1988, slip op. at 6, Moore, J. (Del. Jan. 17, 1990 (ORDER).

48. Petition of Wittrock, 649 A.2d 1953, 1054 (Del. 1994); Los v. Los, 595 A.2d 381, 384 (Del. 1991).

49. Los v. Los, 595 A.2d 381, 385 (Del. 1991); First Federal Savings and Loan Association of Delaware v. Shipley, C.A. No. 831-MY-7, slip op. at 3, Taylor, J. (Del. Super. Mar. 18, 1992) (ORDER), afl’d mem., 616 A.2d 1214 (Del. 1992).

50. Los v. Los, 595 A.2d 381, 385 (Del. 1991).

51. CM & M Group, Inc. v. Carroll, 453 A.2d 788, 794-95 (Del. 1982).

51.1. Jubb v. Dougherty, C.A. No. 08-07-199 JAP, slip op. at 10-13, Parkins, J. (Del. Super. Jan. 29, 2010) (fact that judge accompanied relative to a dental appointment with defendant a few years earlier did not warrant recusal); State v. Clark, I.D. #0405018386, slip op. at 6-7, Cooch, J. (Del. Super. July 20, 2007) (that sentencing judge’s spouse had been an occasional patient of the victim’s mother did not warrant recusal); State v. Gudzelak, I.D. No. 0407021808, Jurden, J. (Del. Super. Mar. 6, 2007) (that judge had, in earlier private practice, had attorney-client relationship with the defendant, which had been disclosed, did not warrant recusal).

52. Los v. Los, 595 A.2d 381, 384 (Del. 1991); Bayard v. McLane, 3 Del. 139, 3 Harr. 139, 150 (Del. Err. & App. 1840); Del. Code Jud. Cond., Canon 3(C)(1)(d)(i) (the near relative must be within the third degree of relationship, such as parents, grandparents, uncles, aunts, brothers, sisters, nieces or nephews, but not cousins).

53. Del. Code Jud. Cond., Canon 3(C)(1)(c).

54. Del. Code Jud. Cond., Canon 3(C)(1)(d).

55. Melvin v. State, 606 A.2d 69, 72 (Del. 1992).

56. Bass v. State, No. 401, 1986, slip op. at 3, Horsey, J. (DeL. Jan. 30, 1987) (ORDER).

57. Del. Code Jud. Cond., Canon 3(C)(l)(b).

58. Del. Code Jud. Cond., Canon 3(C)(l)(e).

59. Collins v. State, No. 75, 1985, slip op. at 7, Christie, J. (Del. Aug. 28, 1985) (ORDER), disposition reported at 505 A.2d 452 (Del. 1985) (TABLE).

59.1. Alston v. Dipasquale, C.A. No. 01-07-050, Witham, J. (Del. Super. Oct. 19, 2001); Alston v. Minner, CA. No. 01C-07-039, Witham, J. (Del. Super. Oct. 19, 2001).

59.2. Watson v. State, 934 A.2d 901, 907-08 (Del. 2007).

59.3.  Fritzinger v. State, ___ A.2d ___, ___ (Del. 2010); Gattis v. State, 955 A.2d 1276, 1285 (Del. 2008).

59.4. Fritzinger v. State, ___ A.2d ___, ___ (Del. 2010).

60. Del. Code Jud. Cond., Canon 3(D).

61. Crosse v. BCBSD, Inc., 836 A.2d 492, 493 n.1 (Del. 2003); Nellius v. Stiftel, 402 A.2d 359, 360 (Del. 1978).

62. Del. Const. art. IV, § 15.

© 2010  David L. Finger