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Recusal: Analysis of Case Law Under 28 U.S.C. ss 455 & 144

NCJ Number
Date Published
92 pages
This document analyzes case law under 28 U.S.C. Sections 455 and 144 to assist judges in ruling on recusal.
Litigants can move for trial judges to recuse themselves on grounds of partiality or the appearance of partiality. Improper denial of these motions can deprive citizens of their right to a “neutral and detached judge,” and diminish public trust in the judicial system. The statute 28 U.S.C. Section 144 deals with the bias or prejudice of a judge. Section 455 deals with the disqualification of a justice, judge, or magistrate. While section 455 overlaps and subsumes section 144, there are important differences between the two sections. Section 144 deals exclusively with actual bias, whereas section 455 deals with actual bias as well as other specific conflicts of interest and the appearance of partiality. Section 144 is triggered by a party’s affidavit while section 455 may be invoked by motion and requires judges to recuse sua sponte. Section 144 applies only to district judges while section 455 applies to any justice, judge, or magistrate. A third recusal statute, 28 U.S.C. Section 47 applies only to appellate judges or trial judges sitting by designation on appellate panels. This statute prohibits a recently promoted appellate judge from hearing an appeal of a case tried by that same judge. Recusal is usually unnecessary in cases of the judge’s adverse ruling or expression of opinion; rumor, suspicion, or innuendo; familiarity with parties or events; personal attacks on the judge; and threats or lawsuits against the judge. Recusal is more likely in cases of close personal or professional relationship to attorneys or others; public comments or outside activities; ex parte contacts; involvement pertaining to guilty plea; and a judge taking personal offense. Miscellaneous issues, such as timeliness of motion, recusal in bench trials, standing, efforts to investigate, rule of necessity, and substitution of counsel, are discussed. Appellate issues are analyzed, including standard of review, harmless error, interlocutory review, reviewability of recusal, mootness, guilty plea, and jurisdiction. 339 footnotes, 17 references


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