Bias and Personal Knowledge

Bias and Personal Knowledge

The first specific ground in Rule 2.11(A) requires a judge to disqualify when she “has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.”¹ The word “or” makes the two clauses independent. A judge who feels nothing about either side must still step aside if she personally knows the facts the parties contest, and a judge who knows nothing about the facts must still step aside if she holds a personal bias. The first clause concerns what the judge feels about a person in the case; the second concerns what the judge already knows about the events in the case.

Both grounds describe something the judge carries into the courtroom before any evidence is offered, and both threaten the decision by a route the parties cannot test. Hostility or favor toward a litigant or lawyer can tilt the weight a judge gives to evidence that is properly in the record. Private knowledge of the disputed events can put the judge’s own memory in place of proof the parties were entitled to contest. In either case the decision may rest on something other than the evidence and argument presented in court. Other grounds in the Rule, taken up later in this chapter, turn on visible ties such as family relationships and economic interests; these two concern the judge’s own mind.

Rule 2.11(A) frames its list with the general directive that a judge disqualify in any proceeding in which her impartiality might reasonably be questioned, “including but not limited to” the listed circumstances.² Bias and personal knowledge are therefore recurring situations the Rule singles out by name, and the general standard still reaches facts the list omits. The first subsection below asks what kind of attitude counts as bias and toward whom it must be directed. The second takes up personal knowledge, where the central risk is that the judge becomes a witness in her own case.

Personal Bias or Prejudice

Bias and prejudice are settled leanings toward or against a particular person, leanings that would shape how a judge weighs evidence and argument before either side is heard. The ground covers favor as well as hostility: the federal standard speaks of “favoritism or antagonism,” and a judge predisposed toward one litigant tilts the outcome as surely as one predisposed against.³ Two features of the ground do most of the work in practice. The attitude must concern a person in the case, and it must generally have come from outside the proceeding. Each limit has its own reason, and together they separate the judge who must step aside from the judge who is simply doing the work of judging.

The Model Rule names two possible targets, a party and a party’s lawyer.⁴ Hostility toward counsel counts because a judge who dislikes a lawyer may receive that lawyer’s arguments and objections with a closed mind, and the client pays for it. The federal text quoted in Liteky v. United States speaks only of bias “concerning a party” and never mentions a lawyer, a difference worth noticing when a question asks which regime applies.⁵ Neither text reaches a judge’s opinions about the law. Judges arrive on the bench with convictions about statutes and doctrines, and treating those views as bias would disqualify nearly every judge from some category of case, because a litigant could remove a judge by quoting the judge’s own articles. An attitude toward a person can tilt a decision between two parties who stand under the same legal rule, which is why the clause is aimed at persons.

The second limit, the source of the attitude, comes from the courts and not from the Rule’s text. It traces to the extrajudicial-source doctrine, which Liteky described as recited in only one earlier opinion of the Court, United States v. Grinnell Corp., and which Liteky read to mean a source outside the judicial proceeding at hand.⁶ Lower courts applied the doctrine unevenly. Many, perhaps most, did not treat knowledge and attitudes a judge properly acquired in an earlier proceeding as extrajudicial.⁷ In working terms, courts ask whether the attitude came from what the judge saw, heard, and decided while performing judicial functions, or from somewhere else, such as a friendship, a private dispute, or an earlier career.

The reason for the limit is that a judge cannot decide a case without forming impressions of it. She must assess credibility, evaluate conduct that the evidence reveals, and rule for one side on every contested motion, so each case produces a loser who can point to the judge’s unfavorable view. If impressions formed in the case counted as bias, disqualification would follow from the act of judging itself, and the judge who learned the most about a dispute would be the first removed. A litigant could also manufacture the ground by provoking the court. Confining the doctrine to attitudes the judge brought into the case keeps the inquiry on the predisposition that disqualification exists to catch, one that no evidence in the record produced and no argument in court can test.

Liteky also set the standard for attitudes that arise inside the proceedings. The Court held that opinions arising during judicial proceedings require disqualification under § 455(a) only if they “display a deep-seated favoritism or antagonism that would make fair judgment impossible.”⁸ Subsection (a) does not erase the source limitation in (b)(1): “personal bias or prejudice” does not consist of a disposition that fails the extrajudicial-source doctrine, and an adverse disposition traceable to information acquired in a prior trial is not an objective appearance of personal bias or prejudice.⁹ A ruling does not itself supply an outside source. Trial rulings have a judicial expression rather than a judicial source, though they may rest on extrajudicial knowledge or motives, and a ruling that does remains open to challenge.¹⁰ For judicial conduct inside the courtroom, the Court added a practical measure: manifestations of animosity must be much more than subtle to establish bias.¹¹

An appellate court applied the same limit to a judge’s expression of frustration at trial. In Dahl v. Dahl, the judge said that counsel’s conduct was counter-productive to getting the case resolved, and the court observed that the statement arose from the proceedings before the judge, not from an extrajudicial source.¹² The judge also addressed the statement to all counsel at trial and singled out no particular litigant or lawyer, and the court found nothing suggesting judicial bias.¹³ Every case requires rulings that go against one side, so treating adverse rulings or a general remark of impatience as proof of bias would expose judges to the charge in every case they decide.

A recusal motion calls for two steps from the judge herself. In Haddad v. Gonzalez, the Massachusetts court explained that when a judge faces a question about her capacity to rule fairly, she must consult first her own emotions and conscience, and that, even if she concludes she can act fairly and impartially, she must then attempt an objective appraisal of whether this is a proceeding in which her impartiality might reasonably be questioned.¹⁴ The first step asks about her actual state of mind. The second asks whether the situation, objectively appraised, leaves her impartiality open to reasonable question. A harsh view of a litigant formed by watching the evidence about that litigant’s conduct sits on the judicial side of the line, as the next hypothetical shows.

An attitude toward people connected to a case can come from a different place. In McCullough v. Commission on Judicial Performance, the judge had a long-term friendship with the Cerrato brothers and had discussed Frank’s arrest with them outside court. The California Supreme Court concluded that, in view of that extrajudicial discussion and the friendship, he should have promptly disqualified himself, citing the canon that lists a judge’s personal bias or prejudice concerning a party among the circumstances in which impartiality might reasonably be questioned.¹⁵ It further concluded that his handling of the Cerrato case constituted wilful misconduct.¹⁶ The contrast with the housing judge lies in origin. Her opinion rested on what she heard in the courtroom, a basis visible in the record to both sides. The McCullough judge’s leaning rested on a personal relationship and a private conversation about the very matter before him, neither of which the opposing side could observe or answer.

Claims that rest on a judge’s earlier life as a lawyer belong on the same outside-the-case side of the line. In United States v. Mathison, Mathison argued on appeal that the trial judge should have recused himself because Mathison had embarrassed and humiliated him during a deposition in a civil case several years earlier, when the judge was in practice, and the court set out the two federal grounds in play: impartiality that might reasonably be questioned under § 455(a), and personal bias or prejudice concerning a party under § 455(b)(1).¹⁷ Because the alleged source lies outside the proceeding, the extrajudicial-source limit does not answer such a claim by itself. The question becomes whether that history leaves reasonable doubt about the judge’s impartiality toward the party.

The Justices did not agree on how much the origin of an attitude should matter. Justice Kennedy, writing separately in Liteky, accepted that doubts about a judge’s impartiality seldom have merit when the challenged mindset arises from a judicial proceeding, and he called the extrajudicial-intrajudicial dichotomy a convenient shorthand with some slight utility.¹⁸ He objected, however, that the Court’s standard placed all but dispositive weight on the source of the alleged disqualification, was not a fair interpretation of the statute, and was quite insufficient to protect the integrity of the courts.¹⁹ He also predicted that the deep-seated-antagonism standard would be difficult to distinguish from a per se extrajudicial-source rule, the very result the Court professed to reject.²⁰ The majority’s formulation governs, and the separate opinion marks where some Justices would loosen it.

Federal law adds a procedural route to the same ground. Under § 144, recusal for bias or prejudice followed only in response to a party’s affidavit, and the statute reached only district judges. Subsection (b)(1) of § 455 duplicated the § 144 grounds, extended them to all justices, judges, and magistrates, and placed on the judge herself the obligation to identify the ground.²¹ A federal judge who recognizes a personal bias concerning a party must therefore act without being asked, which fits the mandatory “shall” of the Model Rule.²²

The second step does the sorting, since the same hostile words can be harmless in one setting and disqualifying in another, depending on their origin. Whether the parties may waive the ground is a separate question, taken up in the waiver section below.

Personal Knowledge of Facts

The second clause of Rule 2.11(A)(1) requires disqualification when the judge has “personal knowledge of facts that are in dispute in the proceeding.”²⁴ The federal statute uses nearly the same words: “personal knowledge of disputed evidentiary facts concerning the proceeding.”²⁵ Two phrases set the reach of the clause. “Personal” points to what the judge has learned first-hand, and “in dispute” confines the ground to facts the parties actually contest, the facts a fact finder exists to resolve. The bias clause concerned an attitude toward a person, while this clause concerns information, so it stands on its own logic.

That logic lies in how facts are supposed to reach a decision-maker. Testimony and exhibits come before the court in a form both sides can examine, challenge, and answer. A judge who saw the events herself carries a version of them that no one swore to, no one cross-examined, and no one can rebut. The party hurt by that memory cannot question it and may not know it is at work, yet it can settle a credibility contest silently by deciding which witness the judge believes. The risk is sharpest in a bench trial, where the judge who knows the facts is also the judge who finds them, and no witness stand is needed for her knowledge to operate.

The courts state the concern in terms of the judge becoming a witness. In Price Bros. Co. v. Philadelphia Gear Corp., the court relied on Canon 3(C)(1)(a), which imposes a duty to disqualify where impartiality might reasonably be questioned because of “personal knowledge of disputed evidentiary facts concerning the proceedings,” and it identified the problem with a judge’s personal knowledge of the facts: he may thereby be transformed into a witness for one party.²⁶ The same opinion shows that the ground is not confined to what the judge herself observed. It discussed Kennedy v. Great Atlantic & Pacific Tea Co., a slip-and-fall suit in which the trial judge’s law clerk testified that he had visited the store after a rainstorm and seen a puddle on the floor. The trial judge repeatedly cautioned the jury not to attach any special significance to the clerk’s testimony, yet the Court of Appeals held that it was required to vacate the judgment in the exercise of its supervisory power.²⁷

The appellate court’s reasoning explains why the cautions did not help. It observed that avoiding contacts outside the record that might affect the outcome was the duty of the law clerk as much as of the trial judge. It reasoned that the finder of fact must be free from external causes tending to disturb the exercise of deliberate and unbiased judgment, and that courts must not tolerate any ground of suspicion that the administration of justice has been interfered with.²⁸ A clerk’s private fact-gathering therefore raises the same concern as the judge’s own, and a curative instruction cannot reliably undo it.

The two judges differ in where their knowledge came from. Learning facts from evidence admitted at the hearing is the ordinary function of judging, and the adversary process tests that knowledge before the judge uses it. The clause is aimed at knowledge acquired outside the proceeding, which no one had the chance to test. The words “in dispute” add a second boundary: a fact the parties agree on leaves no contested proof for the judge’s memory to displace, so the danger arises only for facts the fact finder must resolve. When an exam fact pattern has a clerk or other staff member gathering information outside the record, ask whether the information concerns a disputed fact and could reach the decision, because the clerk’s role does not insulate the judge.