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Table of Contents
- Introduction
- Case Summary
- The Current Procedure and Grounds for Recusal in Georgia
- Proposed Legislation in Georgia
- Professionalism Considerations
- Conclusion
Recusal In Georgia Post-Caperton: What Can We Expect?
I. INTRODUCTION
Earlier this year, in Caperton v. A.T. Massey Coal Co., Inc., 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009), the United States Supreme Court held in a 5-4 opinion that a State Supreme Court of Appeals judge who presided over an appeal involving a corporate party whose President and CEO had contributed some $3 million to the judge’s election campaign should have recused himself as a matter of due process. What does this mean to judges, attorneys and litigants here in Georgia? Does this opinion change the grounds or procedure for recusal? Will there be, as predicted by the dissenting opinions, a flood of recusal motions? Will the judicial election process change in any way? And, perhaps most important, will Caperton change the way judges in Georgia evaluate whether they ought to self-recuse? What can we expect?
II. CASE SUMMARY
The facts of the case are best summarized in the Syllabus of the Reporter of Decisions:
After a West Virginia jury found respondents, a coal company and its affiliates (hereinafter Massey), liable for fraudulent misrepresentation, concealment, and tortious interference with existing contractual relations and awarded petitioners (hereinafter Caperton) $50 million in damages, West Virginia held its 2004 judicial elections. Knowing the State Supreme Court of Appeals would consider the appeal, Don Blankenship, Massey’s chairman and principal officer, supported Brent Benjamin rather than the incumbent justice seeking reelection. His $3 million in contributions exceeded the total amount spent by all other Benjamin supporters and by Benjamin’s own committee. Benjamin won by fewer than 50,000 votes. Before Massey filed its appeal, Caperton moved to disqualify now-Justice Benjamin under the Due Process Clause and the State’s Code of Judicial Conduct, based on the conflict caused by Blankenship’s campaign involvement. Justice Benjamin denied the motion, indicating that he found nothing showing bias for or against any litigant. The court then reversed the $50 million verdict. During the rehearing process, Justice Benjamin refused twice more to recuse himself, and the court once again reversed the jury verdict. Four months later, Justice Benjamin filed a concurring opinion, defending the court’s opinion and his recusal decision.[1]
The U.S. Supreme Court majority disagreed with Justice Benjamin and found that, under facts it called “extreme by any measure,”[2] he should have recused himself.
Why was the U.S. Supreme Court hearing a recusal case? Isn’t recusal normally a matter governed by statutes, rules and codes of judicial conduct? Normally, it is. But Caperton argued that not only had Justice Benjamin violated West Virginia’s Code of Judicial Conduct by failing to recuse himself, but that this failure amounted to a denial of due process. Thus, the question presented was whether the Due Process Clause of the Fourteenth Amendment was violated by the judge’s refusal to recuse.[3]
The Court began its analysis by noting that “it is axiomatic that ‘[a] fair trial in a fair tribunal is a basic requirement of due process,'”[4] but that “most matters relating to judicial disqualification [do] not rise to a constitutional level.”[5] In the leading case on the subject,Tumey v. Ohio, the Court “concluded that the Due Process Clause incorporated the common-law rule that a judge must recuse himself when he has ‘a direct, personal, substantial, pecuniary interest’ in a case.[6] However, “[p]ersonal bias or prejudice ‘alone would not be sufficient basis for imposing a constitutional requirement under the Due Process Clause.'”[7]
The Court went on to discuss two instances where due process becomes a concern in the recusal context. One is where the judge has a financial interest in the outcome of a case.[8]For example, in Tumey, the mayor of a village received a salary supplement for performing judicial duties, and the funds for that compensation were based on fines he assessed in the cases he heard.[9] Thus, the more people the mayor-judge convicted, the higher his salary would be, and the funds from the fines went into the village’s general treasury, which made him look good as mayor. The Court in Tumey held that the Due Process Clause required disqualification “both because of [the mayor-judge’s direct pecuniary interest in the outcome, and because of his official motive to convict and to graduate the fine to help the financial needs of the village.”[10] The controlling principal was as follows:
Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.[11]
The second instance requiring recusal involves a judge who has no pecuniary interest in the case but who is challenged because of a conflict arising from his participation in an earlier proceeding.[12] For example, in the Murchison case, a judge who was interviewing witnesses to determine whether criminal charges should be brought found one of the witnesses untruthful and charged him with perjury.[13] The other witness declined to answer the judge’s questions because he did not have counsel present, so the judge charged him with contempt.[14] Then the same judge proceeded to try and convict both witnesses.[15] The Court recited the general rule that “no man can be a judge in his own case” and found that the situation required recusal because “having been a part of [the one-man grand jury] process a judge cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those accused.[16] In a later case, the Court held “that by reason of the Due Process Clause of the Fourteenth Amendment a defendant in criminal contempt proceedings should be given a public trial before a judge other than the one reviled by the contemnor.”[17] Concluding its analysis of precedent, the CapertonCourt wrote:
The inquiry is an objective one. The Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is “likely” to be neutral, or whether there is an unconstitutional “potential for bias.”[18]
Regarding Justice Benjamin’s actions, the Court acknowledged that he had “conducted a probing search into his actual motives and inclinations; and he found none to be improper.”[19] Then, the Court said what it would not do: “We do not question his subjective findings of impartiality and propriety. Nor do we determine whether there was an actual bias.”[20] Rather, the Court noted that “[t]he difficulties of inquiring into actual bias and the fact that the inquiry is often a private one, simply underscore the need for objective rules” and that “the Due Process Clause has been implemented by objective standards that do not require proof of actual bias.”[21] Further,
In defining these standards the Court has asked whether, “under a realistic appraisal of psychological tendencies and human weakness,” the interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.”[22]
Turning to the facts of the case, the Court stated that “[n]ot every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case.”[23] The Court’s inquiry centered on two main issues: the amount of the contribution and its timing. Regarding the amount of the contribution, the Court noted that Blankenship’s $3 million was more than the contributions of all other Benjamin supporters combined and that it was more than three times what Benjamin’s own campaign committee spent.[24] The court concluded that this amount had “a significant and disproportionate influence on the electoral outcome.”[25] As for the temporal relationship between the campaign contributions, the justice’s election, and the pendency of the case, the Court wrote it was “reasonably foreseeable, when the campaign contributions were made, that the pending case would be before the newly elected justice.”[26] The Court found that “Blankenship’s significant and disproportionate influence – coupled with the temporal relationship between the election and the pending case – ” ‘ “offer a possible temptation to the average…judge to…lead him not to hold the balance nice, clear and true” ‘ “[27] Ultimately, the Court held that “[o]n these extreme facts the probability of actual bias rises to an unconstitutional level.”[28]
The Court emphasized the extraordinary circumstances of this case and stated that it had done “nothing more than what the Court has done before.”[29] It also pointed out that nearly every state, West Virginia included, has adopted the American Bar Association’s objective standard: “A judge shall avoid impropriety and the appearance of impropriety.”[30] No doubt addressing the dissenting opinions, the majority pointed out that “[b]ecause the codes of judicial conduct often provide more protection than due process requires, most disputes over disqualification will be resolved without resort to the Constitution” and predicted that “[a]pplication of the constitutional standard implicated in this case will thus be confined to rare instances.”[31]
There were two dissenting opinions. Chief Justice Roberts expressed concern about the majority’s expansion of due process grounds for recusal beyond previous precedent. He wrote “[t]he Court’s new ‘rule’ provides no guidance to judges and litigants about when recusal will be constitutionally required” and that “[t]his will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be.”[32] He stated that the majority’s standard “fails to provide clear, workable guidance for future cases,” and went on to list no fewer than 40 examples of questions that courts would have to wrestle with in the context of recusal.[33] Among the questions he posed were:
1. How much money is too much money? What level of contribution or expenditure gives rise to a “probability of bias”?
…
2. How do we determine whether a given expenditure is “disproportionate”? Disproportionate to what?
…
7. How long does the probability of bias last? Does the probability of bias diminish over time as the election recedes? Does it matter whether the judge plans to run for reelection?
…
17. What if the judge disagrees with the supporter’s message or tactics? What if the judge expresslydisclaims the support of this person?
…
35. What is the proper remedy? After a successful Caperton motion, must the parties start from scratch before the lower courts? Is any part of the lower court judgment retained?[34]
Justice Kennedy further worried that the holding would require judges “simultaneously to act as political scientists…, economists…, and psychologists….”[35] And he criticized the majority for departing “from a clear, longstanding constitutional rule to accommodate an ‘extreme’ case involving ‘grossly disproportionate’ amounts of money.[36] Finally, after appearing to minimize Blankenship’s contributions, he predicted that “opening the door to recusal claims under the Due Process Clause, for an amorphous ‘probability of bias,’ will itself bring our judicial system into undeserved disrepute, and diminish the confidence of the American people in the fairness and integrity of their courts.”[37] He then added, “I hope I am wrong.”[38]
Justice Scalia was more direct in his separate dissent. After noting that “[t]his course was urged upon us on grounds that it would preserve the public’s confidence in the judicial system,” he predicted “[t]he decision will have the opposite effect.”[39] Quoting from the Talmud,[40] he then opined:
Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed-which is why some wrongs and imperfections have been called nonjusticiable. In the best of all possible worlds, should judges sometimes recuse even where the clear commands of our prior due process law do not require it? Undoubtedly. The relevant question, however, is whether we do more good than harm by seeking to correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernible rule. The answer is obvious.[41]
According to Westlaw Keycite, as of November 19, 2009, there have been 27 reported decisions citing Caperton since the opinion was issued. Of those 27, four distinguishCaperton on the facts and hold that recusal was not warranted.[42] Whether this is indicative of a flood of litigation is anyone’s guess, and so far, there are no Georgia that citeCaperton. But what could this decision mean for us here in Georgia?
III. THE CURRENT PROCEDURE AND GROUNDS FOR RECUSAL IN GEORGIA
Uniform Superior Court Rule 25 governs the procedure for recusal. Rule 25.1 provides that a motion to recuse or disqualify a judge presiding in a particular case shall be timely filed and presented with accompanying affidavit(s) not later than five (5) days after the affiant first learned of the alleged grounds for disqualification.[43] Affidavits
shall clearly state the facts and reasons for the belief that bias or prejudice exists, being definite and specific as to time, place, persons and circumstances of extra-judicial conduct or statements, which demonstrate either bias in favor of any adverse party, or prejudice toward the moving party in particular, or a systematic pattern of prejudicial conduct toward persons similarly situated to the moving party, which would influence the judge and impede or prevent impartiality in that action. Allegations consisting of bare conclusions and opinions shall not be legally sufficient to support the motion or warrant further proceedings.[44]
Upon presentation of a motion to recuse, the judge in the case determines whether the motion is timely and the affidavit sufficient.[45] The motion is then assigned for hearing to another judge according to a set procedure.[46] The judge selected to hear the motion may consider it solely upon the affidavits but may also order an evidentiary hearing.[47] After considering the evidence, the judge ruling on the motion must make written findings and conclusions.[48] If the motion is sustained, another judge is assigned to the case, again according to set procedures.[49] The rules also provide for voluntary recusal.[50]
The grounds for disqualification of a judge are set forth in O.C.G.A. 15-1-8 and include a judge’s pecuniary interest in a case, her relation by consanguinity or affinity with a party, and her prior participation in the case.[51] The Code of Judicial Conduct provides “a broader rule of disqualification” such that “judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned….”[52] Canon 3E. The Code of Judicial Conduct makes it clear that:
- Judges shall uphold the integrity and independence of the judiciary;[53]
- Judges shall avoid impropriety and the appearance of impropriety in all their activities;[54] and
- Judges shall perform the duties of judicial office impartially and diligently, and “shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned. . . .”[55]
In regard to recusal, Canon 2 states: “Judges…shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Thus, even if the judge feels that she can disregard prior client and employment relationships and be impartial, the judge “must avoid all impropriety and appearance of impropriety.”[56]
The movant’s burden on a motion to recuse does not require the movant to show any actual impropriety or bias on the part of the trial judge; rather, the fact that her impartiality might reasonably be questioned suffices for her disqualification.[57] In that regard, “impartiality might reasonably be questioned” means a “reasonable perception of lack of impartiality by the judge, held by a fair-minded and impartial person based upon objective fact or after reasonable inference.”[58]
Will the grounds and/or the procedure for recusal in Georgia change to incorporate the dictates of Caperton? Or are the standards currently in place already more stringent than what due process requires? Given the “appearance of impropriety” standard, is there any need to legislate grounds relating specifically to contributions to judicial elections?
IV. PROPOSED LEGISLATION IN GEORGIA
Currently pending in the Georgia General Assembly is House Bill 601, sponsored by Representatives Edward Lindsay, Wendell Willard, Rob Teilhet and David Ralston.[59] This bill grew out of a Study Committee on Judicial Election Reform chaired by Rep. Lindsey during the 2008 Session. The Findings and Recommendations of the Study Committee as to recusal were as follows:
Recusal
A balance must be maintained between the importance of popularly electing judges, the practical necessity for judicial candidates in contested elections to raise contributions to run an effective campaign, the First Amendment right of individuals and organizations to express their view in a judicial campaign, and the need for judges to avoid both actual and reasonably perceived conflicts of interest in regards to cases pending before them.
Therefore, we recommend the following:
A judge may be recused from a case pending before him/her if:
- A party or attorney or law firm representing a party contributes either “directly or indirectly” a sum greater than the amount allowed under state law for direct contributions to a judicial candidate. “Directly or indirectly” shall include not only contributions made to the candidate’s campaign but also funds spent independently either in support of the judicial candidate or in opposition to his/her opponent; or
- The judge failed to set up a finance committee to solicit contributions and instead solicited directly contributions from any party or attorney or law firm representing a party in a case pending before him/her.
It shall be the duty of any party and his/her attorney within 10 days of the filing of the last answer in a lawsuit to file a notice with the opposing party of any direct or indirect contributions that may require the court to take under consideration recusal. Within 10 days of receipt of such notice any opposing counsel may move to recuse the judge from the case. In addition, the judge may on his/her own motion recuse his/herself from the case.[60]
House Bill 601 proposes to add the following provisions to O.C.G.A. 15-1-18 regarding recusal:
(f) A judge or Justice of any court that is elected to such office shall recuse himself or herself from any case before his or her court:
(1) If such judge failed to set up a campaign committee to accept contributions and instead directly solicited contributions from any party or attorney or law firm representing a party in a case pending before his or her court; or
(2) Involving a party or his or her attorney that has made an influential action concerning a campaign of the judge presiding over the party’s case during the election of such judge. It shall be the duty of any party who has made an influential action, or such party’s attorney, to serve a notice on the opposing party within ten days of the filing of the last answer in a lawsuit communicating to the opposing party that an influential action may exist that could require the presiding judge to recuse himself or herself. Within ten days of receipt of such notice, opposing counsel shall have the option to move to recuse the judge from the case. Nothing in this subsection shall be interpreted to prevent a judge presiding over a case where an influential action has been made from recusing himself or herself from such case. This subsection shall be applicable to all influential actions occurring within two years after the presiding judge has taken office for his or her current term.[61]
This bill appears to put the onus on the party or attorney who has made the contribution to speak up and give notice, but it does not address what happens if they fail to do so. Can the opposing party use these new grounds to file a motion to recuse following the procedures outlined in the Uniform Superior Court Rules? Will these new grounds mean that, upon assignment of a case to a judge, it will become standard practice to conduct research into whether the opposing party or his counsel has contributed to the judge’s campaign and, if so, when, how much, and in what proportion? And will these new grounds result in more voluntary recusals?
V. PROFESSIONISM CONSIDERATIONS
The Caperton opinion recognizes that a judge’s decision on recusal, whether raised by the judge herself or by a party, is never an easy one. The Court writes that “judges often inquire into their subjective motives and purposes in the ordinary course of deciding a case,” and that “[t]his does not mean the inquiry is a simply one.”[62] To be sure, a motion to recuse on the basis of campaign contributions carries with it a particularly accusatory tone; it insinuates that the judge is “on the take” or “for sale to the highest bidder.” Moreover, given the current state of the media, appearances of impropriety can be and sometimes are manufactured out of thin air. How do we, as a profession, strike a balance between good advocacy for our clients, which in some cases may mean raising the issue of recusal in a particular case, and maintaining respect for and dignity of the judiciary especially and the practice of law generally?
Perhaps a good starting point is the realization that as attorneys, we face ethical and moral dilemmas every day, and we often consult with each other and seek out advice from those with more experience and with different backgrounds from our own. In that regard, the collegial nature of our profession is of great help to us. We would also do well to remember that it requires constant attention to remain self aware so that we remain as honest and as candid with ourselves as humanly possible. Even so, there will be times when we fail, and when that happens, humility should dictate our actions, and respect and empathy should guide the rest of us. Finally, the lesson of finding a way to agree to disagree while remaining respectful to our colleagues is one we would all do well to learn.
Therefore, motions to recuse should be made with discretion and only after careful consideration of all the factors at play. Affidavits must be based on facts, not emotions or innuendo, and the facts should be stated as neutrally and respectfully as possible. Motions should be taken not as personal attacks, but as legitimate inquiries into whether justice can be done. For an extreme example of a recusal case in which professionalism was sadly lacking, see Smith v. Bender,[63] which cites Caperton. In that case, which involved a pro sepetitioner who had been denied admission to the Colorado State Bar, the Court noted that the petitioner’s briefs were “littered with frivolous and irrelevant arguments and tirades” and “contain[ed] scurrilous allegations and personal attacks regarding alleged wrongdoing by the named [justices and judges].”[64] In affirming the lower court’s denial of the motion to recuse, the Tenth Circuit wrote:
We admonish and warn Mr. Smith that if he files further appeals in this court containing similar unsupported claims, allegations, or personal attacks, we will not hesitate to impose hefty sanctions and filing restrictions in order to curb his abusive and disrespectful litigation practices.[65]
At all times, attorneys, parties and judges must strive to behave professionally and keep the bigger picture in mind.
VI. QUESTIONS, QUESTIONS, AND MORE QUESTIONS
Chief Justice Roberts’ dissenting opinion lists 40 examples of questions that judges may face in the context of recusal post-Caperton.[66] And he commented that the majority’s opinion would require judges “simultaneously to act as political scientists (why did candidate X win the election?), economists (was the financial support disproportionate?), and psychologists (is there likely to be a debt of gratitude?).”[67]
But is there anything to suggest that judges are not up to the task? Judges consider complex issues all the time. Over the course of a complex divorce case, for example, a judge may be required to understand complicated forensic accounting findings, psychological evaluations, and custody arrangements, not to mention child support worksheets. Or in a business case, she may be dealing with anything from complex partnership agreements to intellectual property to bankruptcy. A judge’s job entails wading through multiple, conflicting facts, condensing them down and applying the law to them. In many cases, a judge must put personal preferences and biases aside in order to follow the law. So, when faced with a motion to recuse, does a judge suddenly switch gears and not turn to the same tools and experience that have guided her in the past?
In recognizing that it is never easy, Justice Kennedy quotes Justice Cardozo: “The work of deciding cases goes on every day in hundreds of courts throughout the land. Any judge, one might suppose, would find it easy to describe the process which he had followed a thousand times and more. Nothing could be farther from the truth.”[68] He continues:
The judge inquires into reasons that seem to be leading to a particular result. Precedent and stare decisis and the text and purpose of the law and the Constitution; logic and scholarship and experience and common sense; and fairness and disinterest and neutrality are among the factors at work. To bring coherence to the process, and to seek respect for the resulting judgment, judges often explain the reasons for their conclusions and rulings. There are instances when the introspection that often attends this process may reveal that what the judge had assumed to be a proper, controlling factor is not the real one at work. If the judge discovers that some personal bias or improper consideration seems to be the actuating cause of the decision or to be an influence so difficult to dispel that there is a real possibility of undermining neutrality, the judge may think it necessary to consider withdrawing from the case.[69]
Again, when faced with a specific question, it gets harder. What are some of the questions that a Georgia judge might face if confronted with a Caperton motion or other motion to recuse? Some examples might be:
- Given the holdings considering a judge’s pecuniary interest, does the assignment of a case to the Fulton County Business Court, which involves an additional $1,000 fee above the regular filing fee, raise any issues, given that the fees go to maintain the Business Court?
- Should expert witnesses be used to determine whether campaign contributions are disproportionate and whether the temporal relationship between an election and a pending case is indicative of bias?
VI. CONCLUSION
It is likely too early to say with any certainty what effect Caperton will have on recusals in Georgia. That said, it appears that the decision has already influenced proposed legislation on recusal specifically and judicial elections generally. One thing is certain: due process notwithstanding, recusal will continue to be a delicate creature, one best approached with a light touch rather than a heavy hand.
[1] Caperton v. A.T. Massey Coal Co., Inc., 129 S.Ct. 2252, 2254 (2009) (syllabus).
[2] Caperton at 2265.
[3] Id. at 2256.
[4] Id. at 2259, citing In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955).
[5] Id., citing FTC v. Cement Institute, 333 U.S. 683, 702, 68 S.Ct. 693, 92 L.Ed. 1010 (1948).
[6] Id., citing Tumey v. Ohio, 273 U.S. 510, 523 47 S.Ct. 437, 71 L.Ed. 749 (1927).
[7] Id., citing Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986).
[8] Id. at 2259-2260.
[9] Id. at 2260, citing Tumey at 520, 522.
[10] Id., citing Tumey at 535.
[11] Id., citing Tumey at 532.
[12] Id. at 2261.
[13] Id., citing Murchison at 134-135.
[14] Id.
[15] Id.
[16] Id., citing Murchison at 136-137.
[17] Id., citing Mayberry v. Pennsylvania, 400 U.S. 455, 466, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971).
[18] Id. at 2262.
[19] Id. at 2263.
[20] Id.
[21] Id.
[22] Id., citing Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975).
[23] Id. at 2263.
[24] Id. at 2264.
[25] Id. Justice Benjamin’s margin of victory was fewer than 50,000 votes.
[26] Id. at 2264-2265.
[27] Id. at 2265, citing Lavoie, 475 U.S. at 825.
[28] Id. at 2265.
[29] Id. at 2266.
[30] Id.
[31] Id. at 2267.
[32] Id.
[33] Id. at 2269-2270.
[34] Id. at 2269-2272 (emphasis in original).
[35] Id. at 2272.
[36] Id. at 2273.
[37] Id. at 2274.
[38] Id.
[39] Id.
[40] Id., “Turn it over, and turn it over, for all is therein.”
[41] Id. at 2275.
[42] The four cases are: E.I. DuPont de Nemours and Co., Inc. v. Aquamar S.A., 2009 WL 3110062 (Fla.App. 4 Dist. Sep. 30, 2009); Smith v. Bender, 2009 WL 2902563 (10th Cir.(Colo.) Sep. 11, 2009); Henry v. Jefferson County Com’n, 2009 WL 2857819 (N.D.W.Va. Sep 02, 2009); and In re Johnson, 408 B.R. 123 (Bankr.S.D.Ohio Jun 25, 2009).
[43] Uniform Superior Court Rule 25.1.
[44] Uniform Superior Court Rule 25.2.
[45] Uniform Superior Court Rule 25.3.
[46] Uniform Superior Court Rule 25.4.
[47] Uniform Superior Court Rule 25.6.
[48] Id.
[49] Id.
[50] Uniform Superior Court Rule 25.7.
[51] O.C.G.A. 15-1-8.
[52] Georgia Code of Judicial Conduct, Canon 3E. Accord, Gillis v. City of Waycross, 247 Ga. App. 119, 120 (2000) (holding that the judge’s involvement in a similar development authority to the defendant development authority was a sufficient ground to raise a reasonable question regarding the judge’s impartiality and required his recusal); Stephens v. Stephens, 249 Ga. 700 (1982) (holding that the trial court erred in failing to recuse a judge whose attorney’s son worked for a law firm which represented one of the parties in the case); Head v. Brown, 259 Ga. App. 855 (2003) (judge properly recused himself after learning that his former law firm had a lien for attorney’s fees against the defendant hospital’s insurance company, stemming from unrelated litigation).
[53] Georgia Code of Judicial Conduct, Canon 1.
[54] Georgia Code of Judicial Conduct, Canon 2.
[55] Georgia Code of Judicial Conduct, Canon 3.
[56] See commentary to Canon 2. See also Taylor v. Public Convalescence Service, 245 Ga. 805 (1980).
[57] Gillis, supra at 120; Eastside Baptist Church v. Vicinanza, 269 Ga. App. 239, 241 (2004); Liteky v. U.S., 510 U.S. 540 (1994) (“What matters is not the reality of the bias, but its appearance.”).
[58] Vicinanza, supra at 241. See also Isaacs v. State, 257 Ga. 126, 127-128 (1987) (“The fact that a judge’s impartiality might reasonably be questioned is sufficient for disqualification.”).
[59] H.B. 601, available at www.legis.state.ga.us.
[60] Judicial Election Reform Study Committee Final Report. All of the Committee’s recommendations can be found at http://www.gabar.org/public/pdf/leg/final%20judicial%20election%20proposals.pdf.
[61] H.B. 601 (line numbers removed).
[62] Caperton at 2263.
[63] 2009 WL 2902563 (10th Cir. (Colo.) Sep 11, 2009).
[64] 2009 WL 2902563 at *4.
[65] Id.
[66] Caperton at 2269-2272.
[67] Id. at 2272.
[68] Id. at 2263, citing B. Cardozo, The Nature of the Judicial Process 9 (1921).
[69] Id. at 2263.
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