Where angels fear to tread
Duncan Webb reviews Judicial Recusal: Principles, Process and Problems

In Judicial Recusal: Principles, Process and Problems (Hart Publishing, 2009), Grant Hammond has raised a number of hard questions about both the nature of the doctrine of judicial recusal and the proper process to be adopted when the Courts are called upon to address such an application.

Whether or not to make an application that a judge recuse him- or herself is one of the most difficult issues a lawyer can face. In some cases, the lawyer is righteously fearless and pitted against a judge who has erred in his or her professional duty. In other cases, the lawyer is raising spurious arguments and obstructing the effective and just disposition of cases. There is, of course, considerable middle ground where there may be a serious question to be considered; however, the fact that on the law as it stands an application for recusal is made to the very judicial officer whose independence is under scrutiny means that some lawyers go where angels would fear to tread.

Hammond surveys the recusal rule and its history in a number of Commonwealth jurisdictions as well as giving an overview of the position in the United States, focusing on the federal position. This provides a useful comparative insight, which highlights the strengths and weaknesses of the various approaches. Perhaps one salient feature of the US material was the considerable susceptibility of the US system to allegations of bias where judicial officers are either elected or appointed by a political process. This is most pronounced where donations are made and received by litigants to fund the election campaign of judges. To the commonwealth mind, this seems problematic and quite possibly corrupt. But Hammond provides a number of US examples where this kind of relationship has been rejected as a ground for recusal. A further interesting feature of the US position is the prevalence of statutory guidelines by which the legislature has attempted to dictate to the Courts the bounds of proper conduct. Perhaps predi
ctably, given the constitutional place of the Courts as equal to the legislature in the US, the Courts have resisted the imposition. 

A striking difference between the US and Commonwealth approaches is the absence of any legislative intervention in most Commonwealth jurisdictions. Because the higher courts are themselves creations of the common law, their processes (and in the common law world, recusal has been considered strictly a matter of the Court’s inherent jurisdiction) have been left to themselves to determine.

Impartiality
The underlying principle is uncontentious. A judge must be impartial (or, Hammond suggests, objective). This means a judge cannot adjudicate a matter to which he or she is a party, nor where he or she has a financial interest. This most basic of rules has been called the rule of actual bias and raises its head infrequently, and even then there are rarely issues of high theory involved. Perhaps the only questions of interest in respect of actual bias are those relating to what is a disqualifying level of pecuniary interest where the interest is small or diffuse, and what kind of relationship is too distant or tenuous to amount to actual bias. I was surprised to see that the law seemed to reach a high-water mark in this regard around 150 years ago, and the Courts have progressively retreated from a strict approach in favour of a more pragmatic de minimus attitude.

The law has developed largely around the area of what has been labeled ‘apparent bias’; ie those cases where the judge may not have a direct interest in the outcome of the proceeding or be a party to it, but there are other relationships or interests which mean that an appearance of bias might be considered to exist to a reasonable and informed observer. Hammond notes the current fluidity of the actual/apparent bias distinction and explores the emergence of the “automatic disqualification” test adopted by the House of Lords as well as the trend towards a unified test in Australia. In doing so, he discusses the evolution of the test of apparent bias and its frequent iterations. It might be observed that, to the non-expert reader, the distinctions drawn (for example between “reasonable apprehension” of bias and “reasonable possibility” of bias) seem arcane and almost trifling. Hammond recognises this view, but firmly rejects it, maintaining that important differences exist (at 38).

Hammond is careful throughout to carve off the related issue of judicial misconduct (as a denial of the right to a fair hearing) as distinct from bias (as a denial of the right to an impartial tribunal), and deals with it in chapter 15. For those who indulge in schadenfreude, this chapter will be enjoyable reading, with some truly appalling instances of misbehavior. In those cases where the behaviour of a judge is so unacceptable as to deprive a litigant of their right to a fair hearing, this is not due to some actual or apparent interest of relationship affecting the impartiality of the judge but rather simple unfairness of process. One example given is where a judge not only takes a dislike to a litigant or counsel (which is understandable) but makes this clear in an unacceptable way. Another example was where a judge makes it clear that he or she has reached a firm and unshakable conclusion without fully hearing one party, or where the judge’s thinking is “warped”. These are instances of a failure to accord a fair hearing, and do not depend on a finding that the judge on entering into the judicial process was actually or apparently predisposed to one side or another due to personal interests or connections.

The related issues of the relevance of a judge’s views outside of the judicial role are considered in chapter 16. The trend in the common law world to appoint judges who have had colourful histories is noted. It is increasingly recognised that imposing constraints on the previous activities of judges will limit the field of excellent candidates for appointment significantly. However, the existence of prior views and ethical or political standpoints increases the likelihood of a problem of bias. Such matters are accepted as routine in the US (where appointment or election is often on the basis of the very views that would found a recusal application in the Commonwealth).

A further useful distinction made by Hammond is that between interests and relationships which might properly found a recusal application and opinions and predispositions which simply form part of the make-up of any judge. Litigants will be understandably apprehensive (and disappointed) when they learn their case is to be heard by a judge who has ruled against parties who were similarly situated in previous cases, or has opined on a live question of law extrajudicially in an unhelpful way. However, this cannot be a ground for recusal. Hammond notes the distinction made in human rights scholarship between the right to a fair trial and the right to have that trial considered by an independent and impartial tribunal.

The bugbear of judges is the strategic (and arguably abusive) recusal application whereby litigants and their lawyers seek to judge-shop or to slow down litigation. One of the real challenges for the doctrine is how such applications can be discouraged effectively without depriving litigants of their right to raise the issue of bias. Apart from the strongly argued suggestion that bias applications should be heard by a judge other than the one under scrutiny, and an exhortation against timidity, this issue is not addressed in depth.

It is perhaps to be expected that a book on this topic written by a senior and experienced appellate judge is tinged with the view that the apparent bias rules have gone too far and that recusal applications are granted needlessly. Hammond suggests there is too much concern with formalities and appearances and insufficient concern with actualities, suggesting judges are too ready to recuse on only a whiff of some interest affecting their decision (at 52). However, in the latter part of the work, he suggests that recusal applications be heard by a judge other than the one it is made in respect of. Arguably, this would be burdensome in some cases and an invitation to less than scrupulous lawyers to grind the proceedings to a halt, and cuts across the view that the rules have gone too far.

Who should decide?
The issue of whether the judicial officer in respect of whom an allegation of bias is made should decide a recusal application is a constant thread in this work. Hammond comes out firmly in favour of the matter being decided by some other judicial officer. Of course, if the matter is clear (but was perhaps overlooked by the judge who would have recused himself without application had he realised), then the granting of the application need not trouble another judge. There is obvious merit in genuinely difficult cases being decided by another judge (although there are also compelling countervailing pragmatic reasons for dealing with such questions summarily which are often overlooked).

The difficult cases are, however, those groundless applications, or applications which barely cross the threshold of frivolousness and appear to be brought for strategic reasons such as delay, or judge-shopping. In such cases, to defer the application and allocate it to another judge will play into the hands of lawyers or litigants who are using tactics that are questionable at best. The issue is directly considered in chapter 9. The basis for Hammond’s stance is strong: where judges at whom applications are directed decide the matter, it looks dangerously like they are judges in their own cause. While the argument that the accused judge is best situated to know if a disqualifying bias is identified, it is understandably not pressed. Indeed, the whole underpinning of the doctrine of apparent bias is the fact that a judge may think him- or herself uninfluenced, but in fact be materially swayed by interests or relationships otherwise considered irrelevant.

Costs
A further procedural issue which might bear scrutiny is the issue of whether costs should be awarded against the Court and in favour of a party who has brought a successful appeal on the basis of a failure to recuse. This is touched on at page 104. Given the considerable cost that may be incurred and the fact there may be a suggestion of failure of a judicial officer to recognise his duty, there is a cogent argument for such awards.

A case where such an application may have been appropriate is the recent New Zealand case of Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122. An appeal was brought to the Supreme Court on the basis that a judge of the Court of Appeal ought to have recused himself on the basis of a close business relationship with counsel. The Supreme Court initially declined to grant the appeal, but an application for recall was made. It transpired that further information was provided by the Judge which had not initially been before the Supreme Court and the judgment was recalled and the appeal allowed. The matter was returned to the Court of Appeal for the first appeal to be reheard. This was undoubtedly at enormous wasted expense to both parties, and arguably the fault of neither, and is perhaps illustrative of a situation in which a costs order against the Court itself might be appropriate.

While the acute desire of a judge not to “get it wrong” in recusal matters is understandable, given the fact that it is his or her own conduct that is under scrutiny, there is a real danger of excessive timidity in such matters. Although Hammond at various points bemoans the growth of such applications, the theme of chapter 8 is “if in doubt, out”.

Of interest is the recognition that there are a number of other less formal filters for problems that might otherwise lead to a recusal. These include case allocation in the jurisdiction and even the judicial appointment process itself. However, the work provides little practical guidance at this point, rather extolling judges to act prudently or wisely in such matters. Without further elucidation, this is of limited utility.

Courts of final appeal
Particular problems arise in courts of final appeal. The discussion of the practice of the US Supreme Court and the comparison with the well-known steps taken by the House of Lords in Regina v Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No. 2) [2000] 1 AC 119 is fascinating. While in Pinochet, the Lords effectively sat in judgment on one of their own, the issue of bias in the US is left to each individual Supreme Court justice personally. Occasionally, reasons are given; however, oftentimes, the affected justice simply states whether or not he or she intends to sit. While it appears likely that there is some peer discussion, the justices are not subject to their peers’ authority on the question of recusal. To the commonwealth lawyer, this can only be explained on the basis of the quasi-political nature of the role of US Supreme Court justices and the more ready acceptance of political influences on judicial decision making (if not an outright lack of independence).

This work highlights the fact that there is no clear procedural law dealing with how recusal ought to be dealt with. Although the Commonwealth does not have the absolute lacuna that the US Supreme Court is blessed with, the approaches to recusal applications seem to be dealt with in accordance with good practice and the Court’s inherent jurisdiction to regulate itself. At the risk of inviting undeserving applications, it may be time to address such matters in the court rules specifically. Hammond identifies that the current practices in respect of recusal applications lack the transparency and accountability which elsewhere would be considered essential for a legitimate adjudicative function (at 92). He quite correctly considers this “unhealthy” and “out of step”. Although the promulgation and adoption of the recommended disqualification procedure of the Council of Chief Justices of Australia (of which New Zealand is a member) is recognised as a welcome development, it might be time to address how such applications are made (and appealed) in the relevant court rules.

While it is clear that a refusal to recuse may be a ground of appeal, it is not clear whether that right arises immediately on the refusal or only after the matter has been decided. It has been suggested that where a judge fails to recuse, no curial decision affecting the parties’ rights has occurred (citing R v Bain [2008] NZCA 455). There are also commonly cited pragmatic arguments for proceeding to determine the substantive issue between the parties before allowing such an ‘interlocutory’ appeal. However, Hammond seems to be of the view that matters of bias are sufficiently important to warrant a standalone appeal right at an ‘interlocutory’ stage.

The lack of jurisprudential development around the law of recusal is well illustrated by the discussion in chapter 11 on waiver. There are good reasons for recognising that a party who expressly waives a right to object to a particular disclosure ought not to be permitted to later raise the matter. This is recognised by Hammond as an unresolved question of constitutional significance. However, where the bias is a serious one (perhaps actual), there are strong countervailing arguments to say that the prohibition of judging in one’s own cause is not waivable, and that such conduct is inimical to the proper discharge of the judge’s duties. Problems of this nature are of course magnified in the area of implied waiver, where it is suggested that waiver can be inferred from the conduct of the litigants or their counsel.

Judging the judges
Underlying this work is a particular perspective on the task of judging. While there has been much ink spilt on the topic of judicial and legal reasoning, there may be benefit in pinning down the special features of the judge’s task. Hammond does this to an extent in chapter 7 in which he talks of the importance of process. He also takes this further in chapter 8, where he discusses the qualities required of a judge. I am somewhat sceptical of some of the values Hammond says a good judge should have (and others such as Anthony Kronman have said good lawyers should have) such as prudence or practical wisdom. More earthy commentators such as Oliver Wendell Holmes simply called it horse sense, which seems equally amenable to analysis.

The philosophical underpinning of the recusal rule is a need to ensure fair process. While it is undoubtedly true that fair process is an integral element of any adjudication procedure that parties will accept as legitimate and binding, there is increasing recognition that what is fair must take into account contextual factors such as the nature of the parties, what is in dispute, and the resources of the State available to adjudicate. Perhaps more scholarly attention could be directed to the pragmatic constraints on judges in order to clarify what terms such as independence and objectivity mean in the context of adjudication. While Hammond’s analysis of what amounts to a defensible legal process is informative, there is perhaps room for further exploration as to the fundamental building blocks such as honesty, impartiality, diligence, and the duty to rule on the issue, which underpin the judge’s role. If we understand these matters, perhaps we will understand better how to address the issue of recusal.

As the work draws to a close, Chapter 18 discusses possible reforms. Of particular interest is the observation that objectivity is an idealist (and perhaps a formalist) fiction. The question then becomes how to distinguish those influences which are not invidious and ought to be accepted as inevitable background against which the judge’s decision is to be made from those which might undermine the fairness of the curial process. While in a sense this is no more than the now commonplace, postmodern observation that there is no such thing as a third-person observer (or decider) – every person who views or decides a matter does so from his or her own unique viewpoint, the law of recusal is arguably yet to catch up with this observation.

This work is a real and meaningful contribution to an area of the law which in the Commonwealth lacks cohesion. Hammond purports not to be providing a firm doctrinal foundation for recusal law. Given the underdeveloped nature of the procedure, he may be being suitably modest; however, he has provided a rigorous analysis of the issues and laid out in some detail the pitfalls and possible paths forward in this area. As a former academic, lawyer, and now a senior appellate judge, he brings considerable experience to bear on the issues. The work appears to be written, at least in parts, as guidance for judges, and the frustrations (and perhaps fears) of a working judge can be detected at parts. At times, there is a sense that Hammond is particularly sympathetic to the plight of judges (and the invidious prying and innuendo they can sometimes be subject to). Of course, the privacy interest of judges is equal to, or arguably greater than that of members of the general public. These issues of disclosure are addressed in chapter 9. However, in cases of scandalous conduct by judges, he does not pull any punches.

If any criticisms could be made of the book, it might be observed that in the latter part, the chapters become somewhat shorter, less well structured, and with less rigorous analysis than the early chapters. The work is cross jurisdictional, and seeks to provide both a discussion of principle and in parts a detailed analysis of the law, and arguably falls short in this regard. The work is perhaps best viewed as an essay of the classical tradition. It traverses many and varied points in an interesting way while making good arguments for Hammond’s own views. In doing so, it draws on numerous works which are not on the reading list of any modern law school (not least The Book of Common Prayer) and shows an enormous breadth of knowledge which is lacking in much modern legal writing. It illustrates that this area of the law is not well mapped and shows that the time may be right for a thorough jurisprudential analysis of the law of recusal in the Common Law world.

Perhaps the key insight of the work is that any consideration of recusal needs to take into account the interests protected. While originally rules of bias may have been directed at ensuring a correct decision unaffected by improper personal interest, the focus has shifted. The interest now protected is the integrity of the Courts and the legitimacy of the curial process. As such, the question is not whether there has been (or is likely to be) some erroneous decision flowing from the alleged bias. Rather, the focus is whether reasonable litigants would be satisfied that the curial process was in all of the circumstances a fair and legitimate one.

This work will be an invaluable resource for judges considering, as well as litigants and lawyers bringing or opposing, recusal applications. I hope it doesn’t fall into the wrong hands.