The Volokh Conspiracy

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Recusal and a Spouse's Long-Past Employment (Including as a Lawyer)


From Dfinity Found. v. N.Y. Times Co., decided today by Judge Lewis Kaplan (S.D.N.Y.):

This is a defamation case against The New York Times, two of its reporters, and others. The plaintiff, allegedly a Swiss foundation, moves to recuse the undersigned on the ground that his spouse, whom he married in 2004, was a reporter for the The New York Times from 1969 to 1979 and in-house media counsel to the prominent publisher, Random House, "through the year 2000." {The plaintiff omits the fact that she was an Assistant United States Attorney in this district from 1979 until 1983.} It contends that recusal is warranted under 28 U.S.C. § 455(a) because the "impartiality [of the undersigned] might reasonably be questioned" on that basis. {While plaintiff has not mentioned the fact, though it long has been a matter of public record, the Court notes also that his spouse receives pension payments from the Newspaper Guild NY—NY Times pension plan and a pension plan for the benefit of retirees of Random House, Inc.}

As the Second Circuit repeatedly has made clear, recusal under Section 455(a), insofar as relevant here, is required only where "a reasonable person, knowing all the facts, would conclude that the trial judge's impartiality could reasonably be questioned." It has made clear also, moreover, that "to say that § 455(a) requires concern for appearances is not to say that it requires concern for mirages."

As Judge Mukasey wrote in the case quoted by the Second Circuit (and in the preceding sentence): "Section 455(a) was not meant to require disqualification every time one party can make some argument, no matter how unreasonable, that the appearance of prejudice would result. Indeed, a judge must be alert to avoid the possibility that those who would question his impartiality are in fact seeking to avoid the consequence of his expected adverse decision …. Nothing in [§ 455(a)] should be read to warrant the transformation of a litigant's fear that a judge may decide a question against him into a 'reasonable fear' that the judge will not be impartial."

In my view, a reasonable person could not reasonably question the Court's impartiality on the basis that my spouse worked for The New York Times over 43 years ago and for Random House over 20 years ago—in each case years before our marriage. That view is unchanged by the fact that my spouse receives benefits from pension plans on account of her employment by those two entities. Indeed, the fact that she long has been retired makes the plaintiff's contention even more unreasonable. Accordingly, the motion to recuse the undersigned is denied.

Sounds quite right to me. A spouse's ideological commitments (or professional activities related to those commitments) are generally not a grounds for recusal, see, e.g., Judge Stephen Reinhardt's opinion in Perry v. Schwarzenegger (9th Cir. 2011), the California same-sex marriage initiative case in which he participated while his wife, Ramona Ripston, was the head of the ACLU of Southern California:

The chief basis for the recusal motion appears to be my wife's beliefs, as expressed in her public statements and actions, both individually and in her capacity as Executive Director of the American Civil Liberties Union of Southern California (ACLU/SC). She has held that position for 38 years, during 20 of which we have been married, although over one year ago she announced her retirement effective next month.

My wife's views, public or private, as to any issues that may come before this court, constitutional or otherwise, are of no consequence. She is a strong, independent woman who has long fought for the principle, among others, that women should be evaluated on their own merits and not judged in any way by the deeds or position in life of their husbands (and vice versa). I share that view and, in my opinion, it reflects the status of the law generally, as well as the law of recusal, regardless of whether the spouse or the judge is the male or the female. My position is the same in the specific case of a spouse whose views are expressed in the capacity of an officer, director, or manager of a public interest or advocacy organization that takes positions or supports legislation or litigation or other actions of local, state, or national importance.

Proponents' contention that I should recuse myself due to my wife's opinions is based upon an outmoded conception of the relationship between spouses. When I joined this court in 1980 (well before my wife and I were married), the ethics rules promulgated by the Judicial Conference stated that judges should ensure that their wives not participate in politics. I wrote the ethics committee and suggested that this advice did not reflect the realities of modern marriage—that even if it were desirable for judges to control their wives, I did not know many judges who could actually do so (I further suggested that the Committee would do better to say "spouses" than "wives," as by then we had as members of our court Judge Mary Schroeder, Judge Betty Fletcher, and Judge Dorothy Nelson). The committee thanked me for my letter and sometime later changed the rule.

That time has passed, and rightly so. In 2011, my wife and I share many fundamental interests by virtue of our marriage, but her views regarding issues of public significance are her own, and cannot be imputed to me, no matter how prominently she expresses them. It is her view, and I agree, that she has the right to perform her professional duties without regard to whatever my views may be, and that I should do the same without regard to hers. Because my wife is an independent woman, I cannot accept Proponents' position that my impartiality might reasonably be questioned under § 455(a) because of her opinions or the views of the organization she heads.

Nor can I accept the argument that my wife's views constitute an "interest" that could warrant my recusal under § 455(b)(5)(iii), as such a reading would require judges to recuse themselves whenever they know of a relative's strongly held opinions, whether publicly expressed or not…. Moreover, because § 455(b)(5)(iii) applies not only to the interests of a judge's spouse, but to the interests of any "person within the third degree of relationship to either" a judge or a judge's spouse, § 455(b)(5), such a reading would require a judge's recusal when various other relatives, such as great-grandchildren and nephews-in-law, head a public interest organization that has expressed a position concerning a case.

Where the spouse is actually an employee or an officer of a party, the matter may well be different, as Judge Reinhardt mentioned:

Proponents additionally suggest that I must recuse myself due to specific ACLU/SC litigation activities. I have long had a policy regarding any conceivable conflict that might result from such activities. I do not participate in any actions by this court when the organization of which my wife is the Executive Director makes any appearance or files any brief, amicus or otherwise, before this court. The clerk's office was notified of this policy many years ago and it has been implemented in numerous cases. In fact, it is impossible to know how many times I have actually recused myself from such cases because the Clerk's office automatically assigns cases covered by my policy to panels of which I am not a member rather than to a panel I am on, as a result of this directive. Later, if there is an en banc call, I advise the Clerk to record the fact that I am recused and to notify the court.

But Judge Reinhardt concluded that the ACLU/SC wasn't sufficiently involved in the litigation (though it did join "in two amicus briefs and an unsuccessful intervention motion" in district court, which "were among twenty-four amicus briefs filed in the district court on behalf of 122 organizations and private individuals. The two briefs were not cited in any way in the district court's findings of fact and law, and the ACLU/SC had no further connection with the case in the district court and none at all as the case came before us."

In this case, Judge Kaplan's wife connection to the Times is of course much more attenuated. The one possibly complicating issue, as Judge Kaplan notes, is the retirement plan (this matter often comes up when judges have pensions from their old firms), but I'm inclined to say that the connection there is also rather attenuated.