This article is in the news archives --- for current news go to the Third Branch News.
For Judges, a Recusal Reminder
Title 28 U.S.C. § 455 places on all judges the responsibility for
avoiding conflicts of interest between their financial interests and their
assigned cases. It requires a judge not only to be informed about his or her
personal financial interests but also to make a reasonable effort to be informed
about the personal financial interests of his or her spouse and minor children.
Recent media coverage of judges who have failed to stay current should be fair
warning of the importance of updating financial interest lists.
Section 455 is mirrored by Canon 3C(2) of the Code of Conduct
for United States Judges, which imposes on judges a duty to keep informed so
that they can recuse themselves from cases in which they have disqualifying
financial holdings. In accordance with Canon 3C(1)(c), judges are required to
recuse themselves whenever they or their spouses or minor children residing in
the household have "a financial interest in the subject matter in controversy or
in a party to the proceeding."
Administrative Office Director Leonidas Ralph Mecham wrote to
judges in February emphasizing the importance of up-to-date financial
information, as did Judges A. Raymond Randolph, chair of the Conference
Committee on Codes of Conduct, and Frank Magill, chair of the Conference
Committee on Financial Disclosure, in a subsequent memorandum to all judges.
Mecham noted that it is important to ensure that appropriate screening
mechanisms are in place to prevent possible conflicts from occurring. "Most
courts already have such screening procedures in place in the clerk's office, in
chambers, or both," Mecham said. "Nevertheless, it is always prudent to ensure
that the financial information these procedures rely upon is complete and
up-to-date." Randolph and Magill also urged that care should be taken to include
all disqualifying financial interestswhether or not recorded on other reporting
formswhen a recusal list is compiled.
The most common form of disqualifying financial interest is the
ownership or control of securities. However, a judge's need to recuse can be
minimized, depending upon the type of investment. For example, mutual fund
investments will usually eliminate the risk of conflicts of interest involving
individual companies, and the number of stocks can be limited to an easily
managed number. Turning over investments to a trust or money manager, however,
does not relieve a judge of his or her legal and ethical duties to remain
informed about financial holdings.
In some courts, clerks of court maintain the recusal lists. In
others, judges or their secretaries keep track of disqualifying connections.
Even if the court has automated the process, automatically notifying judges of
conflicts, the system is only as good as the information entered. Judges should
review and update lists on a regular basis. An investment list can be supplied
to the court officials responsible for reviewing new case assignments so that
cases are not assigned to judges who own stock in a party. The list also can be
used in chambers for comparison with the current caseload to ensure that an
inheritance, gift, or new purchase of stock does not involve any parties in