COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 71

Disqualification After Oral Argument.

A judge inquires: (1) whether a decision that has been entered must be vacated, and the case submitted to a new panel, when it is discovered after entry of the decision that one of the judges who participated in it was disqualified; and (2) whether, when a panel has conferred but has not decided, and a judge finds that he or she is disqualified, the other judges are also disqualified, or may they proceed to decide the case?

The first question encompasses areas beyond this Committee's jurisdiction. Determination of what circumstances may taint a decision already entered is a judicial function, not that of a committee established to advise on ethical standards of the conduct of judges.

The Committee does advise that a judge should disclose to the parties the facts bearing on disqualification as soon as those facts are learned, even though that may be after entry of the decision. The parties may then determine what relief they may seek and a court (without the disqualified judge) will decide the legal consequence, if any, arising from the participation of the disqualified judge in the entered decision. Similar considerations would apply when a judgment is entered in a district court by a judge and it is later learned that the judge was disqualified.

The second question, because it concerns the appearance of impropriety and Canon 3C, is within the Committee's jurisdiction. Canon 3C(1) provides that "[a] judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned . . . ." The Committee is of the opinion that the remaining two judges on the panel are not disqualified merely because they conferred with the disqualified judge. Numerous situations arise in which a judge becomes aware of an important fact and yet must proceed to decide without regard to that fact (e.g., inadmissable evidence in a trial). Those who might believe that the disqualified judge exerted influence on the other two, and those who might believe the disqualified judge would attempt to influence his colleagues on the new panel, are unlikely to be satisfied regardless of what is done. The canon looks to disqualification when the impartiality of the two remaining panel members can "reasonably be questioned." The Committee is of the opinion that no reasonable basis exists for questioning the impartiality of the remaining members when the third recuses, whether that recusal occurs after oral argument or after conference on the case.

December 14, 1981
Revised January 16, 1998