COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 97

Recusal Due to Appointment or Reappointment of a Magistrate Judge.

The Committee has received an inquiry about the ethical obligations of a magistrate judge arising out of the relationship between members of the selection panel and a magistrate judge (1) following the initial appointment process, and (2) during and following the reappointment process.

We begin by briefly reviewing the appointment process. Magistrate judges are appointed and reappointed in accordance with the procedures set forth in 28 U.S.C. § 631 and regulations promulgated by the Judicial Conference of the United States. See Judicial Conference of the United States, Standards and Procedures for the Appointment and Reappointment of United States Magistrate Judges, set forth in Administrative Office of the United States Courts, The Selection and Appointment of Magistrate Judges, Appendix H (Oct. 1997, rev. June 1999). The active district judges appoint a selection panel with at least seven members consisting of lawyers and other members of the community. At least two members of the panel must be non-lawyers. The size and composition of panels varies from district to district, but the usual practice is to appoint active federal practitioners and prominent citizens of the community. Frequently United States Attorneys and Federal Defenders, or their designees, also serve on these panels.

When an appointment is being made to a vacant or newly created position, the panel is required to submit a list of five nominees to the court within ninety days of its creation. A majority of the active district judges selects a candidate from the list of five nominees. When a magistrate judge is being considered for reappointment, the panel reports to the court whether or not it recommends reappointment of the incumbent after the public and bar have been given notice and an opportunity to submit comments.

Throughout the appointment process, both the panel and the court are required to keep all information received, including the names of potential nominees and individuals recommended by the panel, in strict confidence.

This inquiry implicates Canons 2 and 3. Canon 2 provides:

A judge should avoid impropriety and the appearance of impropriety in all activities.
A. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
B. A judge should not allow family, social, or other relationships to influence judicial conduct or judgment.

Canon 3 provides:

A judge should perform the duties of the office impartially and diligently . . . .
C. Disqualification
(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned . . . .

Canon 3C(1) continues with a non-exhaustive list of circumstances under which a judge's impartiality might reasonably be questioned; however, none of these circumstances is applicable to this inquiry.

Canons 2 and 3 are designed not only to ensure against actual partiality but also the appearance of partiality. The controlling consideration is whether reasonable persons would perceive the judge as partial. The Commentary to Canon 2A sets forth an objective test for the appearance of impropriety, and this test is also useful in evaluating the impartiality requirement under Canon 3, namely ". . . whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired." Of course, the perception of partiality will vary depending on the facts and circumstances of any particular situation.

Several questions have been posed.

Initial Appointment

1. Should a magistrate judge notify all parties of the fact that a lawyer or party in the case was a member of the panel that originally considered the judge's application?
2. If such notification is required, for what period of time must this notification be given?
3. Is a magistrate judge required to recuse whenever a member of the panel appears as either a lawyer or party to a case?

A candidate who successfully applies for a vacant or newly created position assumes the office of magistrate judge and begins adjudicating cases after the panel has fulfilled its charge by recommending five nominees to the court and the court has made the appointment. While carrying out its responsibilities, the panel is under an obligation to conduct its activities in strict confidence. Therefore, the presumption is that a candidate has no knowledge of what the views or positions of individual panel members are with respect to any candidate. During the selection process, a candidate will undoubtedly be interviewed by members of the panel and may also be contacted by a member of the panel to obtain prior approval before third parties are contacted about the candidate.

In the opinion of the Committee, a magistrate judge following initial appointment is not obligated to notify the parties in a case that either a lawyer or a party in that case was a member of the panel that considered the judge's application since there is no reasonable basis for questioning the magistrate judge's integrity, impartiality, or competence. The selection process is a formalized one established in a way that encourages an objective evaluation of candidates based on merit. It is unlikely that an interpersonal relationship will develop between the candidate and any member of the panel during the selection process. Since the panel operates under a requirement of strict confidentiality, a candidate is not privy to the individual opinions of the panel members concerning any candidate. At best a candidate who is selected can infer that at least a majority of the panel agreed to place the candidate's name on the list of nominees. The candidate assumes the office of magistrate judge after the panel has completed its work.

Under these circumstances, a reasonable person, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, would not perceive a magistrate judge's ability to carry out judicial responsibilities with integrity, impartiality and competence to be impaired merely because an attorney or a party who was a member of the panel that considered the judge's application was appearing in a case before that judge. Of course, in the unlikely event that during the selection process something were to occur between a panel member and the magistrate judge that bears directly on the magistrate judge's ability to be, or to be perceived as being, fair and impartial in any case involving that panel member, then the facts of that particular situation would have to be evaluated by the magistrate judge to determine if recusal is an issue and if notification should be provided to the parties.

Reappointment Process

A. During the Existence of the Panel

1. Should the incumbent recuse from any matter in which an attorney who is a member of the panel represents a party? Should such a recusal apply to all members of the attorney's firm?
2. If recusal is required, for how long is it required?
3. If recusal is not required, then is the incumbent required to notify all parties in a case of the panel member's status on the panel considering the incumbent's reappointment? If so, for what period of time is the incumbent required to advise the parties of this situation?
4. If the United States Attorney or Federal Defender, or their designee, is a member of the panel, must the incumbent recuse in any criminal matters during the reappointment process?
5. Both the nonlawyer and lawyer members of the panel tend to be prominent citizens of the community that have investments and sit on boards of a number of businesses and community organizations. Should the incumbent recuse from any case in which a panel member has an interest? If so, how can the incumbent learn of the panel member's interests, since financial disclosures by panel members are not currently required?
6. May an incumbent advise attorneys and parties that the comment period is open and that they may make comments on the reappointment?

When a court is considering reappointing a magistrate judge, a panel is appointed prior to the expiration of the incumbent's term, in the manner previously described. Public notice is given soliciting comments from the public and the bar. During the process, the incumbent continues to adjudicate cases. After the panel makes its recommendation on reappointment to the court, the court decides whether or not to reappoint. If the court decides not to reappoint the incumbent, the incumbent is notified and the selection procedures prescribed for filling a vacant position are commenced.

An incumbent seeking reappointment obviously has a substantial interest in receiving a favorable recommendation from the panel and is well aware that his or her past service as a magistrate judge is being carefully reviewed and scrutinized. Therefore, in the opinion of the Committee, during the period of time that the panel is evaluating the incumbent and considering what recommendation to make concerning reappointment, a perception would be created in reasonable minds that the magistrate judge's ability to carry out judicial responsibilities with impartiality is impaired in any case involving an attorney or a party who is a member of the panel. Therefore, under Canon 3C(1) the magistrate judge is required to recuse in such a case. However, under Canon 3D, recusal in this situation would be subject to remittal should the magistrate judge in his or her discretion decide to utilize the remittal procedure. See "Notice Concerning Waiver of Judicial Disqualification" printed in the Note following the Commentary to Canon 3.

In the opinion of the Committee, recusal would be required only during that period of time when reappointment is under consideration by the panel and court. Following reappointment, the disqualifying factor is removed and recusal is not necessary unless, as previously noted, something occurred during the selection process between a panel member and the incumbent that directly related to the incumbent's ability to be, or to be perceived as being, fair and impartial in any case involving that panel member.

A situation may also arise in which the incumbent is not reappointed. Due to the strict requirement of confidentiality, the recommendation of the panel presumably will not be known to the incumbent. However, since it is probable that failure to be reappointed is due at least in part to an adverse recommendation of the panel, a magistrate judge in such a situation should continue to recuse, subject to remittal, for the balance of the term of office.

When an attorney is a member of the panel, the magistrate judge need only recuse, subject to remittal, in those cases in which that attorney appears and need not recuse in cases in which other members of that attorney's firm appear. In the opinion of the Committee, the relationship between other members of the firm and the panel is sufficiently indirect and attenuated that a reasonable person, with knowledge of the relevant circumstances set forth above, would not perceive the magistrate judge's ability to carry out judicial responsibilities impartially to be impaired in such cases.

Similarly, where a designee of a United States Attorney or Federal Public Defender is a member of the panel, the magistrate judge must recuse, subject to remittal, only in cases in which those designees appear and not in cases involving other attorneys from those offices. However, in those situations where the United States Attorney or the Federal Public Defender serves on the panel, recusal is necessary, subject to remittal, in all cases (criminal and civil) involving that attorney and that attorney's office due to the direct supervisory role those officials have over the attorneys and the cases in their respective offices.

If the magistrate judge knows that a lawyer or nonlawyer member of a panel, who is neither a lawyer nor a party in a case, has a financial or other personal interest that could be substantially affected by the outcome of a case, then the magistrate judge should recuse, subject to remittal. A reasonable person with knowledge of the relevant circumstances would perceive that the magistrate judge's ability to carry out judicial responsibilities impartially in such cases was impaired. The mere fact that a panel member is on the board of a business or community organization that is a party in a case is not necessarily in and of itself a sufficient basis to require recusal unless, for example, the panel member has a financial or other personal interest that could be substantially affected by the outcome of the case, or will be involved in the case as a witness or as a board member, trustee, or officer with a decision-making role concerning the litigation. Such determinations will necessarily be fact specific in any given case.

In the event that a magistrate judge is aware of or concerned about whether a panel member has a financial or other personal interest or role in a case, the magistrate judge should inform counsel and the parties about the reappointment process and disclose the names of the panel members. Counsel and the parties should be requested to notify the magistrate judge if anybody involved in the case is a member of the panel, and if so, whether to their knowledge that individual has a financial or other personal interest in the case that could be substantially affected by its outcome or will participate in any way in the litigation. Once the magistrate judge has the requested information, a fact specific determination concerning recusal can be made. Any recusal would be subject to the remittal procedure if the magistrate judge so chooses.

The magistrate judge may not advise attorneys and parties that the comment period is open and that they can make comments on the reappointment. No matter how well intentioned the magistrate judge might be in providing this information to attorneys and parties, there is a significant risk that they might feel pressured to comment favorably on the magistrate judge who is presiding over their case. Under Canon 2, a judge may not take advantage of the judicial office to promote personal interest. Any such action by a magistrate judge would run a significant risk of creating the appearance of impropriety.

B. Post Reappointment

1. After reappointment is the magistrate judge required to recuse or to notify the parties and attorneys in a proceeding that a member of the panel is appearing as counsel or as a party in the proceeding?

In the opinion of the Committee, after reappointment the magistrate judge is not required to recuse or to notify the parties and attorneys in the proceeding that a member of the panel is appearing as counsel or as a party in that proceeding for the same reasons that a magistrate judge is not required to do so after completion of the initial appointment procedure. The only exception to this would be in the unlikely event that during the selection process something were to occur between the panel member and the magistrate judge that bears directly on the magistrate judge's ability to be, or to be perceived as being, fair and impartial in any case involving that panel member. The particular facts of such a situation would have to be evaluated by the magistrate judge to determine if recusal is an issue and if notification should be provided to the parties.

In closing, the Committee notes that 28 U.S.C. § 455(a) contains language substantially similar to that quoted from Canon 3C(1) above. However, the charter of the Committee does not permit it to render opinions interpreting section 455. Magistrate judges may want to review the judicial interpretation of section 455 by various federal circuits in addition to the advice contained in this opinion.

October 13, 1999