Recusal motions: When you strike at a king, you must kill him.

kill the kingThe quote (not the graphic) in the title of this post is attributed by some to Ralph Waldo Emerson. But, the fog of history makes that attribution questionable. That said, the quote nicely describes the primary factor a litigator must consider when determining whether to file a recusal motion based upon a trial judge’s statements concerning the case (or related cases) while the judge is presiding. If you file the motion, you best win it.

At the federal level, the law on recusal is judge-centric. You have a really rough road getting a trial judge thrown off a case during the pendency of the matter unless your case fits one of the few categorical recusal requirements like a judge owning stock in a party.

The bias against forced disqualification is particularly true where the judge says something about the case he or she is handling. In a “hot off the press” opinion written in a style that I greatly favor because of the clarity and simplicity of it, Judge Hamilton* of the Seventh Circuit, writing for himself, Chief Judge Wood and Judge Posner provides a nice illustration of my point.

The case–In Re City of Milwaukee (PDF download will be generated)–is one involving a mandamus petition filed against the trial judge, and the opinion begins this way:

The City of Milwaukee is defending a number of lawsuits brought by scores of plaintiffs alleging that its police officers have conducted unconstitutional stops and searches, including strip searches and body cavity searches. Judge Stadtmueller [link provided by Kopf] has been assigned to preside over several of these cases. Milwaukee, asserting that some of the judge’s comments in opinions and conferences in the related cases raise reasonable questions about his impartiality, moved for his recusal under 28 U.S.C.§ 455(a). The judge declined. [Citation omitted.]

Milwaukee and its police chief now seek to force the judge aside by petitioning for a writ of mandamus. (For convenience we refer to both petitioners as Milwaukee or the city.) The plaintiffs in the underlying cases have filed a joint response arguing that the petition should be denied. We conclude that Milwaukee’s petition for a writ of mandamus must be denied.

What follows in 10 pages of plain prose (that even the press understood) provides a tutorial worth reading. If you decide to read the opinion, I would be interested in  your views.


*Judge Hamilton was a distinguished federal trial judge before he went to the Seventh Circuit. I appreciated the clarity of his opinions as a district judge, and I am glad to see that same style prevail as a Circuit judge.

*H/t How Appealinng.


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