Written by attorney Robert J McCarthy Jr

Appealing a denial of a motion to recuse

In reviewing a judge's denial of a recusal motion, the standard of review on appeal is whether there was an abuse of discretion. Demoulas v. Demoulas Super Markets, Inc., 428 Mass. 543, 546 (1998). The matter of recusal is generally left to the discretion of the trial judge. Demoulas at 547. See also: Care and Protection Summons, 437 Mass. 224, 239 (2002)(The decision to withdraw rests first within the judge’s sound discretion.); Commonwealth v. Clerico, 35 Mass. App. Ct. 407, 414 (1993)(The decision to withdraw from a case at any stage is within the judge's sound discretion.) An abuse of discretion must be shown to reverse a decision denying a recusal motion. Commonwealth v. Daye, 435 Mass. 463, 469 (2001). In considering whether to approve or deny a request for recusal a judge must consult his own emotions and conscience to determine whether he is free from bias or prejudice and then perform an objective appraisal of whether this is a proceeding in which his impartiality might reasonably be questioned. Correia v. Correia, 70 Mass. App. Ct. 811, 818 (2007). The standard of review on appeal is not whether a party believed the judge was impartial. The standard on appeal is whether the judge himself believed that he was free from bias or prejudice and whether he himself believed that his impartiality would not be reasonably questioned. Correia v. Correia, 70 Mass. App. Ct. 811, 818 (2007). The Massachusetts Appeals Court has held that in order to establish a basis for recusal the moving party must show that a judge demonstrated bias or prejudice arising from an extrajudicial source, and not from something learned from participation in the case. Commonwealth v. Eddington, 71 Mass. App. Ct. 138, 144 (2008). Bias cannot be demonstrated by simply stating that a judge sat on a prior case involving similar parties. The Supreme Judicial Court of Massachusetts has held that it was not an error to deny a recusal motion where a judge terminated the parental rights of a couple on two prior occasions and was involved in a third care and protection case with the parents. Care and Protection Summons, 437 Mass. 224 (2002). In that case the parents pointed to alleged specific facts attempting to show that the judge was biased and should have recused himself. Care and Protection Summons at 239. Even if a judge had formed a negative opinion of a party because of the judge's prior exposure to the case, this would not constitute prohibited bias. Commonwealth v. Eddington, 71 Mass. App. Ct. 138, 143 (2008). Likewise, the fact that a judge presided over a previous criminal trial involving the same defendant was not a ground for disqualification, Commonwealth v. Campbell, 5 Mass. App. Ct. 571, 587 (1977) and prior adverse rulings involving a moving party does not require recusal. Foley v. Foley, 27 Mass. App. Ct 221, 222 (1989). Nor does the formation of an opinion based upon information developed in the course of the prior related proceedings. Adoption of Seth, 29 Mass. App. Ct. 343, 351 (1990). The alleged bias and prejudice to be disqualifying must rise from an extrajudicial source and not from something learned from participation in the case or from a hearing in a related proceeding. Howe v. Prokop, 21 Mass. App. Ct. 919, 919-920 (1985). In order to sustain an appellate claim that a judge committed an abuse of discretion in a recusal matter, it must be demonstrated that no conscientious judge, acting intelligently, could honestly have taken the view expressed by him. Commonwealth v. Eddington, 71 Mass. App. Ct. 138, 143 (2008).

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Disclaimer: None of the information or materials posted above is intended to constitute legal advice. Viewing this outline does not constitute an attorney client relationship. Local counsel should always be consulted before contemplating any legal action. The above information is general in nature and should not be undertaken without the express advice of an attorney of your choosing. Rob McCarthy is an attorney licensed to practice law in the Commonwealth of Massachusetts, before the military courts of the United States and before the federal district court of Massachusetts. He is a former officer in the U.S. Marine Corps and was a candidate for the U.S. Congress from Massachusetts in 2010. He may be reached at 781-816-9001.

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