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Friday, June 07, 2013

Ind. Courts - If a justice is going to recuse him/her self, should that be announced when review is granted?

The Supreme Court voted yesterday to grant transfer in the Rockport coal gasification case. No break-down of how the justices voted on the question was provided.

Already questions have been raised regarding whether Justice Massa has/will participate in the case, citing that he was Governor Daniel's general counsel while the Indiana Finance Authority was negotiating the Rockport deal.

A grant of transfer takes at least three votes. Normally, as was the case yesterday, the details of the vote are not given when a transfer petition is granted, but they are when a transfer is denied. See, for example, a quote from this Dec. 10, 2012 post, headed "Indiana Supreme Court won't hear challenge to ruling allowing use of David Bisard blood test results":

ALL JUSTICES CONCUR, EXCEPT FOR DICKSON, C.J., WHO VOTES TO GRANT THE PETITION TO TRANSFER, AND MASSA, J., WHO DID NOT PARTICIPATE IN THE DECISION OF THIS MATTER.
That was a denial of transfer. Normally a grant of transfer states nothing about the vote.

But here is a case, Gaudin v. Austin, where the announcement of recusal was made at the time of transfer grant. From the Oct. 21, 2010 docket entry:

APPELLEE'S PETITION FOR TRANSFER IS HEREBY GRANTED. BRENT E. DICKSON, ACTING CHIEF JUSTICE. SHEPARD, C.J., IS NOT PARTICIPATING IN THE ADJUDICATION OF THIS MATTER.

The following month, oral argument was held in Gaudin, the "Brown County fire district case." A day later an order was issued indicating that the remaining four justices were split, meaning that the Court of Appeals opinion would be reinstated. (See this Nov. 17, 2010 ILB post.)

In Davis v. Simon, transfer was granted on Aug. 30, 2012, with no indication on the record that all the justices had not participated in the vote. However, on May 21, 2013, as with the Brown County case, after oral argument the justices announced they were split 2-2, with Justice Massa not participating. (A look at the video reveals J. Massa did not participate in the oral argument, in fact only three justices heard the oral argument, as J. Rush had not yet been seated.)

What is the test for recusal? In 1993 Chief Justice Shepard had participated in the Mike Tyson case: "during an earlier stage of the proceedings [and] fully expected to participate in whatever proceedings might eventually come before this Court. On October 3, 1992, an event occurred which caused me to consider whether I should disqualify." That is from Shepard's Oct. 15, 1993 recusal opinion in Tyson v. State. Some quotes:

SHEPARD, Chief Justice.

Appellant Tyson has filed an application by his counsel Alan M. Dershowitz asking me to vacate my earlier disqualification and cast a vote now on the petition to transfer denied by this Court on September 22, 1993. * * *

The test under Canon 3(C)(1) is whether an objective person, knowledgeable of all the circumstances, would have a reasonable basis for doubting the judge's impartiality. Cf. Perkins v. Spivey, 911 F.2d 22 (8th Cir.1990), cert. denied, 499 U.S. 920, 111 S.Ct. 1309, 113 L.Ed.2d 243 (1991). The question is not whether the judge's impartiality is impaired in fact, but whether there exists a reasonable basis for questioning a judge's impartiality. In re Beard, 811 F.2d 818 (4th Cir.1987). Concerns about public confidence in the judicial system underly Canon 3. See United States v. Hollister, 746 F.2d 420 (8th Cir.1984). A judge has a duty to promote public confidence in the impartiality of the judiciary. Ind.Judicial Conduct Canon 2.

Later in his recusal opinion Shepard wrote:
Having reached that decision, I confronted the question of when to do so. The custom in this Court is to disqualify when a case is fully submitted.
Presumably, based on Shepard's actions in both Gaudin and Tyson, early-on is also when the recusal decision is to be announced to the public.

Posted by Marcia Oddi on June 7, 2013 03:00 PM
Posted to Indiana Courts