28 U.S.C. § 144 Bias or prejudice of judge

Whenever a party to any proceeding in a district court makes and files a timely and

sufficient affidavit that the judge before whom the matter is pending has a personal

bias or prejudice either against him or in favor of any adverse party, such judge

shall proceed no further therein, but another judge shall be assigned to hear such

proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or

prejudice exists, and shall be filed not less than ten days before the beginning of

the term at which the proceeding is to be heard, or good cause shall be shown for

failure to file it within such time. A party may file only one such affidavit in any

case. It shall be accompanied by a certificate of counsel of record stating that it is

made in good faith.

28 U.S.C. § 455 Disqualification of justice, judge, or magistrate judge

(a) Any justice, judge, or magistrate judge of the United States shall disqualify

himself in any proceeding in which his impartiality might reasonably be

questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal

knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in

controversy, or a lawyer with whom he previously practiced law served

during such association as a lawyer concerning the matter, or the judge or

such lawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and in such capacity

participated as counsel, adviser or material witness concerning the

proceeding or expressed an opinion concerning the merits of the particular

case in controversy;

(4) He knows that he, individually or as a fiduciary, or his spouse or minor

child residing in his household, has a financial interest in the subject matter

in controversy or in a party to the proceeding, or any other interest that could

be substantially affected by the outcome of the proceeding;

(5) He or his spouse, or a person within the third degree of relationship to

either of them, or the spouse of such a person:

(i) Is a party to the proceeding, or an officer, director, or trustee of a

party;

(ii) Is acting as a lawyer in the proceeding;

(iii) Is known by the judge to have an interest that could be

substantially affected by the outcome of the proceeding;

(iv) Is to the judge’s knowledge likely to be a material witness in the

proceeding.

interests, and make a reasonable effort to inform himself about the personal

financial interests of his spouse and minor children residing in his household.

(d) For the purposes of this section the following words or phrases shall have the

meaning indicated:

(1) “proceeding” includes pretrial, trial, appellate review, or other stages of

litigation;

(2) the degree of relationship is calculated according to the civil law system;

(3) “fiduciary” includes such relationships as executor, administrator,

trustee, and guardian;

(4) “financial interest” means ownership of a legal or equitable interest,

however small, or a relationship as director, adviser, or other active

participant in the affairs of a party, except that:

(i) Ownership in a mutual or common investment fund that holds

securities is not a “financial interest” in such securities unless the

judge participates in the management of the fund;

(ii) An office in an educational, religious, charitable, fraternal, or civic

organization is not a “financial interest” in securities held by the

organization;

(iii) The proprietary interest of a policyholder in a mutual insurance

company, of a depositor in a mutual savings association, or a similar

proprietary interest, is a “financial interest” in the organization only if

the outcome of the proceeding could substantially affect the value of

the interest;

(iv) Ownership of government securities is a “financial interest” in the

issuer only if the outcome of the proceeding could substantially affect

the value of the securities.

(e) No justice, judge, or magistrate judge shall accept from the parties to the

proceeding a waiver of any ground for disqualification enumerated in subsection

(b). Where the ground for disqualification arises only under subsection (a), waiver

may be accepted provided it is preceded by a full disclosure on the record of the

basis for disqualification.

(f) Notwithstanding the preceding provisions of this section, if any justice, judge,

magistrate judge, or bankruptcy judge to whom a matter has been assigned would

be disqualified, after substantial judicial time has been devoted to the matter,

because of the appearance or discovery, after the matter was assigned to him or

her, that he or she individually or as a fiduciary, or his or her spouse or minor child

residing in his or her household, has a financial interest in a party (other than an

interest that could be substantially affected by the outcome), disqualification is not

required if the justice, judge, magistrate judge, bankruptcy judge, spouse or minor

child, as the case may be, divests himself or herself of the interest that provides the

grounds for the disqualification.

I. Summary

The two principal statutes dealing with judicial recusal are 28 U.S.C. § 144, “Bias or prejudice of judge,” and 28 U.S.C. § 455, “Disqualification of justice, judge, or magistrate.” The relationship between the two has been a source of some confusion. While section 455 substantially overlaps and subsumes section 144, there are some important differences. First, section 144 aims exclusively at actual bias or prejudice, whereas section 455 deals not only with actual bias as well as other specific conflicts of interest, but also with the appearance of partiality. Second, section 144 is triggered by a party’s affidavit, whereas section 455 not only may be invoked by motion but also requires judges to recuse sua sponte where ap propriate. Third, section 144 applies only to district judges while section 455 covers “any justice, judge, or magistrate of the United States.”

There is a third, little-noted recusal statute, 28 U.S.C. § 47, that applies only to appellate judges (or trial judges sitting by designa tion on appellate panels). This statute provides that “[n]o judge shall hear or determine an appeal from the decision of a case or issue tried by him,” thereby prohibiting a recently promoted ap pellate judge from hearing an appeal of a case that the judge tried.

28 U.S.C. § 144 Bias or prejudice of judge

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