Chicago Legal Malpractice Lawyer Blog
In this matter, a typical drug prosecution, the record reflected that county prosecutors supported the reelection campaign of a judge. Did that support create an obligation, on the part of the judge, to recuse himself from cases in which those lawyers appeared?
The trial court and the Indiana Court of Appeals held that there was no duty to recuse.
The lawyer for the defendant argued that the prosecutor’s support for the judge’s reelection campaign created an appearance of impropriety. The Indiana Court of Appeals disagreed. The court distinguished a prior case in which it had held that a judge was required to recuse himself because of an unusually close relationship to one of the lawyers.
It reasoned as follows:
Both parties discuss Bloomington Magazine, Inc. v. Kiang, 961 N.E.2d 61 (Ind. Ct. App. 2012). In that case, Bloomington Magazine, Inc. and Mark Kiang d/b/a Mikado Restaurant, Sunbeam Corp., and Truffles 56 Degrees, Inc. (“Mikado” and “Truffles,” respectively, and collectively, “Kiang”), executed two agreements to place advertisements in the magazine for both Mikado and Truffles. 961 N.E.2d at 62. When a dispute as to payment arose, Bloomington Magazine filed claims on December 19, 2008, seeking damages. Id. On February 17, 2009, Attorney Geoffrey Grodner entered an appearance on behalf of Kiang. Id. On January 4, 2010, the court issued an order finding in favor of Kiang and against Bloomington Magazine. Id. Bloomington Magazine ultimately filed a Motion to Set Aside which asserted that the owner and publisher of the magazine discovered that counsel for Kiang, Grodner, served as Chair for Judge Haughton’s campaign committee for the 2008 elections and that the relationship between the judge and opposing counsel was of the type of information that can reasonably be considered relevant to a possible motion for disqualification. Id. at 62-63. Bloomington Magazine also filed a motion to recuse. Id. at 63. The trial court denied Bloomington Magazine’s motions. Id.
On appeal, we held that the mere appearance of bias and partiality may require recusal if an objective person, knowledgeable of all the circumstances, would have a rational basis for doubting the judge’s impartiality. Id. at 64 (citing Patterson v. State, 926 N.E.2d 90, 94 (Ind. Ct. App. 2010)).[1] We found that the professional relationship between Judge Haughton and Attorney Grodner, in which Grodner served as the chairman of Judge Haughton’s 2008 election committee, was not so remote in time so as to dispel the appearance of an impropriety such that a reasonable person would have a rational basis for doubting her impartiality. Id. at 66. We found particularly relevant that Grodner’s appearance in the matter was filed in February 2009, which was three months following the election at issue. Id.at 66-67. Despite the fact that the Motion to Recuse was filed in August 2010, that motion requested recusal from a Trial Rule 60(B) hearing concerning Judge Haughton’s failure to recuse herself from a hearing taking place months earlier, in November 2009, at which Attorney Grodner had represented Kiang. Id. at 67. We observed that the chronological case summary revealed that following the filing of his appearance and leading up to the bench trial, Grodner filed documents in the matter in Judge Haughton’s court in March, April, June, and August 2009. Id. We also noted that the Motion to Recuse itself was filed within two years of the 2008 election. Id. We remanded for a hearing on Bloomington Magazine’s Motion to Set Aside to be heard by a special judge in accordance with Ind. Trial Rule 79. Id.
Unlike in Bloomington Magazine in which Attorney Grodner served as the chairman of Judge Haughton’s election committee, the elected prosecutor was not the chairman and had yet to perform any election committee activities on behalf of Judge Menges at the time of the article. Moreover, Judge Menges took judicial notice that Abney’s counsel was a deputy public defender and that the Chief Public Defender and his Chief Deputy were partners of Abney’s counsel in his private practice of law and that both of them “agreed to serve in exactly the same role that [the elected prosecuting attorney] has, as willing to publically [sic] endorse my candidacy” and that “we have both sides supporting my candidacy or at least the relationship, the higher parties, if you will, from both sides are supporting my candidacy. . . .” Transcript at 13. Under the circumstances, we cannot say that an objective person, knowledgeable of all the circumstances, would have a rational basis for doubting the judge’s impartiality or that the trial court erred.
Comment: this is a recurring issue in a political world where judges are required to run for reelection every few years. To run for reelection the judge has to raise money and get endorsements. The realities of politics require the judge to ask some of the lawyers in his or her courtroom to endorse him. Whether that practice is a good one is open to question. Here, the Court of Appeals held that the endorsement of the prosecutors was insufficient to require the trial judge to recuse himself in a criminal trial.
Source: Abney v. State, Ind: Court of Appeals 2017 – Google Scholar