Motions requesting recusal of an appellate judge are relatively rare. But as appellate cases become more and more about hot-button political issues, an increase in recusal motions at the appellate level is likely and perhaps already happening. For an appellate practitioner, it is important to understand the bases for judicial disqualification as well as what may happen if there is a recusal in an appellate court as the answers to these questions may factor into any strategic decision to move for recusal.

When is recusal on appeal required?

On occasion, the constitutional right to due process mandates recusal of a judge. Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009). Because “most matters relating to judicial disqualification [do] not rise to a constitutional level,” FTC v. Cement Institute, 333 U.S. 683, 702 (1948), “only in the most extreme cases would disqualification on this basis be constitutionally required.” Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821 (1986). Circumstances that have implicated due process concerns include cases in which (1) the judge has a direct pecuniary interest, (2) a court will be tempted to impose a fine because it benefits the judge or the judge’s governmental entity, (3) the judge was responsible for bringing criminal charges against the defendant or the judge is holding someone in contempt for a personal affront, or (4) one of the parties has made a contribution to the judge’s election campaign large enough to affect the outcome of the election, knowing the party’s case would come before the judge. Caperton, 556 U.S. at 877-87.

Absent a due process issue, a statute or rule usually controls whether a judge should be disqualified. In the federal system, judicial recusal is governed by 28 U.S.C. § 455. Under that statute, there are two categories of disqualification: (1) recusal in any proceeding in which “impartiality might be reasonably questioned”; and (2) recusal due to (a) actual bias or prejudice concerning a party, (b) financial interest, no matter how small, in a party, (c) service as a lawyer in the controversy while in private or governmental practice, or (d) having a spouse or child who is a party, lawyer, or witness in the matter. The first category of disqualification can be waived by the parties following full disclosure; the second category cannot.

Similar criteria for recusal exist in state systems. In my home state of North Carolina, for instance, the Code of Judicial Conduct provides that a judge should recuse upon the motion of a party, or on the judge’s own initiative, whenever the judge’s “impartiality may reasonably be questioned.” The rule then provides a non-exhaustive list of specific instances when recusal is appropriate that roughly mirrors the bases for recusal in the federal statute.

The messy question is what is meant by “impartiality [that] might reasonably be questioned.” Recusal rules generally permit the judge being asked to recuse to decide in the first instance whether disqualification is necessary. Some rules also provide that certain recusal motions should be referred to another judge for decision, usually if the taking of evidence might be required to resolve the question.

If an appellate judge refuses to recuse, what recourse is there? Unlike the refusal to recuse at the trial level, refusal of an appellate judge to recuse generally is subject to less review than the refusal of a trial judge. After all, review of an intermediate appellate court judge’s refusal to recuse may only be reviewable in an appeal–often discretionary in nature–to the highest court of the jurisdiction from a final decision of the intermediate appellate court in the case.

And what about the refusal to recuse by a justice of the highest court of a jurisdiction? What court will review that decision? Unless the refusal amounts to a due process violation, the United States Supreme Court is not going to intervene. But can the full court decide to involuntarily recuse one of its own?

These questions are brewing in North Carolina.

In NAACP v. Moore and Berger, the plaintiffs filed a lawsuit against two state legislators in their official capacities challenging a voter ID law and a state income tax cap. The plaintiffs contend the laws are unconstitutional because they were passed by a legislature with members elected from districts that a federal court ruled were unconstitutionally gerrymandered. The plaintiffs won at the trial level, but the North Carolina Court of Appeals reversed in a 2-1 decision. By virtue of the dissent at the intermediate appellate court, the plaintiffs appealed to the North Carolina Supreme Court. The plaintiffs then moved to recuse two of the seven members of the court, one because his father is one of the named defendants and the other because she was in the legislature when the laws in questions were enacted. In what would have to be considered a surprise move, the North Carolina Supreme Court subsequently entered an order requiring the parties to brief a number of issues related to recusal including whether the full court can order the involuntary recusal of its members.

It seems from the order entered by the North Carolina Supreme Court that it hopes to nail down some sticky questions about recusals. That is a laudable goal. In the end, one party or the other will be unhappy (as in most appellate decisions). And while the potential reasons for disqualification in the case may not fit the criteria for a due process violation, it would not be difficult to see the losing party seeking some sort of further review.

What is the effect of recusal?

What happens if there is a recusal at an appellate court?

At the trial level, disqualification of a judge means another judge will preside in the case. At an intermediate appellate court, typically sitting in panels, there usually is a another member of the court that can be substituted for a recused judge (but see below). At the highest court of a jurisdiction, usually sitting with all members, a recusal can become much more complicated.

The highest court of a jurisdiction normally will sit without a recused justice so long as there is the quorum necessary for the transaction of business. If more than one member of the highest court of the jurisdiction is recused, however, it becomes more interesting. If, for instance, both justices in the North Carolina case noted above are recused–voluntarily or involuntarily–does that mean the five remaining members can decide the case based on a majority vote of those remaining members? In North Carolina, at least, the answer is no. Regardless of how many justices are recused, four members of the seven-member court must rule one way or the other in order to constitute a decision of the court. Northwestern Bank v. Roseman, 319 N.C. 394, 395 (1987). If four justices do not agree, the lower court decision stands without precedential value. Id. In other words, the plaintiffs in the North Carolina case–having lost at the North Carolina Court of Appeals–will need at least four votes to reverse that decision regardless of how many members of the court ultimately sit for the case.

If there is not a quorum at the highest court of the jurisdiction due to multiple recusals, there is a danger that the issues before the court will go unanswered. As noted above, it usually is simple to substitute another member of an intermediate appellate court for one who is recused. In a recent case, however, all fifteen members of the Fourth Circuit Court of Appeals recused themselves. United States v. Roof, 10 F.4th 314 (4th Cir. 2021). Because judges in the federal system can sit by designation, three members of other circuit courts of appeals were designated for and ultimately decided the case. Id.

When there is not a quorum in the highest court of a jurisdiction, more drastic measures may be required. In yet another case from my home state, Lake v. State Health Plan for Teachers and State Employees, the plaintiff class members are challenging a law requiring government retirees to pay premiums for their health insurance. The plaintiff class prevailed at the trial level, but the North Carolina Court of Appeals reversed. Although the North Carolina Supreme Court granted review of that decision, it then disclosed that five of its seven justices have family members who are or could be members of the class.

Needing at least four justices to constitute a quorum, the North Carolina Supreme Court in Lake ultimately entered an order exercising the “Rule of Necessity” to permit all members of the court to hear the case. The “Rule of Necessity” is invoked when a judge has an interest in the outcome of a case but there is no provision for substitution of another judge. Noting that the rule dates back at least six hundred years and quoting the Supreme Court of Kansas, the United States Supreme Court has stated: “‘[It] is well established that actual disqualification of a member of a court of last resort will not excuse such member from performing his official duty if failure to do so would result in a denial of a litigant’s constitutional right to have a question, properly presented to such court, adjudicated.'” United States v. Will, 449 U.S. 200, 214 (1980) (quoting State ex rel. Mitchell v. Sage Stores Co., 143 P.2d 652, 656 (1943). Needless to say, that order likely pleased one side but not the other.

It is important to understand the bases for recusal and the possible ramifications of recusal in an appellate court. The North Carolina cases now pending highlight the difficulties in dealing with recusals at the highest appellate court of a jurisdiction. Perhaps the decisions in those cases will give some clarity.