Home -> Law Blog Directory -> Litigation Blogs -> How Appealing

Litigation

: How Appealing

When should an appellate judge recuse from deciding an appeal based on having served as a judge on the court that decided the case below?

When should an appellate judge recuse from deciding an appeal based on having served as a judge on the court that decided the case below? In early January 2008, two new Justices joined the Supreme Court of Pennsylvania from the Superior Court of Pennsylvania, which is one of the Commonwealth's two intermediate appellate courts. Even more recently, Pennsylvania Governor Edward G. Rendell nominated the former President Judge of the Commonwealth Court of Pennsylvania, the state's other intermediate appellate court, to fill the third and final vacancy on Pennsylvania's highest court.

Some legislators who will be able to vote on whether to confirm Governor Rendell's nominee have questioned the nomination on the ground that the nominee, having served on the Commonwealth Court, will need to recuse himself from too large a number of cases if allowed to serve on the Pa. Supreme Court. Ironically, during the campaign that culminated in elections to the Pa. Supreme Court in November 2007, I did not hear anyone oppose the three candidates from the Pa. Superior Court on the ground that they would need to recuse from too many cases if elected to Pennsylvania's highest court.

I think there is general agreement that if a judge is promoted from a trial court to an intermediate appellate court, that judge should not hear and decide appeals from orders that he or she entered as a trial judge.

If a judge is promoted from an intermediate appellate court to the highest court of a jurisdiction, however, the recusal inquiry becomes more complicated. I think there would continue to be general agreement that the judge, while serving on the jurisdiction's highest court, should not preside over appeals from rulings issued by panels on which he or she served while sitting on the intermediate appellate court.

But what if the judge in question did not serve on the three-judge intermediate appellate court panel that issued the decision under review but had the ability to vote for rehearing en banc when the losing party sought that relief before the intermediate appellate court? If the order denying rehearing en banc simply said that the requested relief was denied without identifying how any of the judges on the en banc court voted, I would not be of the view that a judge who merely considered a request for en banc rehearing while serving on the intermediate appellate court should be recused from hearing and deciding the case on the jurisdiction's highest court.

Some intermediate appellate courts, such as the Pa. Commonwealth Court and the U.S. Court of Appeals for the Third Circuit, circulate decisions that are proposed to be issued as precedential opinions to all active non-panel judges before the decisions are officially issued. This pre-release circulation allows non-panel judges to flag any inconsistencies with the court's earlier precedential rulings and other governing law, and also to call for pre-decision rehearing en banc in the event the proposed decision is objectionable enough. In such a jurisdiction, a non-panel judge has the ability to become intricately involved in a decision, totally hidden from the public's view. But I would not rely on that possibility as a reason to advocate that a judge who is promoted to the jurisdiction's highest court must recuse from considering any cases that resulted in precedential rulings of the intermediate appellate court before his or her promotion.

If readers of this blog have views on these issues, which I plan to address in an forthcoming installment of my monthly "Upon Further Review" column for The Legal Intelligencer of Philadelphia, I welcome hearing your thoughts via email.

It is also noteworthy that neither the Pa. Supreme Court nor the U.S. Supreme Court has any provision to allow temporary appointments from other courts to fill vacancies on a case-by-case basis in the event of recusals. By contrast, the highest courts of many other jurisdictions -- California and West Virginia come to mind most quickly -- maintain a full complement of judges even in cases where some members of the court have recused by replacing the recused judges with judges from lower courts. Is it better to have a system where recused judges of a jurisdiction's highest court can be replaced by judges serving on an intermediate appellate court? Views on this subject are also welcome via email. Thanks!

Full post as published by How Appealing on February 06, 2008 (boomark / email).