The rules of decorum struck back in an Alabama Court of Criminal Appeals Case. Most people know the old rule, “never discuss politics or religion in polite company.” Less well known and less elegant is “never should a judge ask a sworn, testifying witness how much money he contributed to the judge’s political opponent.” While talking politics or religion in polite company may get you disinvited from the next gathering, a judge who asks about political contributions to her opponents can necessitate recusal.
A judge can recuse themselves from a case and be replaced by another judge either on their own initiative or on the motion of a party. Judges typically have a lot of discretion on whether or not to step down from their cases, though the cannons of judicial ethics provide guidlines and occasionally provide hard and fast rules as to when recusal is not discretionary, but required. In Salvagio v. State, mandatory recusal was at issue.
Salvagio v. State is a contempt case that arose out of a lawyer’s testimony in another case. The lawyer had represented a defendant in a capital murder trial, and the lawyer was later called to testify as a witness in the ineffective assistance of counsel case brought by the defendant.
In the ineffective assistance case, the testifying lawyer was told a couple of times not to discuss the case with anyone else. The lawyer was acting purely as a witness, and the admonishment had been made to him and other witnesses so as not to affect their testimony. Despite the admonishment, the attorney discussed the case with people before he testified, and apparently during a break after some or all of his testimony. As a consequence of the lawyer’s failure to adhere to the judge’s instructions not to talk to other people about the trial, the judge issued an order asking him to show cause why he should not be held in contempt.
As part of the contempt proceedings, the lawyer asked that the judge recuse herself from the contempt proceedings against him. The recusal request arose out of the judge’s questions to the lawyer, under oath, during his testimony, about his support of her opponent in the last judicial election.
The judge asked the lawyer whether he contributed to her opponent, whether he was on her opponent’s campaign committee, and how much he had contributed to her opponent. The trial judge elicited from the lawyer that he had been somehow associated with her political opponent’s campaign, that he’d contributed $500 for her opponent’s election, and that the lawyer had contributed to her opponent in the previous election as well. The State of Alabama characterized the exchange as harmless “banter” – the Alabama Court of Criminal Appeals did not agree.
Not only did the judge’s questions to the lawyer make it advisable that she recuse, it made recusal mandatory. Where it is reasonable for members of the public or a party , or counsel to question the impartiality of the judge, recusal is required. Here, the appellate court found a clear duty to recuse from the contempt proceedings and allow another judge to conduct them.