Vail Daily column: Understanding recusal

I went to law school in southern California. Not surprisingly, so did my law school classmates, every one. Southern California being… well… southern California, most of them stayed there after law school and hung out their shingles. Even most of the hardened New Yorkers and Jerseyites who claimed they would never, ever stay in the land of fruits and nuts ultimately did. Only two of us, so far as I know, ventured to the Colorado Rockies. And one of them—the one other than me — is now a judge, and a respected one at that.

I’ll come back to that in a moment.

A couple of years ago, I had a case before another well-regarded judge, a different judge than my law school mate. Before he was a judge, this particular judge once worked as a government attorney. And as happenstance would have it, the defendant in the particular case to which I am referring once worked in the same small office as the judge before he was a judge. They knew each other casually and when Christmases and other celebrations came around, the officemates gathered in one person or another’s home to lift a glass of wassail and otherwise ring in whatever holiday was up on the roulette wheel of the calendar. I am told the celebrations were convivial.

Although the second judge did not know the person who would one day become the defendant in a case in which I was representing the plaintiff all that well, in their past lives, they had known each other on a first-name basis and, at holiday time, had spent time together in each other’s homes.

The thing was this…

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When the person who was to become the defendant in fact became a defendant, the lawsuit landed in the former officemate-cum-judge’s courtroom.

You might be thinking, “Well hooray for her. By a stroke of luck, the defendant scored a home field advantage.”

But not so much.

Let me explain how the two stories are related.

In the first — the one in which my classmate was a judge—although we had not seen or spoken to each other in more than thirty years, he recognized my name immediately. With opposing counsel on the phone, he asked me if I was who I was and I confessed immediately that I was. Then he laid out to opposing counsel that the judge and I had been classmates in law school and, although we had not seen or spoken to each other in thirty years, he wanted to make sure that opposing counsel was aware of that fact and to make sure that the other lawyer did not consider our association a conflict.

The judge went on to say, “It has been so long since I have seen Mr. Robbins that I am not sure, unless he looks exactly like he did in 1984 that I would even recognize him.”

I assured him that time had, in fact, been kind and I looked precisely as I did the year we graduated law school.

The judge went on, directing himself to the other lawyer. “If you consider this a conflict, you do not have to move for recusal. I will immediately recuse myself.”

The other lawyer — who seemed a nice fellow — replied with a hearty “nah.”

In the second matter, the judge offered up that he and the defendant had once worked in the same office and at Christmastime and other holidays had celebrated office parties in each other’s homes. Like the first judge, he offered to recuse himself if either party considered their past association a potential conflict. Although he offered to recuse himself, when we took him up on this offer, the other side objected and so we filed a motion to recuse the judge, which he ultimately granted. A brand spanking new judge took over the case and the defendant’s home field advantage disappeared.

Now you’ll note I’ve been slinging around the word “recusal” like a short-order cook slinging hash browns in a diner. And as that word seems to be the key to what I’m going on about, perhaps I should define it.

“Recuse” simply means judicial disqualification. It refers to the act of abstaining from participation in an official action such as a legal proceeding due to a conflict of interest of the presiding court official or administrative officer. To recuse oneself is to step aside because of conflict or, often, because of the mere appearance of conflict. To be recused is to have one’s partiality challenged and for it to be determined that to make the playing field of litigation level for all, ‘tis best to have another judge hear the particular dispute.

At its core, recusal is the enactment of the metaphor of Lady Justice who shall be blind and even-handed as she the weighs the scales of justice.

Usually, if a judge recognizes the potential for a conflict of interest, he or she will step aside or, if a potential conflict is brought to the judge’s attention — and the potential conflict is real rather than a litigation tactic — the judge will graciously pass the case to another jurist. Once in a while, the potential conflict must be subjected to deeper scrutiny and a motion must be brought and ruled on regarding the issue.

At the end of the day, fairness before the law must be unquestioned and recusal is but one device to assure so.

In the two stories above, though the outcome of recusal was different, the result was the same. One judge did not recuse himself and justice was administered without a prejudicial hiccough. In the other, the judge graciously stepped down, and the interests of impartiality were fully, fairly and transparently served.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 and at either of his email addresses, and

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