This article is about the legal definition of recusal. For recusal in academia, see Recusal (Academia).

Recusal refers to the sua sponte act of abstaining from participation in a court case due to a conflict of interest of the presiding court official. This makes fairness of trial less likely to be questioned.

Grounds for Recusal

If there is even a single ground for recusal a judge must recuse himself except in very limited circumstances. Recusal laws may vary by jurisdiction, but the following are nearly universal grounds for recusal.

• The Judge is related to a party, attorney, or spouse of either (usually) within three degrees of kinship.
• The Judge is a party.
• The Judge is a material witness unless pleading purporting to make the Judge a party is false (determined by presiding judge, but see Substitution (law)).
• Judge has previously acted as an attorney for a party.
• Judge prepared any legal instrument (such as a contract or will) whose validity or construction is at issue.
• Appellate Judge previously handled case as a Trial Judge.
• Judge has personal or financial interest in the outcome. This particular ground varies by jurisdiction. Some require recusal if there is any interest at all in the outcome, while others only require recusal if there "significant" interest.
• Judge determines he cannot act impartially.

Responsibility and Consequences

A Judge that has grounds to recuse himself should do so. If a judge does not know the grounds exist to recuse himself (but they do) the error is harmless.

If a Judge does not recuse himself when he should have known to he may be subject to sanctions that vary by jurisdiction.

Waiver and Substitution

The Recusal rule may be avoided or ignored if all parties and the Judge agree, although in practice this rarely occurs. If recusal is avoided in this manner a full and complete record of the facts that qualify as grounds, above, must be made for the appellate court.

If a judge fails to recuse himself sua sponte and a party believes the judge has a bias they may motion for substitution. In some jurisdictions litigants may have the right to substitute a judge even if there is no bias.

See also

• Substitution (law)

References

• Wis. Stat. sec. 757.19(2)
• Wis. SCR 60.04(4)
• State v. Asfoor, 75 Wis.2d 411, 436 (1977).