When Should Judges Recuse Themselves in Divorce Proceedings?

December 20, 2013 | Court Decisions, Divorce, Legal Perspective

Icon for author Brian Vertz Brian Vertz

In a non-precedential opinion, the Superior Court of Pennsylvania recently considered the appeal of a husband who unsuccessfully requested a judge to recuse himself from a divorce proceeding over which he was presiding. The wife was a four-term county commissioner and Republican Party-backed candidate for statewide office, in a county that is heavily Republican. The husband in his appeal cited several rulings that he interpreted as favorable to the wife, although none were obviously biased or unfounded.

The Superior Court’s opinion discussed the standard for reviewing a judge’s decision to recuse or not recuse, which sets a very high bar:

This Court presumes judges of this Commonwealth are honorable, fair and competent and, when confronted with a recusal demand, have the ability to determine whether they can rule impartially and without prejudice. Commonwealth v. Druce, 848 A.2d 104, 109 (Pa. 2004). The party who asserts that a trial judge should recuse bears the burden of setting forth specific evidence of bias, prejudice, or unfairness. Commonwealth v. Harris, 979 A.2d 387, 392 (Pa. Super. 2009) (citations omitted).

“As with all questions of recusal, the jurist must first make a conscientious determination of his or her ability to assess the case in an impartial manner, free of personal bias or interest in the outcome. The jurist must then consider whether his or her continued involvement in the case creates an appearance of impropriety and/or would tend to undermine public confidence in the judiciary. This is a personal and unreviewable decision that only the jurist can make. Where a jurist rules that he or she can hear and dispose of a case fairly and without prejudice, that decision will not be overruled on appeal but for an abuse of discretion. ”

Rohm & Haas Co. v. Lin, 992 A.2d 132, 149 (Pa. Super. 2010), quoting Overland Enterprise, Inc. v. Gladstone Partners, LP, 950 A.2d 1015, 1021 (Pa. Super. 2008).

The Superior Court disagreed with Husband that the trial judge’s mere affiliation with the same political party, or the incidents that Husband cited in his brief, were sufficient to meet the high standard for overturning a judge’s decision not to recuse himself. While the “appearance of impropriety” may be a valid reason for recusal, the law still places the decision in the judge’s own hands as to whether there is an appearance of bias. It matters not whether one of the litigants believes there is an appearance of impropriety, unless the litigant can convince the judge that he or she appears to be biased.


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