Judicial Disqualification: An Invitation

The accused was convicted by a military judge sitting alone of several offenses. United States v. Rudometkin, No. 22-0105, 2022 WL 3364139 (C.A.A.F. Aug. 15, 2022). After learning that the military judge had been accused of conduct similar to at least one of the offenses of which he had been convicted, the accused filed a motion for a mistrial, alleging that the judge should have disqualified himself because his impartiality might reasonably be questioned. See R.C.M. 902(a).

A different military judge was detailed to conduct a hearing. He assumed, without deciding, that the trial judge should have disqualified himself and, employing the Supreme Court’s three-factor test from Liljeberg v. Health Servs. Acquisition Corp, 486 U.S. 847, 862 (1988), determined Appellant was not entitled to relief. Rudometkin, at *3.

In Liljeberg, the Supreme Court noted that the federal disqualification statute, 28 U.S.C. § 455, on which R.C.M. 902 is based, “neither prescribes nor prohibits any particular remedy for a violation of that duty.” 486 U.S. 847, 862 (1988). The Court recognized that Federal Rule of Civil Procedure (Fed. R. Civ. P.) 60(b)(6), “grants federal courts broad authority to relieve a party from a final judgment ‘upon such terms as are just.’” Id. Action under that Rule “should only be applied in extraordinary circumstances.” Id. at 863–64 (cleaned up).

In determining whether the judge’s error in refusing to disqualify was an extraordinary circumstance worthy of vacatur, the Supreme Court listed three factors for an appellate court to consider: (1) the risk of injustice to the parties; (2) the risk of injustice in other cases; and (3) “the risk of undermining the public’s confidence in the judicial process. We must continuously bear in mind that, to perform its high function in the best way justice must satisfy the appearance of justice.” Id. at 864.

Although the cases reviewed by the CAAF are criminal, rather than civil, it has applied the Supreme Court’s three-factor Liljeberg test in military judicial disqualification cases since at least 2001. See, e.g., United States v. Butcher, 56 M.J. 87, 91 (C.A.A.F. 2001).

The CAAF’s explanation of the first factor has transformed from a balancing of equities—the risk of injustice to the parties—to placing a burden on the accused to establish that he personally suffered an injustice from the judge’s failure to disqualify. See United States v. Martinez, 70 M.J. 154, 159 (C.A.A.F. 2011) (the first Liljeberg factor weighed against the appellant because “the record does not support nor has Martinez identified any specific injustice that he personally suffered under the circumstances”). In a more recent case, the CAAF substituted the Martinez finding on the first factor for the factor itself, claiming that the first Liljeberg factor “examines if there is ‘any specific injustice that [the accused] personally suffered.’” United States v. Uribe, 80 M.J. 442, 449 (C.A.A.F. 2021) (quoting Martinez, 70 M.J. at 159).

In Rudometkin, the certified issue before the CAAF was whether the military judge erred by failing to grant a mistrial because the trial judge failed to disqualify himself. Rudometkin, at *4. NIMJ filed an amicus brief pursuant to C.A.A.F. R. 26: an interested non-party amicus curiae brief that provides “relevant matter” not already brought to the attention of the Court of Appeals for the Armed Forces may be “of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.” CAAF R. 26(b).

NIMJ argued, inter alia, the Court should not, as it had in the past, apply the Supreme Court’s Liljeberg test for determining prejudice, because that test had been formulated for civil, not criminal, cases. NIMJ insisted the Court was instead required to apply Article 59(a), UCMJ: “[a] finding or sentence … may not be held incorrect on the ground of an error unless the error materially prejudice[d] the substantial rights of the accused.” In other words, the burden was on the Government to show the error was harmless.

The CAAF held that the military judge did not abuse his discretion in denying the accused’s motion for mistrial. It acknowledged and explained the amicus brief but declined to address NIMJ’s arguments because “the parties to the case have not challenged [our precedent].” Id. at *5. The Court cited two cases supporting that proposition: “United States v. Long, 81 M.J. 362, 370 (C.A.A.F. 2021) and FTC v. Phoebe Putney Health Sys., Inc., 568 U.S. 216, 226 n.4 (2013). Of course, there was no amicus curiae challenging the parties’ understanding of the law in Long and, in Phoebe, the amicus was not asking the Supreme Court to apply the law but to recognize an exception to the law and apply it to the case at hand. In Rudometkin, NIMJ was merely asking the CAAF to apply the law mandated by Congress in the UCMJ. And if the judges desired the parties’ inputs, they could have specified that issue and asked the parties to submit briefs. Instead of considering whether the error prejudiced the accused’s substantial rights under the statutory standard, the Court simply applied its precedents without resolving the underlying issue.
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By acknowledging NIMJ’s amicus brief and explaining its contents, the CAAF appears to be inviting litigation as to the appropriate standard for determining prejudice in judicial disqualification cases: Is prejudice in judicial disqualification cases determined by applying Article 59(a), UCMJ, or the three-factor Liljeberg test. On the other hand, the amicus brief put the issue squarely before the Court and, without even seeking the views of the parties, the CAAF punted—not exactly encouragement for those considering filing amicus briefs.