A federal judge in Little Rock who denied a recusal motion earlier this month in a civil lawsuit involving his former employer is on solid legal ground for continuing to sit in on the case, according to several legal experts, but opinions differed on how a reasonable person might interpret the judge’s action.
U.S. District Judge Lee Rudofsky, assigned to a civil lawsuit filed by the ACLU challenging the Arkansas Board of Apportionment’s new state House map alleging that it under-represents Black voters in the state, was asked by the plaintiffs in the case to recuse because of his past employment in the office of Arkansas Attorney General under Leslie Rutledge and past political support of Rutledge and Gov. Asa Hutchinson.
Along with Secretary of State John Thurston, Hutchinson and Rutledge sit on the three-member Board of Apportionment with the responsibility of drawing up new state House and Senate maps every 10 years following the Census count.
According to 28 U.S. Code § 4559(a), “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
The statute does not define “reasonably” and subsequent subsections of the law do not address the specific circumstances involved in the matter. Further down, 28 U.S. Code § 4559(b)(3) says, “Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy,” but Rudofsky’s employment with the attorney general’s office ended in 2018, and he has said the issue of redistricting never came up during his tenure.
In addition, a $1,000 campaign contribution he made to Rutledge and a $500 campaign contribution he made to Hutchinson were made in 2017 and 2018 respectively, and a campaign fundraiser Rudofsky hosted for Rutledge was done “at least three years ago” according to Rudofsky’s ruling.
APPORTIONMENT LAWSUIT
Last month, ACLU of Arkansas lawyers filed a lawsuit on behalf of Arkansas State Conference NAACP and Arkansas Public Policy Panel against the state Board of Apportionment alleging the House map approved by the board contains 11 majority-minority voting districts out of 100 districts statewide, despite the fact that according to the 2020 Census, of the 3,011,524 person who make up Arkansas’ population, 495,968 — 16.5% — are Black and another 425,000 — 15% — are members of other racial or ethnic groups. The effect of the redistricting of the House, the lawsuit says, is to dilute Black voting strength through the practice of gerrymandering in violation of Section 2 of the Voting Rights Act.
On Dec. 31, two days after filing the lawsuit, ACLU attorneys filed a motion asking that Rudofsky recuse himself on the grounds that his past political support of Hutchinson and his support and former employment with Rutledge could raise questions regarding his impartiality in the case. The motion did not accuse Rudofsky of bias but said the circumstances of the case could lead an informed, objective member of the public to “reasonably doubt Judge Rudofsky’s impartiality.”
In U.S. District Court, cases are randomly assigned to judges, all of whom keep a recusal list of potential conflicts of interest filed with the clerk’s office and publicly available online. In his order, Rudofsky said that he kept Rutledge on his recusal list for one year after he arrived on the federal bench as a “cooling off period,” and removed her from the list in September 2020.
In his order filed Jan. 5, Rudofsky said that recusal motions are serious matters rarely filed, “and I well recall from private practice the care and thought that attorneys give to such matters.”
He said the question implicates two critically important judicial obligations, the first of which is to avoid hearing cases in which a judge is partial to one side or the other, as well as to avoid any appearance of impartiality. The second obligation he said, is the obligation for a judge to hear cases to which he or she is assigned, known as “a duty to sit.” Rudofsky said unless a true need exists for a judge to recuse, that judge has a duty to sit and hear the case because recusal where it is not clearly legally required can incentivize “the unfair and unseemly tactic of judge shopping.”
Robert Steinbuch, a law professor with the University of Arkansas at Little Rock William H. Bowen School of Law, told the Arkansas Democrat-Gazette that the judge is on solid legal footing and any suggestion Rudofsky should recuse himself over routine interactions with community members, elected leaders, business leaders, or otherwise, would have serious implications for the entire judiciary.
Charles Geyh, a distinguished professor and John F. Kimberling Professor of Law with Indiana University Bloomington, told the Democrat-Gazette in an email Tuesday that while the ruling is consistent with legal precedent it could still conflict with public perception.
DUTY TO SIT
Richard Flamm, a Southern California attorney, law professor and legal consultant who has written extensively on judicial disqualification, agreed that Rudofsky is in accordance with legal precedent but he said the history of judicial interpretation of federal legislation has had the opposite effect of Congressional intent when laws were passed to place limits on the judiciary.
Flamm said the duty to sit doctrine referenced by Rudofsky was actually written out of the federal statute in 1974.
“Because judges had been using the duty to sit doctrine as an excuse to stay on cases they should probably get off of, Congress amended the statutory language to read that if reasonable person would question the ability of a judge to be on the case then the judge does not have a duty sit,” Flamm said. “Instead, the judge has a duty to recuse.”
According to the Villanova Law Review, Vol. 50, Issue 5 [2005], Article 5, there are differing opinions among the 12 federal circuits that encompass the nation’s 94 federal judicial districts since Congress acted to remove the duty to sit doctrine — which acts to discourage recusal in close cases — and changed the standard of review from the subjective opinion of the judge considering recusal to the objective standard of what a reasonable person might infer. Flamm said the 3rd Circuit, which is based in Philadelphia, has adhered most closely to the statute in cases of recusal.
“In most federal courts,” Flamm said, “they have either ignored the language in the statute or they’ve said in spite of it they still have a duty to sit.”
Flamm said the amendments to the statute Congress passed in 1974 were intended to clarify the language and make the process of disqualifying a judge more transparent while removing the onus from the judges themselves to subjectively analyze their own motives and to replace it with a more objective “reasonable person” standard of review. Even with that change in intent, however, Flamm said it is still the judges themselves who must determine what a “reasonable person” might deduce.
“The judges figure out ways to interpret what Congress did in such a way to read the Congressional intent out of the statute,” he said. “It’s mandatory to recuse when recusal is mandatory but if there’s no mandatory basis to recuse they have a duty to sit on the case so as not to burden other judges, inconvenience the parties, blah, blah, blah … So technically the judge is right even though that wasn’t what Congress wanted.”
Flamm said he did find it interesting that Rudofsky’s two campaign donations and a single fundraiser were cited as part of the reason for the motion calling for him to recuse.
“The more common concern with contributions is those that are made to a judge,” he said. “Not from a judge. So, that’s where the case law is.”
REASONABLE QUESTION
Geyh, in an email, said that the situation presents some irony in that the statute calls on judges to withdraw if their impartiality “might reasonably be questioned,” which he said is an issue that should be resolved from the perspective of a fully informed member of the general public and not a judge.
So public perception ought to matter,” he said. “In this case the judge was right to discuss the nature, limits, and duration of his relationship with the defendant. Although the judge and the defendant were political allies, the limited nature of that alliance, and the time that has passed since it ended, will properly affect the analysis of whether the judge and defendant are so close as to call the judge’s impartiality into question.”
Geyh said the issue to him presents a close enough case that were he in that position, he might have withdrawn, but he stopped short of saying he would have done so.
“As I noted at the outset,” he said, “the conclusion he reached is consistent with precedent.”
Steinbuch was unequivocal on the matter, saying that the judge had acted correctly and that a recusal in such a circumstance could have far reaching consequences.
“I think he’s on perfectly solid ground here,” he said. “Judges aren’t monks. They don’t live in monasteries … Judges are often involved in government and politics and that does not disqualify them from hearing cases they are not otherwise involved in.”
Steinbuch said any notion that judges should disqualify themselves over routine public interactions or because they have a political opinion would make it impossible for judges to do their jobs.
“People have the right to be involved in politics,” he said. “Everybody votes. By the logic if you were involved in politics you couldn’t function as a judge, that would have to be extended to everyone who votes.”
At a status conference earlier this month, Rudofsky said a hearing on a motion for a preliminary injunction in the matter is scheduled for Jan. 27 and could take as long as four days. Rudofsky has said he hopes to issue a ruling on the matter in early February, in advance of the filing period for the upcoming March primary elections.
If Rudofsky grants the preliminary injunction, the state will have to redraw the House map, although with the March 1 filing deadline just weeks away and the May 24 primary and nonpartisan general election coming up in just over four months, it was not clear what deadline the state will have to meet in redrawing the map.
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