2021-1: Judge’s duty to recuse following unsolicited ex parte communication

IJEC Opinion No. 2021-1

TOPIC:  A judge’s receipt of an unsolicited ex parte communication from a litigant.

DIGEST:  A judge is not generally required to recuse from hearing a case in which a litigant initiates an unsolicited ex parte communication with the judge. If the judge halts the communication as soon as possible, disregards it, and promptly advises all parties that is has occurred, recusal is not required.

REFERENCES: Illinois Supreme Court Rules 63A(5), 63C(1); In re Marriage of O'Brien, 2011 IL 109039, 958 N.E.2d 647; In Interest of Williams, 36 Ill. App. 3d 917, 344 N.E.2d 745, (1st Dist. 1976); People v. Bradshaw, 171 Ill.App.3d 971, 525 N.E.2d 1098 (1st Dist. 1988); People v. Musso, 227 Ill. App. 3d 514, 592 N.E.2d 145 (1st Dist. 1992); In Re Marriage of Wheatley, 297 Ill.App.2d 854, 697 N.E.2d 938 (5th District 1998); In Re Marriage of Hartian, 222 Ill.App.3d 566, 584 N.E.2d 245, (1st Dist. 1991); IJEC Op. No. 95-5; Gray, C., After an Ex Parte Communication, Judicial Conduct Reporter, Vol. 26, No. 2 (Summer 2004); ABA Model Rules of Judicial Conduct 2.9(B).

 

FACTS:  In order to schedule virtual hearings, a judge communicated by email with the attorney for one party and the self-represented litigant on the opposing side.  Having learned the judge’s email address, the self-represented litigant later communicated extensive and substantive information about the case in an email directly to the judge; opposing counsel was not copied on the communication.  The information conveyed related to an upcoming hearing scheduled before the judge.  The judge believes the improperly communicated information can be disregarded without affecting the decision in the upcoming matter.  The judge immediately notified the other party of the communication.

QUESTION:  After receiving a substantive, unsolicited communication from a litigant ex parte, is the judge disqualified from hearing the case and required to recuse?

OPINION:  Rule 63A(5) of the Illinois Canons of Judicial Ethics provides that a “judge shall not initiate, permit, or consider ex parte communications made to the judge outside the presence of the parties concerning a pending or impending proceeding.”  There are certain exceptions to this prohibition not pertinent here.  For example, a judge may engage in ex parte communications for scheduling purposes so long as the judge believes no party will attain a tactical advantage as a result. 

The communication from the self-represented litigant at issue here was clearly “concerning a pending or impending proceeding,” so it would be a violation of Rule 63A(5) for the judge to “consider” the information conveyed in the email.  The question presented here, however, is whether the judge can still hear the matter, or whether recusal is required.

Disclosing the ex parte communication.

Before addressing whether the judge receiving the ex parte communication must recuse, the first step for the judge is to ensure that the ex parte communication is disclosed to the other party.  The rules would require this for a permitted communication (Supreme Court Rule 63A(5)(a)(ii)); surely the significance of an impermissible ex parte communication is even greater.   Note that, though not specifically applicable in Illinois, Rule 2.9(B) of the ABA Model Rules of Judicial Conduct requires a judge to “promptly” notify the parties if the judge “inadvertently receives an ex parte communication bearing on the substance of the matter.”  ABA Model Rules of Judicial Conduct, Rule 2.9(B). 

In this respect, an ex parte communication received via email makes possible a verbatim disclosure of the communication.  This diminishes the opposing party’s concern about whether it knows the full substance of the communication made to the judge.

Did the communication create actual bias in the judge?

The next consideration is whether, as a result of the ex parte communication, the judge’s neutrality has been affected; in other words, has the judge become actually biased based on what was learned?  This would, of course, require recusal.  Supreme Court Rule 63C(1)(a).  Here, the inquiring judge did not feel that receipt of the communication affected their neutrality.  It would be unusual for a judge to be unable to compartmentalize admissible information from that which is inadmissible.  In fact, in a bench trial, a judge “is presumed to recognize incompetent evidence and disregard it.”  In Interest of Williams, 36 Ill. App. 3d 917, 922, 344 N.E.2d 745, 749 (1st Dist. 1976).

Disqualification/Recusal.

Even if the judge harbors no actual bias as result of the ex parte communication, the general rule on disqualification states that recusal is required “in a proceeding in which the judge’s impartiality might reasonably be questioned.”  Supreme Court Rule 63C(1).  This concept was explored in People v. Bradshaw, 171 Ill.App.3d 971, 525 N.E.2d 1098 (1st Dist. 1988), where the judge invited a deputy sheriff into chambers after receiving a note saying that she wished to speak with him.  Upon learning that the deputy was also the mother of the victim in the case he was trying, the judge terminated the conversation.  The judge did not, however, immediately disclose the communication to the parties in the case, nor did he recuse himself.  A motion for substitution of judge for cause was referred to a second judge, who denied it.

The Appellate Court concluded that the first judge should have recused himself; if that didn’t occur, the second judge should have granted the motion for substitution of judge:

[T]he record does not evince that immediately following the ex parte communication the judge informed the parties that an ex parte communication had taken place. To the contrary, this communication was not made a part of the record until Bradshaw made a motion for substitution of judges based upon information he received from witnesses that an ex parte communication had taken place.

The judiciary is bound to maintain a favorable public impression that all defendants receive impartial trials and that justice is administered fairly. This obligation to our system of justice remains steadfast even though a judge is unequivocally sure that he is not partial to either litigant in a case pending before the court. Our commitment to the principle that justice is administered fairly binds us to hold that when an officer of the court is related to one of the parties before the court, and that officer engages in such conduct as passing notes to the presiding judge and immediately thereafter enters into the judge's chambers with that judge, an appearance of impropriety has been created such that the judge must recuse himself.

In reaching this conclusion, we do not imply that any improper motive existed on the part of the trial judge. What we do recognize, however, is that it is both the right of a defendant to have a trial before an impartial tribunal as well as the duty of a court to avoid any appearance of impropriety. We therefore conclude that based upon these facts, Bradshaw's motion for substitution of judges should have been granted and Bradshaw and Hines are entitled to a new trial.

Bradshaw, 171 Ill.App.3d at 976–77, 525 N.E.2d at 1101.

It appears that the trial judge’s failure to promptly disclose the ex parte communication played a role in the Appellate Court’s analysis, and it is unclear whether the outcome would have been different had prompt disclosure been made.  Bradshaw has also been distinguished on the fact that it was “the judge himself” who created the appearance of impropriety, presumably because he invited the deputy into chambers.  People v. Musso, 227 Ill. App. 3d 514, 517, 592 N.E.2d 145, 147 (1st Dist. 1992).

The soundness of the Bradshaw analysis has been called into question by the Illinois Supreme Court:

The problem with this analysis is that it fails to acknowledge that it was the second judge who, after a hearing, ruled specifically on the question of the trial judge's impartiality, not the trial judge himself. Indeed, the appellate court opinion interchanged the concepts of recusal and of substitution throughout its opinion, which indicates that the court construed the criminal substitution of judge statute (now codified at 725 ILCS 5/114–5, but not cited in the appellate court's opinion) in tandem with the Judicial Code. The court did this without citation to any legal authority.  Bradshaw therefore does not completely answer the question of whether for-cause substitution includes the appearance of impropriety standard.

In re Marriage of O'Brien, 2011 IL 109039, ¶¶ 36-37, 958 N.E.2d 647, 656–57.

Another Illinois case which explores the consequences of an ex parte communication is In Re Marriage of Wheatley, 297 Ill.App.2d 854, 697 N.E.2d 938 (5th District 1998).  Two days prior to a contested custody hearing, the judge in Wheatley received a letter from a former United States Congressman.  Upon realizing the letter pertained to the case pending before him, the judge did not continue to read the letter; he put it back in its envelope and left it on his desk.  After the trial, the judge was preparing the order in his case and rediscovered the letter -- which he had forgotten about.  The judge disclosed the letter and its contents to the parties at the same time as he announced his decision.  The Appellate Court held that the judge should not have continued to hear the case under these circumstances:

In the instant case, there is no dispute that the trial judge did receive an improper ex parte communication which was designed and intended to influence his decision of the case. The trial judge maintains that he did not read the letter, that he is unaware of its contents, and that it did not influence his decision in the case. However, it is not the mere receipt of the improper communication which creates the appearance of impropriety. The trial judge did not disclose the receipt of this improper communication but kept it in his office on his desk during the trial of the matter, during his deliberations on the case, and while drafting his judgment on the case. Upon announcing that decision, the trial judge also disclosed his receipt of the improper communication. This appearance of impropriety is bolstered by the purported identity of the sender of the letter (a former United States congressman), its adamant and strident pleas on behalf of the mother, and the fact that the mother was granted custody despite the fact that both the guardian ad litem and the home-study report recommended custody in the father. It matters not whether the trial judge was in fact prejudiced or biased by the letter he received. It is the appearance that he was so prejudiced or biased which mandates that his judgment be vacated and that the matter be remanded for a new trial before a judge who has not read the letter.

Wheatley, 297 Ill.App.3d at 858, 697 N.E.2d at 941.

Perhaps most significant is Wheatley’s suggestion that recusal might not have been required if the judge had made immediate disclosure of the ex parte communication:

We wish to address the concern expressed by the trial court that vacating his decision and recusing himself from the cause might lead others to believe that they could effect a substitution of a judge merely by sending him or her an ex parte letter. As we have stated, it is not the mere receipt of the letter which creates the appearance of impropriety. If the judge refuses to read or consider the letter and, as soon as practicable, discloses it to the parties, an appearance of impropriety may be avoided. We find only that, under the totality of the circumstances as uniquely presented in this case, an appearance of impropriety was created, and the trial judge should have, upon petitioner's motion, vacated his decision and recused himself from further consideration of the case.

In re Marriage of Wheatley, 297 Ill. App. 3d 854, 859, 697 N.E.2d 938, 941 (5th Dist. 1998).  In commenting on Wheatley, the Illinois Supreme Court has noted the significance of the judge’s failure to disclose the communication until he had made his decision in the case; the Court also noted that the Wheatley opinion “did not cite to the provisions of the Judicial Code.”  In re Marriage of O'Brien, 2011 IL 109039, ¶¶ 38-39.

To the extent that Bradshaw or Wheatley suggest the existence of a general rule, it may be helpful to frame the rule by reference to two factors which were absent from those cases: shutting down the ex parte communication when it is recognized, and prompt disclosure of the communication to the other side.  Wheatley in particularsuggests that “mere receipt” of the ex parte communication does not require the judge to recuse.  This is in harmony with the Illinois rule specifically addressing ex parte communications, which provides that a judge shall not “initiate, permit, or consider” such communications.  Illinois Supreme Court Rule 63A(5).  A judge receiving an unsolicited ex parte communication does not necessarily do any of those things.

In fact, the Illinois Rule against ex parte communications does not specifically address recusal; that topic is addressed under the general provision which requires recusal when “the judge’s impartiality might reasonably be questioned.”   Illinois Supreme Court Rule 63C(1), emphasis added.  A judge’s initiation of an ex parte communication might create concerns about the judge’s impartiality, but the same is not true when some other person initiates the communication.  The action of another does not implicitly create any inference about the judge’s impartiality.

Furthermore, it has been observed that a “contrary rule would allow a party to remove a judge from a case by initiating an ex parte contact, which would encourage unethical ploys and allow manipulation of the judicial process.”  Gray, C., After an Ex Parte Communication, Judicial Conduct Reporter, Vol. 26, No. 2 (Summer 2004).  Instead, recusal or disqualification should be required only “if additional circumstances give rise to an appearance of bias,” such as the “judge’s initiation of an ex parte communication.”  Id.  Cf. In Re Marriage of Hartian, 222 Ill.App.3d 566, 569, 584 N.E.2d 245, 247 (1st Dist. 1991) (warning against “a dangerous precedent whereby those seeking [a different judge] need only file charges with the Judicial Inquiry Board to achieve that purpose”); IJEC Op. No. 95-5 (concern about enabling a party to force disqualification supports conclusion that judge is not disqualified from hearing a case involving a lawyer who has filed ethics charges against the judge relating to that case).

CONCLUSION:  a judge who receives an unsolicited ex parte communication, terminates it as soon as possible, and immediately discloses it to the parties is not required to recuse from hearing the case. Judges may still wish to insulate themselves, to the extent possible, from such communications, such as by issuing a standing order to make clear to non-lawyers that such communications are not allowed.