A Maryland Guide to Judicial Recusal

By Derek M. Stikeleather

Recusal standards for appellate judges rarely trend on social media. But the recent nomination of Seventh Circuit Judge Amy Coney Barrett to the United States Supreme Court has spawned widespread popular debate over whether she should recuse herself from deciding any cases involving the results of the 2020 Presidential election. Regrettably, most media soundbites on the issue offer little more than partisan excerpts of her supporters saying that she should not recuse herself and her critics arguing that she should. Few delve into the controlling rules and standards.

Ultimately, a Justice Barrett recusal seems unlikely for one simple reason: At the Supreme Court, the recusal decision rests exclusively with the Justice herself and is not subject to further review. Thus, absent any unambiguous precedent that requires her recusal or a statement from Judge Barrett that she plans to recuse herself from election cases, she appears unlikely to do so.

While I have nothing special to add to the arguments for or against a potential Justice Barrett recusal, the uproar prompted me to look more closely at Maryland’s standards for recusing appellate judges. Here’s what I found:

The Controlling Ethical Rules for Maryland’s Appellate Judges?

Title 18 of the Maryland Rules contains the relevant rules of judicial ethics, including the Maryland Code of Judicial Conduct. Md. R. 18-100 et seq. The Code applies to all “Incumbent judges of the Court of Appeals, the Court of Special Appeals, the circuit courts, and the District Court.” Md. R 18-100.2(a). And the Judicial Ethics Committee, whose 13 members are appointed by the Chief Judge of the Court of Appeals (mostly drawn from active and retired judges on various Maryland courts) handles any revisions to the Code.

The Code’s highest goal is to preserve the rule of law by supporting an “independent, fair, competent, and impartial judiciary composed of men and women of integrity.” Md. R. 18-100.4(a). It “establishes standards for the ethical conduct of judges and judicial candidates” but “is not intended as an exhaustive guide for the conduct of judges and judicial candidates.” Md. R. 18-100.4(c). Besides generally guiding judges, it also provides “a basis for regulating their conduct through disciplinary agencies.” Id.

Avoiding the Appearance of Impropriety

Because true judicial authority rests on society’s confidence in the judiciary, the cornerstone of judicial ethics is judges’ avoidance of “both impropriety and the appearance of impropriety in their professional and personal lives.” Md. R. 18-100.4(b). Only by consistently upholding the “dignity of judicial office,” do judges ensure “the greatest possible public confidence in their independence, impartiality, integrity, and competence.” Id.

Maryland’s Code draws its first three rules, 18-101.1 through 18-101.3, directly from the ABA Model Code of Judicial Conduct, rules 1.1 through 1.3, which address judicial integrity and avoidance of impropriety. ABA Model Rule 1.2 directs that a “judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”

But what is the “appearance of impropriety” for an appellate judge? The ABA’s official commentary to Rule 1.2 explains that avoiding the appearance of impropriety “applies to both the professional and personal conduct of a judge” and that judges “should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens, and must accept the restrictions imposed by the Code.” Rule 1.2, cmt. 1-2. But it concedes that “it is not practicable to list all such conduct.” Id. cmt. 3.

Without further guidance, reasonable minds could draw vastly different conclusions on what appears improper for a judge. The official comments explain that the “test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.” Rule 1.2, cmt. 5. This is helpful—but still far from clear on what might create the mere appearance of impropriety.

More concrete guidance comes from the previously mentioned Maryland Judicial Ethics Committee, which maintains a webpage of judicial ethics opinions dating back to 1971. https://mdcourts.gov/ethics/opinions In most years since the Court adopted the Code of Judicial Ethics, the Committee has issued a half-dozen or more opinions to guide trial and appellate judges.

These opinions give Maryland judges some precise bright-line rules. Judges may NOT appear in an advertisement for a private elementary school (Op. 2019-31) or engage in the rideshare business (Op. 2018-03) or accept tickets to sit in the Governor’s Box at Orioles games (Op. 2017-12). But they may sponsor a public education program (Op. 2017-13), consent to a bar association commissioning the judge’s portrait upon retirement (Op. 2016-02) and participate in the “Ice Bucket Challenge”—but only under certain circumstances (Op. 2014-30). A few opinions focus directly on appellate ethics and provide, for example, that an appellate judge cannot review a case decided by a sibling (Op. 1985-02) and detail the circumstances under which an appellate judge can review a case involving a corporate appellant in which the judge owns or previously owned stock (Ops. 2011-19-20-21).

More important, the Committee allows any “State official in the Judicial Branch” to request an opinion “as to the proper interpretation of an ethics provision as applied to that State official,” and the Chief Judge of the Court of Appeals may request the proper interpretation of any ethics provision. https://mdcourts.gov/ethics/requestopinion While members of the general public cannot enlist the committee to issue written opinions on matters that interest them—and judges cannot request written opinions on the ethics of other judges—any judges (or other officials in the judicial branch) who want more clarity on how the controlling rules apply to their own professional or personal conduct should be able to get the answers they need to avoid falling into an ethical trap.

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