BJS Formal Advisory Opinion 2025-1

Accessible document transcript

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MINNESOTA BOARD ON JUDICIAL STANDARDS
Formal Advisory Opinion 2025-1
Judicial Disqualification Issues Arising from Party’s or Attorney’s Actions:
Should I Stay or Should I Go 1
This opinion concerns disqualification issues where the potential grounds are created by a party or
attorney rather than the judge.2
A judge must recuse if there is an appearance of partiality. At the same time, litigants and attorneys
should not be permitted to use lawsuits against the judge, threats, or other conduct as a strategy to
disrupt the proceedings or replace a judge based on dissatisfaction with the judge’s rulings.
General Principles
Standards. Judicial recusal is addressed in Rule 2.11 of the Rules of Judicial Conduct. It is
important to distinguish three fact situations addressed in the rule:
• The judge has a personal bias or prejudice concerning a party or a party ’s lawyer .
Rule 2.11(A)(1). This is determined by a s ubjective test for actual bias and requires
recusal. Such a conflict is not waivable by the parties.
• The judge’s impartiality might reasonably be questioned. Rule 2.11(A). This is determined
by an objective test for the appearance of bias and requires recusal unless the parties and
their attorneys formally waive the conflict under Rule 2.11(C).
• The judge believes there is no basis for disqualification, but the judge has information that
the parties or their lawyers might reasonably consider relevant to a possible motion for
disqualification. Rule 2.11, c mt 5. The j udge s hould disclose this information on the
record.
Recusal may also be required by the due process clause, but in most cases it is unnecessary to rely
on a constitutional analysis to resolve a recusal question. “Because the codes of judicial conduct
provide more protection than due process requires, most disputes over disqualification will be
resolved without resort to the Constitution.” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 890
(2009) (discussed in part 5, infra).

1 The Clash (1984).

2 The Board on Judicial Standards has authority to issue opinions under Rule 2(a)(2) of the Rules of the
Board on Judicial Standards: “The board, and as delegated by the board, the executive secretary, may
issue advisory opinions on proper judicial conduct with respect to the provisions of the Code of Judicial
Conduct. . . . The advisory opinion shall not be binding on the hearing panel or the Supreme Court in the
exercise of their judicial-discipline responsibilities.”

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Advisory Opinion 2025-1 2

Distinction between waiver and failure to seek removal. Judges sometimes disclose a potential
conflict and attempt to put the burden on the litigants to object or remain silent. This procedure
should not be used if there are proper grounds for recusal. A litigant’s failure to object or to move
for disqualification following disclosure is not the equivalent of a waiver under Rule 2.11(C) and
does not exempt the judge from the ethical requirement of sua sponte recusal when proper grounds
exist. “A judge’s obligation not to hear or decide matters in which disqualification is required
applies regardless of whether a motion to disqualify is filed.” Rule 2.11, cmt. 2.
At the same time, if a party knows of proper grounds for disqualification, the party should seek
removal of the judge as soon as the party becomes aware of them. A party who bides their time
may face a heavier burden on appeal.3 The Judicial Code is not intended to be used by litigants to
obtain tactical advantages in court proceedings. Minn. Code of Judicial Conduct, Scope.
Importance of disclosure. The use of the word “should” rather than “shall” in Comment 5
indicates that where there are not proper grounds for recusal, disclosure “is committed to the
personal and professional discretion of the judge . . . in question, and no disciplinary action should
be taken for action or inaction within the bounds of such discretion. ” Minn. Code of Judicial
Conduct, Scope; see In re Jacobs, 802 N.W.2d 748, 754 (Minn. 2011) (“A failure to disclose is not
likely to create an appearance of partiality where, as here, the fact of his spouse ’s employment
does not require disqualification.”).
Nevertheless, disclosure serves important goals. Litigants and their attorney s should not feel
obligated to investigate a judge’s private affairs and financial matters. American Textile Mfrs.
Institute v. The Limited, 190 F.3d 729, 742 (6th Cir. 1999); Ex parte Ellis, 275 S.W.3d 109, 1 36
(Tex. Ct. App. 2008). Disclosure promotes the appearance of impartiality by showing that the
judge is not concealing arguably relevant information.4 Timely disclosure can avoid the waste of
resources that results when the judge is disqualified after the judge and the parties have invested
resources on the case . Disclosure can increase the likelihood of a correct result by allowing
litigants the opportunity to present facts and argument before the judge makes a final decision as

3 See Baskerville v. Baskerville, 246 Minn. 496, 501, 75 N.W.2d 762, 766 (1956) (“[D]efendant went to trial
without taking any affirmative action whatever to disqualify the substituted judge for bias, and she is now
in no position to complain. ”); State v. Finch, 865 N.W. 2d 696, 70 5 n.3 (Minn. 2015) ( “[W]e encourage
litigants to use the procedure outlined in Minn. R. Crim. P. 26.03, subd. 14(3), and make motions to remove
for cause at the district court . Otherwise, an appeal will be decided based on the plain -error standard.”);
United States v. Kelly, 888 F.2d 732, 746 (11th Cir. 1989) (observing that a party should not lie in wait,
knowing facts supporting a recusal claim, and seek disqualification only after the court ’s ruling on the
merits).

4 See Liljeberg v. Health Services Acquisition Corp ., 486 U.S. 847, 866 (1988) (“A full disclosure [when
the judge learned of the conflict] would have completely removed any basis for questioning the judge ’s
impartiality . . . .”); Desnick v. Mast, 249 N.W.2d 878, 882 -83 (Minn. 1976) (“It would, of course, have
been preferable for Judge Segell to have disclosed this relationship [with party’s attorney] to all
counsel . . . .”).

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to disqualification. If there is a non-frivolous argument in favor of recusal but the judge reasonably
believes that recusal is not required, the judge should disclose the relevant information.
The extrajudicial source doctrine. Except in rare instances, a judge may not be disqualified
unless the alleged partiality arises from an extrajudicial source. “[O]pinions formed by the judge
on the basis of facts introduced or events occurring in the course of the current proceedings, or of
prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a
deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky v. United
States, 510 U.S. 540, 555 (1994). A contrary rule would make eve ry judicial ruling potential
evidence of bias against the losing party. The extrajudicial source doctrine applies both to claims
of appearance of bias and to claims of actual bias against a party or attorney. Greer v. State, 673
N.W. 2d 151 (Minn. 2004); Richard E. Flamm, Recusal and Disqualification of Judges 195 (3d
ed. 2017). This doctrine applies to knowledge the judge properly learns from court proceedings,
not to knowledge the judge improperly learns from their own investigation into factual matters
before the court. State v. Dorsey, 701 NW 2d 238 (Minn: 2005).
Actual bias. The first step in th e consideration of a recusal question is for the judge to decide
whether they are actually biased against a party or their attorney. (Under the extrajudicial source
doctrine, “bias” usually does not mean negative opinions formed d uring proceedings before the
judge.) If the judge decides they have actual bias, no further analysis is necessary, and the judge
must recuse. If the judge decides they do not have actual bias , the judge is to consider whether
their impartiality might reasonably be questioned on other grounds.5
The duty to recuse vs. the responsibility to decide. The duty to recuse under Rule 2.11 (requiring
recusal whenever the judge ’s impartiality “might” reasonably be questioned) contrasts with the
responsibility to decide under Rule 2.7 (“A judge shall hear and decide matters assigned to the
judge, except when disqualification is required by Rule 2.11 or other law.”). Rule 2.7 does not
create a presumption against recusal . In fact, many courts and commentators believe that close
questions should be resolved in favor of recusal. 6 However, if there are not proper grounds for

5 A peculiarity of Rule 2.11(A) is that “personal bias or prejudice,” a subjective matter, is categorized as
one of the circumstances “in which the judge’s impartiality might reasonably be questioned,” an objective
matter. In contrast, in the federal disqualification statute, subjective bias and the appearance of partiality
are separate categories. 28 U.S.C. §455 (a) & (b)(1) . The difference in categorization holds no legal
significance for present purposes. Charles Gardner Geyh, Judicial Disqualification, An Analysis of Federal
Law (3d ed..2020) 14-15.

6 “[T]he better view is that for public confidence in the judicial system, the ‘appearance of partiality’ is
more important than the judge’s duty to sit and decide a specific case.” Leslie W. Abramson, What Every
Judge Should Know about the Appearance of Impartiality, 79 Alb. L. Rev. 1579, 1587 (2016). A number
of federal circuit courts have stated that if disqualification is a close call, “the balance tips in favor of
recusal.” See In re Reassignment of Cases, 736 F.3d 118, 124 (2nd Cir. 2013); U.S. v. Holland, 519 F.3d
909, 912 (9th Cir. 2008). “The purpose of [Model Rule 2.7] and the accompanying Comment is not to
resurrect a ‘duty to sit’ that trumps disqualification rules, but simply to emphasize that judges have a duty

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recusal, the judge may not recuse. A litigant’s dissatisfaction with the judge’s rulings, declaration
that a judge is partial, or subjective belief is not sufficient to warrant recusal. See State v. Burrell,
743 NW 2d 596, 601-02 (Minn. 2008). See also United States v. Cooley, 1 F.3d 985, 993-94 (10th
Cir. 1993) (listing matters not ordinarily sufficient to require recusal).
Applicability of civil and criminal opinions to Minnesota judicial ethics proceedings. Most
reported disqualification issues are discussed in civil and criminal cases rather than in disciplinary
proceedings. These cases are helpful, but their applicability to matters before the Board on Judicial
Standards can be limited by standards of review that differ according to the jurisdictions and the
procedural posture of the disqualification issue.
Discussion
1. Party’s or attorney’s lawsuit or ethics complaint against judge
Whether a judge must recuse if a party or attorney files an ethics complaint or lawsuit against the
judge depends on the circumstances. Several key factors are discussed below.
Timing. A judge is usually not required to recuse if a party or attorney files an ethics complaint
or lawsuit against the judge after the case is assigned to the judge. Arthur Garwin et al., Annotated
Model Code of Judicial Conduct 295-96, 307 (3d ed. 2016). Requiring recusal in that situation
would create an incentive for a litigant to file a complaint strategically in order to judge -shop or
disrupt the proceedings.
Likewise, if counsel seeks to appear in a case mid-litigation and their participation would require
the judge to be disqualified, it may be appropriate to disqualify the lawyer rather than the judge.
See In re BellSouth Corp ., 334 F.3d 941, 944 (11th Cir. 2003) (listing factors); McCuin v. Texas
Power & Light Co., 714 F.2d 1255, 1265 (5th Cir. 1983).
Recusal may be appropriate where a party’s complaint or lawsuit against the judge was filed before
the case is assigned to the judge. Annotated Model Code, supra, 307. Such a complaint is less
likely to arise from an attempt to judge-shop, and recusal at an early stage of the case is less likely
to result in a significant loss of judicial resources. However, recusal may not be required if
significant time has elapsed since the lawsuit against the judge. “[P]ersonal bias arising from past
litigation will likely erode over time.” In re Taylor, 417 F. 3d 649, 652-53 (7th Cir. 2005).
Judicial acts vs. personal acts. Judicial disqualification is usually unnecessary where a party in
a proceeding sues the judge based on judicial acts or where the judge is only a nominal defendant.
Richard E. Flamm, Recusal and Disqualification of Judges 335 (3d ed. 2017); see also Azubuko v.

to do their jobs when they are not properly disqualified.” Charles G. Geyh & W. William Hodes, Reporters’
Notes to the Model Code of Judicial Conduct 35 ( ABA 2009). Although they have not specifically
addressed this issue, reported Minnesota opinions have analyzed disqualification questions without
reference to a “duty to sit.”

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Royal, 443 F.3d 302, 304 (3d Cir. 2006) (“[T]he mere fact that Judge Hochberg may be one of the
numerous federal judges that Azubuko has filed suit against is not sufficient to establish that her
recusal from his case is warranted .”). For example, recusal may be unnecessary if a county
attorney files a mandamus action against all the judges in the judge’s district. Claims based on
judicial acts are often frivolous. See In re Taylor, 417 F. 3d 649, 652-53 (7th Cir. 2005) (holding
that recusal was not required where claims against trial judge w ere frivolous). Judges have
absolute immunity from suit for actions in the performance of their duties.
Recusal is generally required i f the judge is a party to a lawsuit involving a personal matter
unrelated to judicial acts and the opposing party or attorney appears in a case before the judge ,
particularly if the lawsuit against the judge predates the case before the judge. Arthur Garwin et
al., Annotated Model Code of Judicial Conduct 307 (3d ed. 2016); Richard E. Flamm, Recusal and
Disqualification of Judges 460 (3d ed. 2017); cf. United States v. Quintanilla, 114 F.4th 453, 469
(5th Circuit 2024) (holding that judge who had sued a company over an automobile accident and
obtained an insurance settlement was not disqualified from a case in which the defendant was the
owner of the company).
Action by ethics agency. If a party or attorney files an ethics complaint against a judge, r ecusal
may be unnecessary unless and until the agency that received the complaint decides to take action
on the complaint beyond initiating an inquiry. See Elena M. Murphy, Disqualification Following
a Complaint or Lawsuit Against a Judge , Judicial Conduct Reporter (Summer 2008) (collecting
ethics opinions), Disqualification Following a Complaint or Lawsuit People v Bero, 168 Mich .
App 545, 552 , 425 N.W.2d 138 (Mich. Ct. App. 1988) (mere filing of complaint with Judicial
Tenure Commission against judge by party or attorney does not warrant disqualification where a
complaint has not been filed by the Judicial Tenure Commission itself and the judge has not been
privately censured). However, recusal is required if the judge attacks the complainant in a way
that shows personal bias.
Recusal is generally unnecessary if an attorney’s misconduct or impairment requires a judge under
Rule 2.14 or 2.15 to report the attorney to the Office of Lawyers Professional Responsibility or
take other appropriate action. “A judge should not be disqualified for faithfully performing the
duties of his office.” U.S. v. Mendoza, 468 F.3d 1256. 1261-63 (10th Cir. 2006). Recusal may be
appropriate if the judge’s report of the lawyer under Rule 2.14 or 2.15 occurred before the current
case was assigned to the judge.

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2. Attacks and threats against the judge.
Judges are s ometimes subject to attacks by parties or their supporters, such as insults, physical
threats, adverse publicity, criticism in social media, and political attacks. These ordinarily are not
grounds for recusal, even where the judge has been physically attacked. Annotated Model Code,
supra, 303-04 . For example, U.S. v. Bayless, 201 F.3d 116, 129 (2nd Cir. 2000), held that a judge
who reversed a pre-trial ruling after being subjected to fierce political and media attacks did not
commit plain error in not recusing. The court noted that a contrary holding would give politicians
and the press a way to remove a judge from a case.
Courts have found several factors to be relevant in determining whether a physical threat requires
recusal, including: “(1) the defendant's demeanor in making the threat and the context in which it
was made; (2) the perceived purpose of the threat; (3) the defendant's capacity to carry out the
threat; and (4) the court's response to the threat.” United States v. Walsh, 47 F.4th 491, 500 (7th Cir.
2022).
The second factor, the perceived purpose, is given particular weight, as parties should not be given
the power to create their own grounds for disqualification. For example, a threat that is
communicated to the judge by law enforcement rather than by the defendant is more likely to be
genuine. United States v. Greenspan, 26 F.3d 1001, 1006 (10th Cir. 1994) (holding that where the
defendant had allegedly conspired to assassinate the trial judge and his family, the judge should
have recused because, among other factors, he “learned of the alleged threat from the FBI, and
there is nothing in the record to suggest the threat was a ruse by the defendant in an effort to obtain
a different judge”).
As with lawsuits against the judge, the timing of a physical threat is significant because it tends to
show its purpose. If the threat occurs during the proceedings, particularly after adverse rulings or
comments by the judge, the threat is likely to be viewed as motivated by a desire to obtain a new
judge. If the threat occurred before the judge was assigned to the case , it is more likely to be
viewed as genuine and, depending on its seriousness, to warrant disqualification.
3. Prosecutions in which the judge was a potential victim.
A judge is generally disqualified from presiding over a criminal prosecution for conduct in which
the judge was a potential victim. Since such conduct necessarily occurs before the prosecution is
brought, it cannot have been motivated by a desire to obtain a new judge. See Nichols v. Alley, 71
F.3d 347, 350-52 (10th Cir. 1995) (holding that judges who were potential victims of courthouse
bombing must recuse); In re Nettles, 394 F.3d 1001 (7th Cir. 2005) (holding that judges who were
potential victims of attempt to blow up courthouse must rescue even though the actual threat was
nil because the defendant’s accomplices were undercover agents); cf. United States v. Mohamud,
693 F. Supp. 3d 1070 (D. Ore. 2023) (holding that judge was not required to recuse where judge,
a family member, and law clerk happened to be present at a public event at which the defendant
attempted to set off a bomb and his accomplices were federal agents).

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4. Party’s attacks on other judges
An attack on a judge’s colleagues ordinarily does not warrant recusal unless the judge was one of
the intended victims and the attack occurred prior to the current proceeding. Disqualification of
an entire court requires a showing of extraordinary circumstances, such as a direct threat of injury
to all the judges of the district. State v. Hooper (Hooper III), 838 N.W.2d 775. 790 (Minn. 2013).
Thus, judges who were not members of the court at the time of the defendant’s criminal actions
against judges of that court are not necessarily required to recuse. In re Moody, 755 F.3d 891 (11th
Cir. 2014) (holding that neither Eleventh Circuit judges nor the district court judge was required
to recuse from proceedings involving a defendant who, before the judges had joined the bench,
had sent a “Declaration of War” to the Eleventh Circuit and murdered an Eleventh Circuit judge).
By the same token, a party’s or attorney’s lawsuit against other judges in the judicial district is
generally insufficient to warrant recusal. United States v. Studley, 783 F.2d 934, 939 (9 th Cir.
1986).
5. Judge’s election opponent or supporter appears before the judge
Whether a judge must recuse if an attorney who is currently running for election against the judge
appears before the judge in an unrelated case depends on the circumstances , such as the level of
acrimony in the campaign . Annotated Model Code , supra, 270; Elena M. Murphy , Judicial
Campaign Opponents and Impartiality , Judicial Conduct Reporter (Summer 2007) (collecting
cases), JCR_Summer07_v9.qxp; MacDonald v. Simon, A24-1022 (July 15, 2024), 12 N.W.3d 445,
445 n.1 (Minn. 2024) (noting recusal of Supreme Court justices in case brought by candidate
seeking to run against a current member of the Court and to be placed on election ballot). If the
judge decides that they do not have actual bias against the attorney, the judge should consider
seeking a waiver under Rule 2.11(C) before proceeding.
As noted in section 1 above, if an attorney’s mid-litigation appearance as counsel would require
that the judge recuse, it may be appropriate to disqualify the attorney rather than the judge. In re
Thacker, 159 So.3d 77 (Ala. Civ. App. 2014) (sustaining trial judge’s decision to disqualify
attorney who was her election opponent where attorney knew that her appearance would create a
recusal issue).
Recusal is generally unnecessary i f a party or attorney was a contributor to the campaign of the
judge’s opponent. Bocian v. Owners Ins. Co., 482 P.3d 502, 511-13 (Col. Ct. App. 2020) (finding
that trial judge properly denied motion to disqualify where member of attorney’s law firm made a
$224,000 contribution in an effort to deny judge’s retention after the case had been assigned to the
judge).
Generally, a judge need not recuse if an attorney who campaigned against the judge in the past
appears before the judge, although some courts have required recusal if the campaign was
relatively recent or acrimonious . Richard E. Flamm, Recusal and Disqualification of Judges
397-402 (3d ed. 2017).

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A party’s or lawyer’s support for or contributions to the presiding judge ’s election campaign,
without more, does not always require recusal. Factors include the extent of the party’s or lawyer’s
participation, the size of the contribution , and the recency of the campaign . Annotated Model
Code, supra, 268-270, 588-91. Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 890 (2009), held
that the due process clause required a state court justice to recuse where a party had made a
$3 million contribution to his campaign, more than the total amount spent by all other supporters.
However, the decision did not provide specific guidelines for future cases.
The ABA Model Code of Judicial Conduct calls for a judge to recuse if the judge knows or learns
that a party’s lawyer contributed more than a certain amount to the judge’s campaign . Model
Rule 2.11(A)(4). Many states, including Minnesota, have not adopted this rule. In Minnesota,
judicial ca ndidates are required to avoid learning who contributed to their campaigns.
Rules 4.2(A)(5), 4.4(B).
No reported Minnesota decision has addressed disqualification based on campaign contributions.
However, the Minnesota Supreme Court has implied that an appearance before the judge of an
attorney who was concurrently running the judge’s reelection campaign could create an appearance
of impropriety. Powell v. Anderson, 660 NW 2d 107, 118 & n.13 (Minn. 2003).
Conclusion
Litigants and attorneys should not be able to manipulate the rules to obtain a new judge simply
because they are dissatisfied with the current judge’s past or anticipated future rulings. At the same
time, unless there is a proper waiver, a judge must recuse if t he judge's impartiality might
reasonably be questioned . To conserve resources, judges should promptly disclose arguable
conflicts and, if warranted, litigants should promptly move for disqualification.
Adopted March 21, 2025