North Carolina Business Litigation Report

The Fourth Circuit On Recusals And Pro Hac Vice Admissions

We all sometimes say things that we are sorry to have said.  Even judges. Those types of statements by a District Court Judge in South Carolina, which the Fourth Circuit called "neither wise nor temperate" were the subject of a recusal motion ruled on last week by the Fourth Circuit, in Belue v. Aegon USA, Inc.   The Court also discussed the circumstances under which a pro hac vice admission can be withdrawn, taking issue with the trial judge's revocation of that status.

The comments by Judge Anderson of the District of South Carolina were made in connection with a hearing in a  class action matter.  He criticized a related settlement in another jurisdiction as possibly being one "of those buddy settlements  we have to watch out for."  He was also critical of the defendants' approach in another case and suggested that the settlement in that case had been "improper."

This prompted the defendants' lawyers to file a motion to recuse Judge Anderson pursuant to 28 U.S.C. sec. 455 (b)(1), which requires recusal when a judge "has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding."

The Judge's reaction to the motion to recuse was fiery.  He said it was the defense counsel's reaction to negative rulings, saying "you lose the case and attack the judge."  He called the request for recusal "the most inappropriate motion in the world."

Judge Wilkinson, writing for the Fourth Circuit, said that recusals based on in-trial conduct generally involved "singular and startling facts."  He noted that the Supreme Court has said that the bias should stem from a source outside of the judicial proceeding, usually requiring an "extrajudicial source." 

The Fourth Circuit called the recusal motion "decidedly ill founded."  Judge Wilkinson said that "strong views" expressed by a judge about a case were not grounds for recusal, stating that:

Litigation is often a contentious business, and tempers often flare. But to argue that judges must desist from forming strong views about a case is to blink the reality that judicial decisions inescapably require judgment. Dissatisfaction with  a judge’s views on the merits of a case may present ample grounds for appeal, but it rarely — if ever — presents a basis for recusal.

Op. p.15. 

The opinion expresses a general disfavor of recusal motions, saying that they should not "become a form of brushback pitch for litigants to hurl at judges who do not rule in their favor," and that "no appellate court can afford to leave trial judges prey to a slew of groundless calls for recusal from litigants whose major objection to those judges appears to be a perceived disagreement with them."

While the appellate court concurred with the denial of the motion to recuse, it disagreed with the trial court's decision to revoke the pro hac admission of the defense counsel who had filed the motion.  The reasons given for the revocation included  the minor violations of local court rules, which the Fourth Circuit found insubstantial.

The primary issue with the revocation was the lack of advance notice to defense counsel of the reasons for revocation.  An attorney admitted pro hac "must receive some modicum of due process before it is revoked."  That "modicum of due process" requires "notice of the specific grounds for revocation and a meaningful opportunity to respond." 

The Fourth Circuit found lacking the notice and opportunity given in this case to respond.  It vacated the revocation of defense counsel's pro hac admission, partly based on their argument that it had caused them "serious professional and reputational consequences."

 

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Mack Sperling
Brooks Pierce, LLP
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