State v. Malone, 963 NW 2d 453 (Minn: Supreme Court 2021)

In problem solving court, here DV court, the district court judge was disqualified from presiding over defendant’s case, because the judge’s impartiality was reasonably called into question by the judge’s investigation into facts not in the record, announcement to the parties of the findings of that investigation, and reliance on those findings in ruling on appellant’s pretrial motion.

Disciplinary Counsel v. Repp, 2021 Ohio 3923 – Ohio: Supreme Court 2021

Judge was suspended from practicing law for one year for ordering a participant’s girlfriend who was observing court to provide a drug test. When she refused the judge held her in contempt of court and sentenced her to ten day in jail.

In the Matter of the Honorable Patrick R. Miller, former Judge of the Adams Superior Court, Supreme Court Case No. 21S-JD-513, Supreme Court of Indiana, January 21, 2022.

Judge disciplined and barred from holding judicial office for life for violating the Judicial Code of Conduct Rule 1.1 and 1.2, by failing to maintain an appearance of impartiality and by failing to comply with the law. Judge while running for reelection, had a drug court employee engage in campaign activities during business hours. Additionally the judge provided a drug court participant with a campaign yard sign, which was placed in the participant’s yard.

Conner v. State, 248 A. 3d 318 (Md. 2021)

Excellent analysis of the judicial recusal issue, ultimately holding recusal not required. The court noted: “Although these concerns are not implicated actually by the record in this case, we shall refer to the Rules Committee the 336*336 issue of whether specific additional or different guidance for recusal of judges who have participated in Drug Court proceedings, whether by presiding or by receiving communications as a member of the therapeutic team, should be incorporated into Rule 18-102.11 and/or Rule 16-207.” The Maryland Supreme Court cited the NDCI Judicial Benchbook.

Disqualification of Harris, 162 NE 3d 835 – Ohio: Supreme Court 2020

The Code of Judicial Conduct contemplates that a judge who administers a specialized docket assumes a more interactive role with parties, treatment providers, probation officers, social workers, and others.

Disqualification of Yost, 155 Ohio St.3d 1266, 2018-Ohio-5257

Recognizing that a judge may initiate, receive, permit, or consider ex parte communications when administering a specialized docket. Therefore, the fact that a judge may have been exposed to certain information about a participant in or applicant to a specialized-docket program—information that the judge may not have learned in the more traditional judicial forum —does not automatically require the judge’s disqualification from matters involving the participant or applicant. “In these situations, the ability of a judge to preside fairly and impartially in a particular matter must be analyzed on a case-by-case basis.”

State v. Marcotte, 943 NW 2d 911 – Wis: Court of Appeals 2020

Notably, we do not hold that a judge who has presided over drug court proceedings involving a particular defendant can never sentence that defendant after the revocation of his or her probation. Whether a judge is objectively biased under those circumstances must be determined on a case-by-case basis. Here, the record 922*922 contains other evidence of objective bias, beyond the mere fact that Judge Morrison presided over both the drug court proceedings and Marcotte’s sentencing after revocation. Specifically, the record shows that Judge Morrison: (1) made multiple comments indicating he had prejudged Marcotte’s sentence; (2) repeatedly referred to his personal frustration with Marcotte’s failure in drug court during the sentencing after revocation hearing; and (3) expressly stated when imposing Marcotte’s sentence after revocation that he was relying on information he had learned during the drug court proceedings.

Taken together, these factors give rise to an appearance of bias that is sufficient to reveal a great risk of actual bias. Moreover, that great risk of actual bias was borne out by the fact that Judge Morrison ultimately imposed a sentence after revocation that was longer than those recommended by both the State and the DOC. Accordingly, Marcotte has met his burden to overcome the presumption that Judge Morrison was unbiased, and we therefore reverse and remand for Marcotte to be resentenced by a different judge.

STATE OF WASHINGTON, Respondent, v. CHERRINGTON, ALECIA MARIE, DOB: 07/12/1981, Appellant. (September 28, 2020)

Same Judge as in Lemke below-court again used demeaning approach.

State v. Lemke, 434 P. 3d 551 (Wash. Court of Appeals, 1st Div. 2018)

No judge wielding the power of the State in any courtroom has any good reason to call a litigant a “fucking addict” and “just a criminal.” The judge’s manifestation of personal animosity toward Lemke is not something we can write off as a byproduct of the informal and confrontational culture of drug court. A “fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955). The sentence must be reversed.

State v. Walker, Not Selected (Wash: Court of Appeals, 1st Div. 2019)

Same trial court judge as in Lemke, above, has extended colloquy with drug court participant and that frank and pointed discussion not sufficient basis to disqualify judge.

State v. Baker, 2019 Ohio 1807 (Ohio: Court of Appeals, 7th Appellate Dist. 2019)

Appellate court did not have jurisdiction on late raised prejudiced judge motion but even if it did court was not required to recuse where there was no evidence in the record that prior representation evinced bias by judge.

US v. Merrill, Dist. Court, D. Idaho (6/10/19)

Federal District Court judge was not required to recuse from defendant’s case, where he had previously recused as a state judge in a drug court termination hearing because of an informal policy.

Day, 362 Or 547, 636, 413 P.3d 907 (2018)

Judge suspended from office for fraternizing with Veteran’s Treatment Court participant, among numerous other ethical and candor issues.

State v. Horne, (Tenn. Court of Criminal Appeals 2017) (Telling defendant that this is his last chance is not prohibited as pre-judging the consequences of the next infraction)

Disqualification of Blanchard, 2017 Ohio 5543 (Ohio Supreme Court 2017)

The fact that the same judge presides over a parent’s dependency case and her drug-court hearings does not, without more, mandate the judge’s disqualification from one of those matters. Nor does the fact that Judge Blanchard may have heard prejudicial information about the parents in drug-court hearings necessarily require his removal from the dependency cases. In general, what a judge learns in his official judicial capacity in another proceeding is not the kind of information that leads to disqualification. Judge Blanchard is also correct, however, that the ability of a judge to preside fairly and impartially in a particular matter must be analyzed on a case-by-case basis. Hypothetically, a judge could be exposed to such highly prejudicial information in a parent’s drug-court hearings that the likelihood of bias or an appearance of bias in a parent’s dependency case would be unacceptably high. But here, the parents’ general and nonspecific claim that Judge Blanchard “heard numerous prejudicial facts” about them in drug-court hearings is insufficient to overcome the presumption of the judge’s impartiality.

State v. Barraza, ____ P.3d ___ (NM Court of Appeals 2017)

Defendant received sufficient due process protections in her termination from drug court and the judge was not required to recuse.

Minnesota v. Cleary, 882 N.W.2d 899 (Court of Appeals of Minnesota July 5, 2016.)

When the sole basis for revoking probation is a probationer’s termination from drug court and the drug court judge participated in the drug court team’s decision to terminate the probationer from drug court, a probationer is entitled to have a judge other than the drug court judge preside over the probation revocation hearing, because of the appearance of lack of impartiality.

State v. McGill, No. M2015-01929-CCA-R3-CD. (Tenn: Court of Criminal Appeals 7/18/2016)

Based on this Court’s ruling in Donte Dewayne Watson, No. M2015-00108-CCA-R3-CD, 2016 WL 791563 (Tenn. Crim. App. Mar. 1, 2016), we conclude that there is no clear and unequivocal rule of law that a trial judge must recuse himself simply because he was also a member of a defendant’s drug court team. There must be some proof in the record that the trial judge either received ex parte communications or was actively involved in the defendant’s treatment in order to show that the trial judge was neither neutral nor detached. In this case, there is no proof in the record that the trial court judge was privy to any ex parte communications regarding the subject matter of Defendant’s community corrections violation or that he relied upon information learned during the course of the drug court program without giving Defendant a fair chance for rebuttal.

Dominey v. State, Not Selected for Publication, (Tex. App., 2015)

Defendant’s allegations that the judge obtained information from an extrajudicial source was rebutted by defendant’s own statements and no showing was made that the judge was anything but impartial in this deferred adjudication sentence.

Gross v. State of Maine, Superior Court case # CR-11-4805 (2/26/13)

Drug court procedures relating to termination violative of due process and, therefore, unconstitutional. Drug Court participant entitled to: notice of the termination allegations and the evidence against him, right to call and x-examine witnesses, a hearing at which he is present, a neutral magistrate, written factual findings and the right to counsel. Here, the drug court team discussed the termination decision during the termination hearing, without defendant’s presence or that of his counsel. That procedure coupled by the fact the Superior Court felt that the drug court judge should have recused, resulted in a finding of constitutional infirmity. Moreover, the appellate court ruled the defendant did not, arguably could not prospectively waive his rights, citing LaPlaca and Staley.

State v. Tatlow, 231 Ariz. 34, 290 P.3d 228 ( 2012)

No due process violation for judge to hear drug court termination and probation revocation.

M.W. and Mi. W. Minor Children, 2012 Ohio 5075 (2012)

No due process violation to have dependency/neglect trial court judge also preside over drug court, where respondent is in both courts.

Arizona v. Perez Cano, No. 1 CA-CR 11-0473 Court of Appeals of Arizona (September 20, 2012) UNPUBLISHED

Judge was not required to recuse for drug court termination hearing.

Grayson v. Kentucky, No. 2011-CA-000399-MR. Court of Appeals of Kentucky UNPUBLISHED ( June 29, 2012)

Judge was not required to recuse for drug court termination hearing.

Turner v. Arkansas, 2012 Ark. 357 (2012)

The fact that prosecutor and judge both received grant funding for drug court did not facially give rise to sufficient facts for recusal.

Tennessee v. Stewart, No. W2009-00980-CCA-R3-CD, Court of Criminal Appeals of Tennessee, (August 18, 2010)

It was a due process violation for drug court judge to hear probation revocation hearing.

Ford v. Kentucky, and William E. Flener v. Kentucky, No. 2008-CA-001990-MR, No. 2009-CA-000889-MR, No. 2009-CA-000461-MR, 2010 Ky. App. Unpub. LEXIS 380 (Ky. Appellate Apr. 30, 2010)

Holding that having same judge preside over drug court and revocation hearing is not a denial of right to impartial hearing/due process.

Model Code of Judicial Conduct R. 2.11 (2007).

If continuing on the case would create an appearance of impropriety, such non-recusal would implicate Canon 2 of the Canons of Judicial Conduct.

Wilkinson v. State, 641 S.E.2d 189, 191 (Ga. Ct. App. 2006).

As part of her drug court contract the defendant waived her ability to move for recusal of the drug court judge.

State v. Belyea, 160 N.H. 298, 999 A.2d 1080 (N.H. 2010)

Holding that the defendant failed to show that a reasonable person would entertain significant concern about whether Judge Vaughan prejudged the facts or abandoned or compromised his impartiality in his judicial role on the drug court team.

Inquiry of Baker, 74 P.3d 1077, 1077 (Or. 2003)

Censuring judge for failing to disqualify herself from probation revocation hearing in which the events giving rise to the proceeding occurred at a restaurant in front of judge.

Youn v. Track, 324 F.3d 409, 423 (6th Cir. 2003)

Holding that the court’s comments and rulings do not show bias when they were based upon evidence acquired during proceeding.

Alexander v. State, 48 P.3d 110, 115 (Okla. Crim. App. 2002)

Requiring the District Court to act as Drug Court team member, evaluator, monitor, and final adjudicator in a termination proceeding could compromise the impartiality of a district court judge assigned the responsibility of administering a Drug Court participant’s program Therefore, in the future, if an application to terminate a Drug Court participant is filed, and the defendant objects to the Drug Court team judge hearing the matter by filing a Motion to Recuse, the defendant’s application for recusal should be granted and the motion to remove the defendant from the Drug Court program should be assigned to another judge for resolution.

United States v. Ayala, 289 F.3d 16, 27 (1st Cir. 2002)

Stating that the standard is whether the facts, as asserted, lead an objective reasonable observer to question the judge’s impartiality.

United States v. Microsoft, 253 F.3d 34, 117 (D.C. Cir. 2001)

Holding that the judge’s comments to the press while the case was pending demonstrated bias.

United States v. Bailey, 175 F.3d 966, 969 (11th Cir. 1999)

Holding that recusal was not required where judge received facts from judicial source.

Edgar v. K.L., 93 F.3d 256, 259 (7th Cir. 1996)

Holding that judge who received off the record briefings had extra judicial personal knowledge of facts.

Liteky v. United States, 510 U.S. 540, 555 (1994) (Usually the basis of recusal is due to partiality or bias acquired outside the context of the proceedings – or from an “extrajudicial source)

Lozano v. State, 751 P.2d 1326, 1326 (Wyo. 1988)

Holding that the mere fact that probation revocation judge witnessed defendant in bar drinking in violation of her probation was not error, where the defendant freely admitted she was drinking in violation of probation.

Murchison, 349 U.S. 133, 136-139 (1955)

Recusing a judge because he could not detach himself from personal knowledge of secret grand jury proceedings.