The Louisiana Legislature again amended the civil and criminal code articles governing the recusal of district court judges. The amendments became effective on August 1, 2022. Here are the main takeaways.
The Code of Civil Procedure
- The code articles have always allowed a judge to either self-recuse or refer a recusal motion to another judge upon receipt of a written motion. Under the amended code article, the judge shall act on the motion to recuse–by either self-recusing or referring the motion to another judge–within seven days of receiving the motion. See La. Code of Civ. P. art. 154.
- A judge is permitted to deny a motion to recuse without appointment of an ad hoc judge and without a hearing if the motion fails to set forth valid grounds for recusal under article 151. The judge must now, however, provide written reasons for the denial. See La. Code of Civ. P. art. 154.
- The Louisiana Legislature also added a comment to article 153 clarifying that the factual basis for recusal must be included in the enumerated list in article 151. Further, the comment emphasizes that the filing of a judicial complaint, without more, is insufficient to require recusal. See La. Code of Civ. P. art. 153. ” The factual basis for the judge’s recusal must pertain to one of the grounds for recusal set forth in Article 151. The fact that a judicial complaint has been filed against the judge by one of the parties, without more, is not sufficient to constitute a ground for recusal.”
The Code of Criminal Procedure
- The Louisiana Legislature amended the statutory grounds for recusal of a district court judge in a criminal case. The revised code article now includes the following ground for recusal: “In a criminal cause, a judge of any trial or appellate court shall also be recused when there exists a substantial and objective basis that would reasonably be expected to prevent the judge from conducting any aspect of the cause in a fair and impartial manner.” See La. C.C.P. art. 671(B).
- Article 671 has long “provide[d] for recusal if the judge is a material witness in the cause.” See La. C.C.P. art. 671(A)(4). The new comments to the article clarify that “the phrase “material witness,” [means] the judge would not be recused if he had been called to testify to a matter relating to something other than the guilt or innocence.” See id. at cmt. e.
- A judge has long been permitted to self-recuse from a case when a grounds for recusal exist. Now, however, the new article requires the judge to file written reasons explaining the factual basis for the judge’s self-recusal prior to the case being allotted to another judge. See La. C.C.P. art. 672(B). Like the new comments to the Code of Civil Procedure, new comments to the criminal code explain that “The factual basis for the judge’s recusal must pertain to one of the grounds for recusal set forth in Article 671. The fact that a judicial complaint has been filed against the judge by one of the parties, without more, is not sufficient to constitute a ground for recusal.” See La. C.C.P. art. 672 cmt. c.
- Amended article 674 provides for new time limitations within which a party must file a motion to recuse the judge. The article has been amended to mandate that parties file the motion to recuse no later than thirty days after learning of the basis for the recusal. Moreover, the article now provides that in all cases, the motion to recuse must be filed at least thirty days before the beginning of the trial. See La. C.C.P. art. 674(A). Finally, under the amended code article, the judge shall act on the motion to recuse–by either self-recusing or referring the motion to another judge–within seven days of receiving the motion. See La. C.C.P. art. 674(B).
- The code articles now clarify that “[w]hen the judge is recused after the trial is commenced, it is necessary to declare a mistrial and completely retry the case before the new judge.” See La. C.C.P. art. 674, cmt. d.
- The amended articles also emphasize that rulings concerning the recusal of a judge are reviewed before there is a trial on the merits. The article provides that “if a judge is recused over the objection of the state or the defendant, or if a motion by the state or the defendant to recuse a judge is denied, the party’s exclusive remedy is to apply for a review of the ruling by supervisory writs. A ruling recusing or refusing to recuse the judge shall not be considered on appeal.” See La. C.C.P. art. 684(B). Further, “Upon ruling on a motion to recuse a judge, the judge shall advise the defendant in open court or in writing that the ruling may be reviewed only by a timely filed supervisory writ to the appellate court and shall not be raised on appeal.” See La. C.C.P. art. 684(C). The new comment to this article explains that “[t]he failure of the judge to provide the required notice to the defendant may give rise to the issue of recusal being reviewed on appeal.” See id. at cmt. c.
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