On August 1, 2021, an act amending and reenacting the Louisiana Code of Civil Procedure articles governing judicial recusal became law. See La. Code Civ. Proc. arts. 151 et seq. The new law significantly expands the statutory grounds for judicial recusal. Moreover, the new law now requires that judges make certain disclosures to lawyers and unrepresented litigants appearing before them. The new law also changed the procedures for recusal of district court judges. Here is a summary of the major changes:
- Louisiana Code of Civil Procedure article 151 has always provided the mandatory and discretionary grounds for judicial recusal. The new law removes the discretionary grounds for recusal from article 151 and adds a “catch-all” category for the mandatory recusal of judges. Under the new law, a judge shall 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.” Id. The comments to article 151 clarify that the new provision is intended to “incorporate a clearer, more objective standard than the language of Canon 3C of the Code of Judicial Conduct, which provides that a judge should recuse himself when ‘the judge’s impartiality might reasonably be questioned.'” Id. at cmt b.
- Louisiana Code of Civil Procedure article 152 now requires that judges disclose certain information to lawyers and unrepresented litigants appearing before him. Among other things, a judge is now required to disclose if “[t]he judge’s spouse, parent, child, or immediate family member has a substantial economic interest in the subject matter in controversy” or if the judge is related to a party or the spouse of a party, within the fourth degree. See La. Code Civ. Proc. art. 152. This article is new. But “its substance is taken from former Paragraph B of Article 151, which previously set forth permissive grounds for recusal.” Id. at cmt. a. The disclosure requirements apply to appellate judges, district court judges, parish and city court judges, as well as justices of the peace. See id. at cmt. d.
- The Louisiana Code of Civil Procedure has always permitted a judge to recuse himself in a cause in which a ground for recusal exists, regardless of whether a party filed a motion for judicial recusal. Under the new law, a judge who recuses himself must now file in the record the order of recusal and provide written reasons that provide the factual basis for recusal. See La. Code Civ. Proc. art. 153.
- Article 154 previously required that parties file a motion to recuse prior to the trial or hearing unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after these facts are discovered, but prior to judgment. The new law narrows the timeframe for parties to file a motion to recuse. Under the new law, parties must file a motion to recuse no later than 30 days after discovering the facts forming the basis to recuse the judge. See La. Code Civ. Proc. art. 154(a). Additionally, the article “recognizes that in some cases, the facts constituting the ground upon which the motion to recuse is based occur after, or could not have been discovered before, the matter is scheduled for trial. In cases that fall under this exception, Paragraph A provides that the motion to recuse shall be filed immediately after such facts occur or are discovered.” Id.
The legislature’s amendments to the recusal articles are a good development. The new mandatory disclosure requirements fill in a prior gap in the law regarding judges what must disclose to litigants and lawyers appearing before them. Moreover, the new law expands the statutory grounds for recusal to bring Louisiana law in line with current Supreme Court case law on recusal under the due process clause of the United States Constitution. See Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) (applying an objective test for recusal when the “probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.”)
In my opinion, judges should expect to see a flood of motions to recuse invoking the new, broad “catch-all” grounds for recusal in article 151. Judge will likely continue to see a flood of recusal motions until the Louisiana appellate courts weigh in on when 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” exist.