The Tennessee Model for Judicial Disqualification
A robust, transparent, and meaningful recusal process empowers judges and litigants. Clear standards in the code of judicial conduct (or “judicial canon”) keep judges informed of their responsibilities and the boundaries of their activities, while leaving them latitude to remain independent. Where the code of conduct discusses disqualification of judges, it should provide clear guidance for proper recusal decisions to protect judicial integrity.
Litigants, on the other hand, are protected by motions seeking substitution of judge for cause. Procedural standards for these motions are a necessary complement to judicial codes of conduct regarding disqualification without a motion. Court rules that bring consistency and transparency to Motions for Substitution of Judge for Cause should be promulgated.
The Tennessee Model has risen to prominence in the conversation about judicial disqualification in part because it includes both a clear canon with expansive commentary and a set of procedural rules that govern how to file a motion to disqualify, how to deny such a motion, and how to appeal the denial of the motion. Tennessee Rule 10B requires that Motions for Disqualification be written and that the court issue a written decision on the Motion.
As adopted Rule10B, Section 2, created an interlocutory appeals process for immediate review of denials by an intermediate appellate court. On June 19, 2013, the Tennessee Supreme Court amended Rule 10B, Section 2 (.pdf). The new part—Section 2.07—now provides for a discretionary appeal to the Supreme Court following an intermediate court’s decision in a recusal appeal. The Tennessee Supreme Court’s review of the intermediate appellate court’s determination is de novo.
The Tennessee Bar Association submitted the only comment on the proposed rule change, which was adopted with only one change from its earlier proposed version.
As we noted late last year, the ISBA has submitted a proposal for a new judicial qualification rule to the Illinois Supreme Court. Since that time, Chicago Appleseed has also released a policy brief on recusal standards and joined with ICPR in submitting a proposed rule based upon the Tennessee model to the Illinois Supreme Court.