Sample Motion to Recuse Judge
Below is a motion to recuse a judge. We rarely file these motions and they are rarely granted. But there are some cases where it is important to try or, at the least, make a record for appeal.
Let us offer a word of caution. When you are filing a motion to disqualify a judge, use the kindest possible language. For every word you use, find the most generous possible euphemisms. It is just a bad idea to alienate a judge. Are you going to do that just by filing the motion? Sure. But it is a matter of degree.IN THE CIRCUIT COURT FOR BALTIMORE COUNTY, MARYLAND
KEVIN HICKS MCBRIDE :
v. : Case No.: C-20-CV-17-000001
THE OAK INN, LLC :
**************************************************************************Plaintiff's Motion To Recuse Judge Harold H. Saleh
Plaintiff, Kevin H. McBride, by and through his undersigned counsel, submits this Motion to Recuse Judge Harold H. Saleh, and in support thereof states as follows:Introduction
The case at bar involves a premises liability claim against the Defendant who owned/operated a country inn located in Baltimore County, Maryland. On May 14, 2017, the Plaintiff was an invitee at the Defendant's property and was attending a wedding reception. At approximately 10:30 p.m. the Plaintiff's right foot became entrapped under a warped landscaping tie on the Defendant's property. As a direct result thereof, the Plaintiff's tibia plateau was fractured requiring surgical intervention. The Defendant has retained an "expert" to provide opinions on various hotly disputed issues. Judge Harold Saleh is very familiar with the Defendant's retained "expert" because he has retained and utilized that individual as his own expert when he was in private practice, prior to becoming a judge. As such, and for the reasons advanced below, a recusal is mandated.The Reasons Why Recusal is Required
Plaintiff appreciates that the Honorable Judge Harold H. Saleh may not be the presiding judge for this lengthy trial. However, the assignment office could not, as of this date, disclose the name of the judge who will actually preside over the trial scheduled for December 10, 2019. Due to this dilemma, the Plaintiff is now required to file this Motion in an abundance of caution to ensure that an impartial judge, who does not have a personal history and professional association with Defense "expert" William B. Stanley, will preside over the trial.
One of Defendant's experts is William B. Stanley. Defendant designated him as an expert on the topics of premises safety and lighting safety. The relevant portions of his deposition transcript are attached hereto as Exhibit A. At issue in this case is the lighting condition that existed at the time the Plaintiff's foot became entrapped underneath of the landscaping tie causing a fracture to his lower leg. The Defendant has raised contributory negligence as a defense in this case and Mr. Stanley's lighting opinions allegedly advance this defense.
Mr. Stanley's deposition testimony reveals that Judge Harold Saleh is very familiar with Mr. Stanley as an expert witness. In fact, Judge Harold Saleh selected, retained, and utilized Mr. Stanley as an expert witness in his Honor's own litigation cases while he was in private practice. In those cases, Judge Harold Saleh retained and trusted Mr. Stanley to testify as a defense expert witness, the same role that Mr. Stanley plays in this case. (Ex. A at 35-37 and 142.) In at least one of those cases, Judge Harold Saleh called Mr. Stanley as a defense expert witness at trial and, therefore, has preconceived and biased beliefs regarding Mr. Stanley's competency, qualifications, and admissibility of his opinions.
To be sure, Judge Harold Saleh would not have proffered Mr. Stanley as an expert witness in this court if he was not convinced of Mr. Stanley's qualifications and was impressed with his opinions. Evaluating an expert witnesses' qualifications and making a determination whether that expert is qualified to render expert opinions is directly within the purview of the trial judge. Maryland Rule 5-702 mandates that the "… the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education …" Judge Harold Saleh, if chosen to act as the trial judge in this case, would be charged with that very task.
In addition to litigation matters, Judge Harold Saleh trusted Mr. Stanley as an expert in at least "half a dozen" non-litigation matters. (Ex. A at 141-142.) Moreover, Judge Harold Saleh's brother, Christopher Saleh, was also an attorney, and "was the Town of Easton attorney for 15 years." (Id. at 142.) During that time, Judge Harold Saleh's brother, Christopher Saleh, had direct dealings with Mr. Stanley on "25" occasions. (Id. at 143.)
The Canons of judicial conduct require that a "judge shall… perform all duties of judicial office impartially." MD R JUDGES Rule 18-102.2. Those Canons also require that a "judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned." MD R JUDGES Rule 18-102.11. Following that recusal mandate, Rule 18-102.11 "lists a non-exclusive set of circumstances that mandate recusal." Abrishamian v. Barbely, 188 Md. App. 334, 342 (2009) (emphasis added). In fact, "[u]nder this Rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific provisions of subsections (a)(1) through (5) apply." MD R JUDGES Rule 18-102.11, Comment 1 (emphasis added). The need for impartiality is so important that, even absent a motion to recuse, a judge maintains his disqualified status. Id. Comment 1 ("A judge's obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed.") (Emphasis added).
The definition of "reasonably be questioned," from the recusal Rule (MD R JUDGES Rule 18-102.11), is succinctly stated in In re Turney, 311 Md. 246, 253 (1987). In that case, the Court of Appeals explained that disqualification is required where "a reasonable member of the public knowing all the circumstances would be led to the conclusion that the judge's impartiality might reasonably be questioned." (emphasis added). The effect of Judge Harold Saleh's personal history of employing Mr. Stanley as an expert while Judge Harold Saleh was in private practice as an attorney, his preconceived opinions about Mr. Stanley's qualifications, and his imputed bias about Mr. Stanley's ability to offer admissible expert opinions, would cause even the most uninvolved individual - i.e., "member of the public" - to reasonably doubt Judge Harold Saleh's impartiality to preside over this trial.
It is difficult to foresee a situation wherein Judge Harold Saleh, who has actually qualified Mr. Stanley as an expert in a Maryland Court in the past, would be able to set aside all of his knowledge of Mr. Stanley, and his personal beliefs in Mr. Stanley's ability to render expert opinions, in order to remain completely neutral. No lawyer actually hires and an "expert" to provide opinions in his /her case unless that lawyer is completely convinced of the expert's ability and strength of his/her opinions.
Allowing Judge Harold Saleh to make the preliminary determination of Mr. Stanley's qualifications as an expert witness would be synonymous to permitting a juror who had paid Mr. Stanley to testify in his own civil litigation case to sit on the jury.
The role of the trial judge in making a preliminary determination regarding Mr. Stanley's ability to render expert opinions in this case cannot be understated. The judge presiding over this trial will need to accept or decline Mr. Stanley as an expert on several different topics, rule on motions in limine, rule on objections, control the scope of Mr. Stanley's opinions, and compel, where necessary, Mr. Stanley to offer responsive and non-evasive answers to questions. These tasks should all be performed by a judge who does not have a direct history of trusting and employing Mr. Stanley as an expert. Any "reasonable member of the public", knowing all the circumstances related to Mr. Stanley and Judge Harold Saleh's history together, would easily conclude that Judge Harold Saleh's impartiality might reasonably be questioned and, therefore, he should not preside over this trial. In re Turney, at 253.
In conclusion, all Parties in this case are entitled to a fair and impartial trial, and that goal can only be accomplished through an impartial judge presiding over the trial. Consequently, for all the foregoing reasons, it would be improper for Judge Harold Saleh to preside over the trial of this matter.
WHEREFORE, for the foregoing reasons, Plaintiff requests respectfully that the instant Motion be granted and Judge Harold Saleh be recused from presiding over the trial of this matter.