On Feb. 29, the Supreme Court heard argument in Williams v. Pennsylvania, a case presenting two issues: (1) should one of the judges hearing the capital case appeal have recused himself due to involvement at the trial level; and, if so (2) what’s the proper remedy, if any, if the majority vote on appeal would remain a majority even excluding that judge’s vote. We’re looking at Q #2 today.
I have mused upon this issue in the context of administrative bodies, noting the Maine authority (as far as there is any) on this question, including a decision in which we successfully argued no re-do is required in a planning board context. See http://maineappeals.com/tuscan-footnote, http://maineappeals.com/under-the-tuscan-sun- As those discussions and the case law cited there suggest, the law with respect to town officials making decisions is somewhat squishy, with authority for the proposition that a re-do is not required.
I am unaware of any Maine precedent, however, with respect to whether a re-do is required if an appellate panel of judges had a member that shouldn’t have participated. Given that Maine has no intermediate appellate body, the situations in which this question would ever come up would appear to be rare. There apparently isn’t any First Circuit decision on this either.
Interestingly, if the citations in the briefing in Williams are to be relied on, it appears that the majority view is that yes, the whole panel is tainted. http://www.scotusblog.com/case-files/cases/williams-v-pennsylvania/ The ABA and various other groups (including one in which I am a member, the American Academy of Appellate Lawyers) argued in favor of that view.
I can see differences between administrative/municipal decision-making and judicial appellate deliberation that could militate for different results. For example, a board’s deliberating is, generally speaking, all supposed to be public. You can see where each individual is going right on the record in a transcript. On the other hand, judicial appellate decision-making takes place in a black box, and there have been interesting studies about collegiality and other factors with respect to judicial panels that would tend to support the conclusion that a re-do is needed, because a decision from a panel is very much a group think, requiring compromise and internal advocacy, conscious and unconscious. There’s a phenomenon called “group polarization,” that social scientists have studied, even in the judicial context. (Go to the scotusblog link above and take a look at the The Ethics Bureau at Yale amicus brief starting @ p. 21; the Former Appellate Jurists brief @ p. 10; and the Brennan Center brief @ p. 14.)
Judges, of course, generally think that they can rise above being influenced by things they shouldn’t be exposed to (e.g., evidence ultimately deemed inadmissible). So the fact that the majority of the case law – decisions by judges, about judging – find taint could be deemed pretty persuasive.
In the oral argument in Williams (yes, your intrepid blogger really did her homework here!), the discussion about remedy included some musing as to how much of a re-do would be required – just an order from the Court saying “ok Pennsylvania Supreme Court, reconsider without this judge [who has now retired in any event],” without getting into what that means – new briefs, argument etc. The biggest concern of the Justices appeared to be a desire to maintain their own rule that each Justice decides on his or her own whether to recuse himself or herself, wholly unreviewable by the group, and whether/how that rule might or might not be undermined by a ruling that if someone should have recused themselves, there needs to be a whole panel re-do. This is why they don’t like having to rule that a failure to recuse rises to the level of a due process violation. If it’s a constitutional problem, then normally it’s reviewed, right?
We shall see.