Legal Memorandum: Disqualifying a Judge in the 10th Circuit

Issue: Under the rules of the Tenth Circuit, does a failure to bring a timely motion to disqualify a judge constitute a waiver of the objection?

When there are grounds to believe a judge’s impartiality may be questioned, there can be no waiver of the disqualification unless there has been a full disclosure on the record.  28 U.S.C. § 455(e).

A motion for recusal must be “timely.”  Singer v. Wadman, 745 F.2d 606, 608 (10th Cir. 1984).  The Tenth Circuit has never defined “timely” in this context, but cases addressing the question provide guidance.  In Singer, the recusal motion was held not timely, but it was brought “about one year” after the filing of the complaint and after adverse rulings had been made.  Id.  The opinion is silent regarding when the grounds for the recusal motion were learned.  In Willner v. University of Kansas, 848 F.2d 1020 (10th Cir. 1988), motions for recusal were made months after grounds for recusal were known.  These motions were untimely.  In Haynes v. Memmen, 512 F. App’x 741 (10th Cir. 2013), a motion was untimely when the issue of bias was first raised eight years after the dismissal of the case.

See SCA Servs. v. Morgan, 557 F.2d 110 (7th Cir. 1977) (disqualification not waived when conflict was not waived on the record after disclosure). 

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