COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Student v. Wachusett regional School District
BSEA# 09-2526
RULING ON MOTION FOR RECUSAL
Background
1. On October 9, 2008 Parents’ attorney requested an expedited hearing before the BSEA. Expedited status was initially granted.
2. On October 10, 2008 the attorney for the Wachusett Regional School District (WRSD) filed an objection to the expedited hearing status.
3. On October 14, 2008 the assigned Hearing Officer scheduled a motion session for October 15, 2008 to determine the appropriate hearing status.
4. On October 15, 2008:
A. Parents’ attorney requested the BSEA Director to administratively reassign this case to another Hearing Officer.
B. WRSD’s attorney objected to any administrative reassignment.
C. The BSEA Director declined to reassign the case to another Hearing Officer and instructed Parents’ attorney to file a motion for recusal with the Hearing Officer.
D. Parents’ attorney filed with the Hearing Officer a recusal motion with accompanying memorandum and affidavits.
5. At the motion session on October 15, 2008 the Hearing Officer granted WRSD’s motion to remove this case from the expedited track; returned the case to the regular hearing track with normal timelines; and gave WRSD seven days to respond to Parents’ motion for recusal of the Hearing Officer.
6. On October 22, 2008 WRSD’s attorney filed its opposition to Parents’ motion for recusal with accompanying memorandum.
7. On October 24, 2008 the Hearing Officer wrote to the attorneys inquiring if either side wished to present oral argument.
8. On October 24, 2008 Parents’ attorney requested oral argument. WRSD’s attorney did not require oral argument but agreed to participate in same.
9. On October 28, 2008 the Hearing Officer scheduled a telephonic motion session for October 30, 3008 at 4:00 p.m.
10. On October 30, 2008 just after 3:00 p.m., Parents’ attorney withdraw her request for oral argument, and given that WRSD had declined oral argument, requested cancellation of the motion session. Therefore, Parents motion for recusal will be considered based upon the parties’ written submissions.
PARENTS’ POSTION
Parents move that the Hearing Officer recuse himself because Parents’ attorney in this case represented a Parent/Student in another unrelated BSEA case. Parent in the unrelated BSEA case has filed or will file a complaint about this Hearing Officer and has requested that her attorney participate in this complaint. Parents’ attorney in this case has filed or will file a letter in support of that Parent’s complaint in the unrelated case. Parents’ attorney has filed an affidavit that states her belief that the Hearing Officer cannot be impartial/render an impartial decision in the current case because of Parents’ attorney’s participation in Parent’s complaint against the Hearing Officer in the unrelated case. Parents’ attorney states that if the Hearing Officer were to preside over the current matter and rule against her client in any fashion, the current client would believe such decision to be the result of her attorney’s participation in the complaint against the Hearing Officer in the unrelated case. Parent in this case has filed an affidavit that she is aware that her attorney intends to participate in a complaint in an unrelated matter on behalf of another client concerning the Hearing Officer that has been assigned to the current case; and that she believe that the Hearing Officer cannot fairly decide her BSEA case because her attorney is part of a complaint against the Hearing Officer on an unrelated BSEA case.
SCHOOL’S POSITION
WRSD opposes Parents’ recusal motion. WRSD states that despite the submission of over 20 pages of pleadings, affidavits and argument, neither Parent nor Parents’ counsel have provided any specific factual basis to support their summary allegation that the Hearing Officer would be actually biased against the Parents in this case due to some presumed potential dissatisfaction with Parents’ attorney arising from her actions in an unrelated matter. WRSD contends that Parents have failed to offer or provide any legitimate factual basis upon which a reasonable man could conclude that the Hearing Officer would be biased against any party to the current matter; that such blanket, unsupported representation cannot serve as an appropriate basis for the recusal of any Hearing Officer; and that Parents are engaged in “judge shopping”.
ANALYSIS
The standards established specifically for a BSEA Hearing Officer are found within the federal special education regulations implementing the IDEA (20 USC §1400 et seq.) and the state regulations implementing the state special education statute (MGL c. 71B). When addressing the issue of due process and an impartial hearing officer, the federal regulations provide (34 CFR 300.508(a)):
1. A hearing may not be conducted-
(1) By a person who is an employee of the State agency or the LEA that is involved in the education or care of the child; or (2) By any person having a personal or professional interest that would conflict with his or her objectivity in the hearing.
Similarly, the state regulation at 603 CMR 28.08(3) provides:
Mediations and hearings shall be conducted by impartial mediators and hearing officers who do not have personal or professional interests that would conflict with their objectivity in the hearing or mediation and who are employed to conduct those proceedings.
The recusal standards for federal justices, judges and magistrates are found within 28 U.S.C. §455. Subsection (a) of §455 provides:
Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
The First Circuit Court of Appeals has explained that this statute “forbids partiality whether grounded in an ‘interest or relationship’ or a ‘bias or prejudice’; and it forbids not only the reality of partiality but its objective appearance as well.”1 The United States Supreme Court has similarly characterized subsection (a): “Quite simply and quite universally, recusal [i]s required whenever ‘impartiality might reasonably be questioned.’’’2 Although these statutory standards expressly apply only to justices, judges and magistrates, they may also be applicable to an administrative decision-maker.3
In addition, SJC Rule 3:09, Canon 3A, section 3(C)(1), requires a judge to recuse himself whenever “his impartiality might reasonably be questioned.” Circumstances where a judge’s impartiality might reasonably be questioned include instances where the judge “has a personal bias or prejudice concerning a party, has personal knowledge of disputed evidentiary facts concerning the proceeding, has served as, worked in a firm with, or been a material witness concerning the matter or has (or close family member has) a financial or other property interest in the proceedings that could be substantially affected by the outcome of the proceedings….” A comparison of these state standards with the above-described federal recusal standards indicates that the state and federal standards are substantially the same and both require an “objective appraisal” of whether the decision-maker’s impartiality might reasonably be questioned.4
The SJC has concluded that the state judicial recusal standards are equally applicable to a “disinterested person whose function is essentially judicial” – for example, a person holding a hearing, taking evidence and making findings of fact. The SJC has also explicitly found that these standards extend to administrative hearing officers, as well as masters, auditors and all other persons authorized to decide the rights of litigants.5 As such, these state standards apply to recusal of a BSEA Hearing Officer in the instant dispute; and by analogy, if not directly, the federal recusal standards also apply.
When considering recusal, a judge must consult first his “own emotions and conscience” to determine whether he is free from bias or prejudice.6 If the judge determines he is impartial, then he must objectively evaluate whether this was a proceeding in which “[his] impartiality might reasonably be questioned”.7 The decision-maker must make an objective, fact-based inquiry as to what a “reasonable man” would likely conclude, rather than simply inquire as to what may be in his or her own mind or that of the litigants.8 The First Circuit Court of Appeals has explained clearly this objective inquiry:
The statute requires a judge to step down only if the charge against him is supported by a factual foundation and the facts provide what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge’s impartiality.9
In addition, the alleged bias and prejudice to be disqualifying must rise from an extrajudicial source and not from something learned from participation in the case or by prior rulings fairly made that may be unsatisfactory to one party.10 Finally, in determining whether impermissible bias exists requiring recusal, the decision-maker is allotted a certain degree of discretion. Reversal on appeal occurs only upon a showing that the decision-maker abused this discretion.11 Case law shows that courts are generally reluctant to establish any criteria that automatically must result in recusal. Even where there may be significant potential for impermissible bias (either actual or by appearance), the recusal determination typically turns on the facts.12
The impartiality of a fact-finder, as well as the appearance of impartiality, is an essential element in conducting a fair hearing. BSEA Hearing Officers randomly are assigned to cases in rotating order as cases are filed with the BSEA. However, BSEA Hearing Officers do not take cases in the community where they reside or cases in which close family member may work for the town or school district. When necessary, Hearing Officers have sought the guidance of the Massachusetts Ethics Commission.13
RULING
After examining my own emotions and conscience in this matter as well as the complete record now before me, I conclude that I clearly will be able to preside over this matter without prejudice or bias towards either party. My rulings and decision shall be based solely on the evidence presented in this case and not on any unrelated issues or cases involving Parents’ attorney.
Further, I conclude that an objective, knowledgeable member of the public would find that these facts do not provide a reasonable basis for doubting my impartiality. While Parents’ attorney and Parent in the unrelated case will file or have filed a complaint against the Hearing Officer, the only thing that the Hearing Officer is aware of is that Parents’ attorney in this case did not prevail on behalf of Parent in the unrelated case. While the underlying purpose of the legal standards requiring recusal are to ensure not only the reality but also the appearance of an impartial dispute resolution process, there is also another essential consideration – the public interest in maintaining the integrity of the BSEA process for the assignment of Hearing Officers. In the words of then United States Court of Appeals for the First Circuit, Judge Stephen Breyer, now United States Supreme Court Justice Stephen Breyer:
When considering disqualification, the district court is not to use the standard of Caesar’s wife, the standard of mere suspicion…that is because the disqualification decision must reflect not only the need to secure public confidence through proceedings that appear impartial, but also the need to prevent parties from too easily obtaining the disqualification of a judge, thereby potentially manipulating the system for strategic reasons, perhaps to obtain a judge more to their liking.14
Relying on the cases cited above, the United States Court of Appeals for the First Circuit in FDIC v. Sweeney 136 F.3d 216, 219 (1 st Cir. 1998) held:
A party cannot force disqualification by attacking the judge and then claiming that those attacks must have caused the judge to be biased against [her].15
Based upon the above-cited cases, I conclude that granting Parents’ recusal motion under the facts and circumstances of this case would undermine the public confidence in and the integrity of due process proceedings before the BSEA.
Therefore, Parents’ and Student’s Motion For Recusal of the Hearing Officer is hereby DENIED .
By the Hearing Officer
Dated: November 6, 2008
______________________________
Raymond Oliver
1
U.S. v. Snyder , 235 F.3d 42, 45 (1 st Cir. 2000), quoting Liteky v. United States , 510 U.S. 540, 548 (1994).
2
Liteky v. United States , 510 U.S. 540, 548 (1994), quoting 28 U.S.C. §455 (a).
3
See Withrow v. Larkin , 421 U.S. 35, 46 (1975) (applying due process fair trial standards to an administrative agency).
4
Demoulas v. Demoulas Super Markets, Inc. , 428 Mass. 543, 546 n. 6 (1998) and cases cited therein.
5
Police Commissioner of Boston v. Municipal Court of West Roxbury District , 368 Mass. 501, 507 (1975); Beauregard v. Dailey, 294 Mass. 315, 324-325 (1936).
6
Haddad v. Gonazlez , 410 Mass. 571, 575, 862 (1976), quoting Lena v. Commonwealth , 369 Mass. 571, 575 (1976).
7
Haddad v. Gonzalez , 410 Mass. 571, 575, 862 (1976), quoting S.J.C. Rule 3:09, Canon 3 (C) (1).
8
Cigna Fire Underwriters v. MacDonald & Johnson , 86 F.3d 1260 (1 st Cir. 1996). See also the Massachusetts cases cited in footnote 15 above.
9
In re: United States , 666 F.2d 690, 695 (1 st Cir. 1981) (emphasis in original) (internal quotations omitted), quoted with approval in In re United States , 158 F. 3d 26 (1 st Cir. (1998).
10
Commonwealth v. Gogan , 389 Mass. 255, 259 (1983), Accord United States v. Grinnell Corp., 384 U.S. 563 (1966); see Demoulas v. Demoulas Super Mkts. , Inc., 424 Mass. 501, 524-525 (1997), S.C., 428 Mass. 543 (1998).
11
Herridge v. Board of Registration in Medicine , 420 Mass. 154 (1995); Haddad v. Gonzalez , 410 Mass. 855, 862 (1991). The federal First Circuit Court of Appeals explained it as follows:
[T]he analysis of allegations, the balancing of policies, and the resulting decision whether to disqualify are in the first instance committed to the district judge. And, since in any case reasonable deciders may disagree, the district judge is allowed a range of discretion. The appellate court, therefore, must ask itself not whether it would have decided as did the trial court, but whether that decision cannot be defended as a rational conclusion supported by [a] reasonable reading of the record. In re United States , 666 F.2d 690, 695 (1 st Cir. 1981); The matter of recusal is generally left to the discretion of the trial judge, see Care & Protection of Martha , 407 Mass. 319, 329 n. 10 (1990); Fogarty v. Commonwealth , 406 Mass. 103, 111 (1989).
12
See, e.g., In re United States , 158 F.3d 26 (1 st Cir. 1998) (“Typically, cases implicating section 455(a) are fact-specific, and thus sui generis.”)
13
Permission was received from the Commission and from both Parties to send a sympathy card and a small charitable donation to a Parent whose child had died.
14
In Re allied-Signal , Inc., 891 F.2d 987, 970 (1 st Cir. 1989) (emphasis in original), quotation cited with approval in Cigna Fire Underwriters v. MacDonald & Johnson , 86 F.3d 1260 (1 st Cir. 1996). See also United States v. Snyder , 235 F.3d 42, 45 (1 st Cir. 2000) (“the unnecessary transfer of a case from one judge to another is inherently inefficient and delays the administration of justice”; judges are not to recuse themselves lightly under § 455 (a)”); In re United States , 158 F.3d 26 (1 st Cir. 1998) (“recusal on demand would put too large a club in the hands of litigants and lawyers, enabling them to veto the assignment of judges for no good reason”); Camacho v. Autoridad de Telefonos de Puerto Rico , 868 F.2d 482, 491 (1 st Cir. 1989) (noting that the judicial system would be “paralyzed” were standards for recusal too low); Police Commissioner v. Boston , 368 Mass. 501, 508 (1975) (“judge or hearing officer in some circumstances unquestionably has a duty to resist a challenge to his impartiality which is tenuous, baseless or frivolous”).
15
See 13A Charles Alan Wright, Arthur R. Miller, Edward H. Cooper, Federal Practice and Procedure § 3542 at 577-78.