Recuse, Recusal

[Baker, John]

        William Safire's Sunday column includes a discussion of "recuse,"
meaning to disqualify (oneself) in a particular case because of prejudice or
conflict of interest.  The term traditionally has applied to judges, but
over the past 20 years or so it has become common for public officials,
especially prosecutors, to recuse themselves, as Attorney General Ashcroft
has done in the Enron investigation.  Safire mentions that the OED will cite
a use in a Louisiana court in 1829.  That may be this case, which was in the
June Term, 1828, but possibly was not handed down until 1829:

        >>[This action] was commenced in the court of probates; but the
judge of that court having a knowledge of the facts which required his
testimony as a witness, he recused himself; and the case, by consent of
parties, was transferred to the district court.

        . . . .

The law which disqualified the judge of probates because he was a witness,
has been repealed at the last session of the legislature, and the case can
now be tried in the court where it originated.  Acts of 1828, p. 152, sec.
5.<<

Balsineur v. Bills, 7 Mart. (n.s.) 105 (La. 1828).

        An earlier case takes the term back to 1817, though not in the
reflexive form ("recused himself") common today:

        >>A judge cannot be recused because his wife is collaterally related
by consanguinity to the wife of a party to the suit.

        . . . .

        The law authorizes the recusation of a judge, who is related to
either of the parties, in the fourth degree of the collateral line.<<

Poydras v. Livingston, 5 Mart. (o.s.) 292 (La. 1817).  The first line is
from the headnote, which might have been added later.  The opinion refers to
the 24th section of the act of 1817, which presumably would be the real
antedating.  I don't have that old statute.  The modern one appears to be
article 151 of the Louisiana Code of Civil Procedure.

        The fact that the modern use of "recuse" apparently originated in
Louisiana is significant because Louisiana, unlike the other 49 states, is
not a common law jurisdiction.  In other states, law is based upon English
common law; that is, it gradually evolved from the decisions of English
judges over the centuries.  Louisiana is a civil law jurisdiction, and its
law derives from written codes.  (You may recall Stanley Kowalski explaining
in A Streetcar Named Desire that Louisiana has the Code Napoleon.)

        The term "recusation," used in the 1817 opinion, appears to be
common in Louisiana law, but elsewhere we speak of a "recusal," a term that
is much newer than I would have supposed.  The OED takes it back only to
1958.  I can antedate it to 1949/50:

        >>On the 13th of April [1949], Judge Longshore filed an order of
recusal accompanied by an order vacating his former order with request that
Judge DeBardelaben, his Associate Judge, take cognizance of said order and
act thereon as he might see fit.<<

Methvin v. Haynes, 254 Ala. 58, 46 So. 2d 815 (1950).


John Baker