Lomas v. Kravitz: Motion for Recusal should be made immediately, if not sooner
The Pennsylvania Supreme Court ruled in Lomas v. Kravitz that a motion for recusal must be made as soon as the facts on which the motion is based come to light, or be forever barred.
James Kravitz breached a contract with Roy Lomas in Montgomery County (home of the largest mall in the United States) and had judgment of more than $200,000 entered against him. Lomas was represented during this time by a lawyer who is now Judge Branca of the Montgomery County Court of Common Pleas. For the next 25 years, Kravitz played cat and mouse with Lomas, leading to a lawsuit alleging Fraudulent Conveyance and attempting to pierce Kravitz’s various corporate veils. The Montgomery CCP entered judgment in Lomas’s favor, yet again, and set a hearing on damages, where Judge Branca testified regarding the reasonableness of his attorneys’ fees.
What should have been a routine line of questions got interesting, however, when Judge Branca revealed on cross-examination that he had an ongoing financial interest in the case in the form of a contingent referral fee, and that he had been in fairly routine communication with Lomas’s current trial counsel. Thirty-nine days later, Kravitz filed a motion to recuse the entire Montgomery CCP bench on the theory that any of them would be inclined to rule in favor of Lomas, given that their fellow Judge Branca stood to benefit from the outcome of the case.
This case’s tortured history includes an en banc split 4-4 at the Superior Court, which opinion was appealed and accepted by SCOPA for review.
Majority by Baer: What took you so long?
Judge Max Baer writes for the 4-1 majority and notes that it is well settled in Pennsylvania law that a motion for recusal “requires a party seeking recusal or disqualification to raise the objection at the earliest possible moment, or that party will suffer the consequence of being time barred.” (quoting Goodheart v. Casey, 523 Pa. 188 (1989)). Recusal decisions are reviewed by appellate courts on an “abuse of discretion” basis, and will only be reversed “where the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record.” (quoting Zappala v. Brandolini Prop. Mgmt., Inc., 589 Pa. 516 (2006).
Declining to set the precise moment at which trial counsel should have moved for recusal, the majority holds that his failure to so motion 1) immediately during cross-examination upon learning of the grounds for recusal, 2) at the close of the hearing, or 3) within the 30 days granted by the trial court for review of certain documents, fails the required timeliness standard. In addition, though unstated by the Court, one senses the length of time this matter has dragged on suggests that trial counsel had plenty of time to discover the facts that would have given him grounds for a motion of recusal.
Dissent by CJ Saylor: I would adopt the federal rules
Chief Justice Saylor dissents, arguing that the case presents “an appearance of impropriety,” and that the submission of trial counsel’s motion was not late. The Chief Justice says a motion for recusal should be made with “care and good faith,” and should only be offered in rare circumstances by counsel. The Chief Justice further suggests adoption of the federal rules’ 4-part test to determine the appropriateness of recusal. The majority responds to this latter point in their final footnote, stating, “we are circumspect to adopt and apply a new test in this case, particularly when the parties offer no advocacy in this regard.”
Conclusion: Recusal is always a long-shot
A few clean-up notes: Justices Donohue and Wecht did not participate in the case, and with a Superior Court judge’s non-participation, that makes three judges who did not participate in the case. Unfortunately for Kravitz, the one judge who will still be participating is the trial judge below, and there may be no place more uncomfortable for a litigant than standing before the judge that you attempted to force recusal on.
Recusal is always a long-shot. The Supreme Court’s opinion makes clear in this case that it will only reverse for a clear abuse of discretion, the highest standard of appellate review in Pennsylvania. Judges also may be circumspect to question each other, and such motions are generally disfavored. But when the motion is appropriate, it must be made immediately and without delay to avoid forfeiture.