Judge Recusals May Hinder Gulf Oil Spill Lawsuits

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Lawsuits over the Gulf oil spill are flooding the courts. Homeowners, fishermen and environmental groups are all trying to recover damages they suffered because of the gusher.

But victims of the spill are beginning to encounter a new complication: judges who can't hear their cases because of conflicts of interest.

In the past, lawyers often complained when judges refused to step aside from cases in which they had a financial or personal interest.

That process is called recusal. The federal court bureaucracy doesn't keep data reflecting how often this happens.

But legal expert Richard Flamm, who wrote a critical text on judge disqualifications, said the current protest cut against the grain. "Most of the time the complaint about judges is not that they recuse themselves too readily, or en masse, but that they refuse to recuse themselves when they should do so."

Lately, the opposite problem is coming into play.

The federal appeals court in New Orleans recently said it couldn't decide a major global warming case because eight out of 16 judges stepped aside for one reason or another.

Northwestern University law professor Steven Lubet said he's never heard of such a thing. "This is an extremely unusual situation where half of the judges in the full circuit have disqualified themselves," Lubet said.

Lawyers who handle high-stakes cases are baffled. The appeals court case in New Orleans was at the forefront of a wave of lawsuits over climate change. Now, there's confusion about where the lawsuit stands, and how the issue may get to the U.S. Supreme Court for an ultimate resolution.

Trent Taylor, a lawyer who works on environmental issues, said the sheer number of companies involved in the climate change case most likely knocked out a lot of judges. "We're talking about 50 to 100 separate defendants, including some of the largest corporations in America," Taylor said. "It's something where a great number of Americans including judges own stock."

The rules on judicial disqualifications are clear.

Judge Margaret McKeown recently explained the issue to Congress. "Even owning a single share of stock in a party mandates recusal," McKeown told the House Judiciary Committee last year.

Congress put the rules in place after Watergate. Since then, there have been few changes.

Lawyers predict the troubles will continue in the oil spill cases. At least seven federal judges in New Orleans already have stepped aside from handling oil spill lawsuits. That leaves only a handful of others at the courthouse who could hear these landmark disputes.

Some of the judges recused themselves because their relatives are working on the issues. Others say they own stock in BP, Halliburton and Transocean — companies that are at the center of the sunken rig.

Taylor said there could be another explanation for the disqualifications: There are multiple class action lawsuits being filed on behalf of homeowners. "A great number of these judges may be property owners in that area," Taylor said. "So theoretically it means a great number of judges in this area are actually potential plaintiffs."

The recusal issue has even surfaced in the nation's highest court. Two years ago, the Supreme Court refused to weigh in on a lawsuit filed by victims of apartheid in South Africa, because too many justices said they couldn't hear the case.

Several justices own substantial stock holdings. And others have children who work for major corporations, including some that did business in the country during the apartheid era.

The decision meant that a lower court ruling would stay in place.

Experts say if more judge recusals arise in the Gulf, the courts eventually may have to move the cases to another part of the country. Lawyers are floating proposals to send the cases to Alabama, Mississippi or even to a judge based in New York.

But that would add another layer of inconvenience to victims of the spill.

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