Motion to Recuse must be prompt.
Facts of the case leading to motion for recusal:
Anthony Hargis was tried by a Union County jury, and he was convicted
of several crimes relating to the unlawful manufacture of methamphetamine.
Following the denial of his motion for new trial, Hargis appealed, asserting
seven claims of error, including that the trial judge was disqualified by her
receipt of an ex parte communication and, therefore, should have recused, and
that the trial court erred when it denied a motion to suppress evidence of a
similar transaction. In Hargis v. State, 319 Ga. App. 432 (735 SE2d 91) (2012),
the Court of Appeals agreed that the trial judge should have recused, it agreed
that the motion to suppress should have been granted, and it reversed the
judgment of conviction upon these grounds without reaching the other claims
Uniform Superior Court Rule 25.1 provides:
All motions to recuse or disqualify a judge presiding in a particular case or proceeding shall be timely filed in writing and all evidence thereon shall be presented by accompanying affidavit(s) which shall fully assert the facts upon which the motion is founded. Filing and presentation to the judge shall be not later than five (5) days after the affiant first learned of the alleged grounds for disqualification, and not later than ten (10) days prior to the hearing or trial which is the subject of recusal or disqualification, unless good cause be shown for failure to meet such time requirements. In no event shall the motion be allowed to delay the trial or proceeding.
Decision of Supreme court on Motion to recuse:
When a party learns of grounds for the potential disqualification of the
judge, he must promptly move for the recusal of the judge. If he does not, the question of disqualification is not preserved for appellate review. In re Adams, 292 Ga. 617, 617 (1) (740 SE2d 134) (2013). See also Woodall v. State, ___ Ga. ___ (9) (Case No. S13A1564, decided January 27, 2014). Here, the record shows that Hargis never filed a motion to recuse, even after he had knowledge of the grounds for potential disqualification. Asserting a disqualification in a motion for new trial before the same judge who is alleged to be disqualified — without also asking the judge to recuse from hearing the motion for new trial — is not a proper means of raising and preserving the issue. See Christensen v. State, 245 Ga. App. 165, 172 (11) (537 SE2d 446) (2000) (“An extraordinary motion for new trial based upon newly discovered evidence is an improper vehicle to raise a motion to recuse; a motion to recuse can only be raised pursuant to [Uniform Superior Court Rule 25.1], which incorporates by rule approved by the Supreme Court the procedures to be followed in all cases of recusal.”).
Even after Hargis learned of the grounds for the potential disqualification of the trial judge, he apparently decided to take his chances with the same judge on his motion for new trial. That was his choice to make, but he could not do so and still preserve the disqualification issue for review in the appellate courts.
To hold otherwise would be to sanction gamesmanship. See, e.g., White v.
National Football League, 585 F3d 1129, 1141 (II) (B) (8 th Cir. 2009) (“A
motion to recuse should not be withheld as a fallback position to be asserted
only after an adverse ruling.”); State v. Jenson, 440 NW2d 686, 688 (Neb. 1989)
(“One cannot know of improper judicial conduct, gamble on a favorable result
by remaining silent as to that conduct, and then complain that he or she guessed
wrong and does not like the outcome.”). Moreover, the requirement that a
motion to recuse be filed promptly is intended to promote judicial economy, that
is, to ensure that “long and costly proceeding[s]” before a disqualified judge are
avoided. See Pope v. State, 257 Ga. 32, 35 (2) (b) (354 SE2d 429) (1987)
(citation and punctuation omitted). See also LoCascio v. United States, 473 F3d
493, 497 (2d Cir. 2007) (“[A] prompt application [for recusal] affords the
district judge an opportunity to assess the merits of the application before taking
any further steps that may be inappropriate for the judge to take.”
The idea that a party could allow a judge whom the party believes to be disqualified to continue to preside over the case without objection, only later to urge the disqualification, is inconsistent with the principles of fair play and judicial economy that are embodied in the requirement that a motion to recuse be filed promptly.
Source: Georgia v. Hargis
(Supreme Court of Georgia, USA)