Judge Not Required to Recuse Himself Despite Litigant’s Appeal

Agnes McCurry was a party to two cases before Washington County, Tennessee, Judge D. Kelly Thomas, Jr., an order for protection case and a case in which she had been found in criminal contempt.  She believed that Judge Thomas was biased against her and was unable to be impartial.  Among other things, she alleged that this bias arose from a federal lawsuit she filed against him.

Judge Kelly denied both motions (as he had denied previous motions in the case filed by her).  In denying the motions, the judge denied any bias, and denied knowledge of the case, other than the record before him.

Dissatisfied by this turn of events, she then appealed to the Tennessee Court of Appeals.  The appeals court began by pointing out that all litigants have the right to an impartial judge, and that appearance of bias is just as bad as actual bias.

Judges have a duty to recuse themselves if there is any doubt as to their impartiality, but the burden of proof is upon the party seeking their removal.

In this case, she had offered affidavits in support of her motion, but the appeals court pointed out that those affidavits contained few facts in support of her allegations.  She claimed there was “new evidence” of “corruption,” but failed to identify just what that evidence was.

The appeals court did find the federal lawsuit involving the Judge, but held that the existence of this case (which also involved other judges) did not, by itself, warrant recusal.  It pointed out that if this were the rule, parties could force recusal of a judge at any time, simply by filing a lawsuit in another court.

She also argued that she didn’t like the judge’s “attitude,” but pointed to no evidence in support of this allegation.

Finally, she argued that the judge hadn’t let her “give evidence,” but the appeals court pointed out that mere adverse rulings were insufficient to warrant recusal.

For these reasons, the Court of Appeals affirmed, and sent the case back to Judge Thomas’s court.

No. E2024-01719-COA-T10B-CV (Tenn. Ct. App. Jan. 2, 2025).

See original opinion for exact language.  Legal citations omitted.

To learn more, see The Tennessee Divorce Process: How Divorces Work Start to Finish.