Tennessee Judge Not Required to Dismiss Himself Despite Relationships

Tennessee law case summary on judge’s recusal procedure in Tennessee divorce and family law from the Tennessee Court of Appeals.

Kathryn A. Duke v. Harold W. Duke, III – Majority Opinion on Recusal of a Judge

Kathryn A. Duke, the wife and Harold W. Duke, III, the husband, were granted a final divorce decree on July 15, 2009.  There was an appeal on parts of the decision and, at the same time, both parties filed for contempt and modification of the parenting plan.   In January 2010, the case was assigned to a trial judge.

Three weeks later, the husband filed a motion to recuse or disqualify the judge from the case.  The husband argued that in 2005, the judge’s former law partner had briefly represented the wife while the judge was still a partner in the firm.   The trial court rejected the motion and the husband did not appeal.   The post-divorce proceedings on contempt and modification of the parenting plan were tried and completed in March 2012.    In July 2012, the husband filed a motion to reopen the case due to new evidence.  The trial court denied this request.

In August 2012, the husband filed a “Renewed Motion for Recusal.”   He based his claim on the same arguments used in his request from 2010, as well as new Rules of Judicial Conduct (Tennessee Supreme Court Rule 10B § 2.01), which came into effect on July 1, 2012, and on the appellate court’s denial of his appeal in June 2012.  He also claimed the trial court’s post-divorce decision showed impropriety, bias and prejudice that could be linked to the former relationships between the judge, the former partner and the wife.  The trial court rejected this new motion for recusal and the husband appealed.

Majority v. minority : should the appeal be considered?

The new rules of judicial conduct, found in Tennessee Supreme Court Rule 10B § 2.01, give a person the right to appeal a request to disqualify a judge.  This rule applied prospectively, that is, only to motions filed after the law came into effect.  The majority opinion held that the appeal should be considered, since it was a new petition filed after the case ended.

The majority opinion also held that refusal to hear the appeal defeats the purpose of the law, which allows a litigant to raise the issue of recusal going forward in the case.  The example given involved a litigant who asked a judge to recuse himself because of the judge’s business relationship with the other party.  The judge denied the request.  Later on, based on the new rule, and the ongoing business relationship between the judge and the other party, the same original petitioner, according to the majority, may be permitted to file a new petition.

The court argued that a petitioner is prevented from using the impartiality issue to manipulate the court, for example, by waiting to raise this objection at the most opportune time rather than at the earliest time.  In this case, the husband was not manipulating the court since he raised the issue early on (and his petition was denied).  The majority also found that the standard of review at the time was more favorable to the court.  For these reasons, the appeals court concluded that the husband was not “engaging in impermissible strategic conduct.”

The majority also held that the law itself guarantees the right to appeal later.  The law states that if the party doesn’t immediately appeal the request for recusal, this does not mean that he has waived his right to appeal later on.   Specifically, the person has the right to appeal even after the case is concluded.

In contrast, the minority opinion held that this new petition to recuse was simply a renewal of the husband’s original motion to recuse from 2010, which he did not appeal at that time.   The minority held that “refiling a denied recusal motion, on the same grounds, and labeling it “Renewed” does not suffice to bring it within Tenn. Sup. Ct. R. 10B.”

Appeals Court Denies Husband’s Request for Tennessee Trial Judge’s Recusal

The husband raised two issues for his claim for recusal.  Firstly, the trial judge and another lawyer in the firm where he was a partner, met with the wife for about an hour to discuss whether or not to represent her in her divorce case.  Secondly, the trial judge represented Jennifer Lineberger in 2006 in her divorce case, and she was the husband’s lover, playing a large part in the divorce between the husband and wife.

The law states that a judge should recuse himself “in any proceeding in which the judge’s impartiality might reasonably be questioned.”  The law includes (but does not limit) possible circumstances, such as when the judge has “personal knowledge of facts that are in dispute” or if the judge “served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter during such association.”

The court held that there was no lack of impartiality based on the above criteria.  The court disagreed with the husband that the judge’s earlier decisions in the post-divorce matters showed “impropriety and bias.”  The court, based on court precedent, held that a judge’s decisions in a case are not enough to prove that he is biased or prejudiced.  Following the trial judge’s one hour meeting with the wife, he told her he could not represent her and his partner, after her meeting with the wife, also did not take her on as a client.  The trial judge had no other communication with the wife, never received any documents from her and was not involved in any direct or indirect way with her legal matters.  Other courts previously held that there is no proof of bias just because a trial judge was in a partnership with a lawyer who met with one of the parties.  The courts also require the lawyers’ specific relationship to be considered, including the extent of the lawyers’ association and the length of time since the association ended.

Finally, the appeals court sites the trial judge himself.  He argued that his association with the wife was limited and his involvement with the husband’s lover ended in 2006.  He held that an objective person would find that there was no prejudice or bias here.  The appeals court agreed, and held that the husband “failed to establish that the trial court’s impartiality may reasonably be questioned or that the trial court has a bias or prejudice” in regards to the husband.  The appeal was denied.

No. M2012-01964-COA-10B-CV (Tenn. Ct. App. Oct. 2, 2012).

See original opinion for exact language.  Legal citations omitted.

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