A Recusal Circus

March 3, 2015 § 22 Comments

I posted here before about the confusion spawned in Boatwright v. Boatwright when the chancellor recused himself after entering a final judgment in 2009, but before ruling on the R59 motion.

The case landed in the lap of the other sitting chancellor in the district, who refused to rule on the R59 motion because he had no knowledge of the case. He opined that the better course of action would be for the lawyers to take an appeal. And that is what they did.

The COA ruled in 2011 that the second chancellor should have ordered a transcript and gained enough knowledge of the case to enable him to decide the R59 motion. The case was reversed and remanded with instructions.

Now, apparently, six years after the original judgment that birthed this controversy, the parties are back on appeal before the COA.

This time, though, five (5) of the COA judges have recused themselves. Since six are needed for a quorum, what exactly is to be done to allow the Boatwrights their (latest) day in court? Jane Tucker tells us on her blog.

I don’t recall a case in which six judges recused themselves. The order does not reveal reasons for the recusals.

It would definitely have entertainment value, however, if the remnant of the COA deciding the case were to remand the case again, only to have the chancellor recuse himself. There is a new chancellor now in that district, which opens the possibility that he could recuse himself, too. Or, he could hear the case, have it remanded yet again, and then recuse himself on remand. That’s probably too much to hope for. The law is seldom that entertaining.

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§ 22 Responses to A Recusal Circus

  • […] The legal travails of Toulman and Grace Boatwright have been chronicled here before. […]

  • John Shirley says:

    On reason listed for requesting recusal is “Certain members of SRHS’s law firm were heavily involved in supporting Chancellor Harris’ election opponent and occupied leadership positions in the campaign.”

    If the appellate court deems that reason justifiable for the mandatory recusal of a judge, that appellate decision will send a message of “if you don’t like a judge, simply campaign against him/her and you will ensure a mandatory recusal for future cases.” Hopefully, the appellate court will deny that as a valid reason for recusal.

  • Bob Wolford says:

    There’s a nasty recusal issue pending over in Jackson County- the hospital over there, Singing River Health System, is embroiled in litigation with retirees and current employees over the hospital’s pension plan (hospital is county owned and run by a board of trustees appointed by the county board of supervisors). Numerous lawsuits against the hospital were filed in the local chancery court and assigned to a judge. Hospital removed the cases to federal court based on federal question (ERISA laws governing pensions), federal court bounced the cases back to chancery, and now the hospital is wanting the chancellor to recuse himself because, among other things, the chancellor and his family are embroiled in a land matter against Jackson County that has made its way to the MS Supreme Court. The other 2 chancellors recused themselves, but this particular chancellor is not budging and intends to stay on- even appointed a local attorney as a special master to hear the recusal arguments, and the special master sided with the judge. Case is now, I believe, pending before the MS Supreme Court. For the life of me, I do not see how this chancellor can stay on the cases pending against the county-owned hospital. Guess we’ll find out in due course.

  • Jane Tucker says:

    I wondered if maybe they aren’t just tired of Mr. Boatwright. And I can’t help but feel that all the money being wasted here could have been put in the kids’ college funds.

  • randywallace says:

    Judicial trivia. Anyone remember the case where 6 justices of the MSSC recused? The Governor appointed 2 special justices to reach the required quorum of 5.

    • Jane Tucker says:

      It just occurred to me there was a case involving judicial pensions. Publ. Employees’ Retirement System v. Hawkins, 781 SO.2d 899 (Miss. 2001). Is that the one you are thinking of? The governor appointed Charles Clark, Bill Allain, Frank Montague, Jr., Guthrie Abbott and Claude F. Clayton, Jr.

      • randywallace says:

        They all recused in the retirement case. I was referring to the case of Titan Indem. Co. v. Hood, 895 So. 2d 138 (Miss. 2004). Titan is memorable for another reason. The jury initially returned a verdict for $75 BILLION, but after further questioning by the judge it was determined they really meant $75 million. Ooooops.

      • thusbloggedanderson says:

        You say billion, I say million … let’s call the whole thing off!

    • thusbloggedanderson says:

      The PERS case. Guth Abbott got to play justice, IIRC.

  • reidkrell says:

    Here’s my thought: the appellant in Boatwright spends about thirty pages circling the drain, arguing that failing to recuse based on half a dozen hunting trips and a social relationship between opposing counsel and the chancellor is such a manifest error to require reversal. There’s no actual showing of error or prejudice, so…I think the result is pretty straightforward.

    But since the appellant is making so much hay out of a social relationship (and seriously, if judges recused every time they saw a lawyer they socialized with, we’d have no judges), I can see the COA going, “let’s take this argument out of the picture.” So every judge who has even a nodding acquaintance with the interested parties recuses.

    It’s a pretty story I tell; but I have absolutely no data to support it. Anybody who knows anything about the relationships on the COA would be welcome to contradict or confirm me.

    • thusbloggedanderson says:

      Without reading the brief: (1) if the relationship was undisclosed, yeah, that’s a real problem; (2) chancery proceedings rely so much on an abuse-of-discretion standard, good luck proving bias.

      I greatly respect the judges who start off by saying “I believe I’m impartial, but here’re the facts, & if any party prefers I recuse, I will gladly do so.”

      • reidkrell says:

        I disagree on the disclosure issue because again, the relationship was between the judge and the lawyer. A relationship between judge and party? Absolutely a problem. But judge and lawyer? No one’s explained to me how we’re supposed to have a functioning bench with the standard the appellant wants.

      • thusbloggedanderson says:

        I guess I’ll have to read the brief. But I gather, then, that campaign contributions by (say) Butler Snow to a judge are no concern to opposing counsel? I’ve had a judge recuse because his relative works in my firm – mistaken?

      • Larry says:

        The standard for recusal is that a judge should recuse if his impartiality can be questioned by a reasonable person knowing all of the relevant facts. UCCR 1.11. Also, Canon 2B of the Code of judicial Conduct prohibits a judge from letting “family, social, or other relationships” from influencing their actions.

      • thusbloggedanderson says:

        So I don’t see why relationships with lawyers can’t factor in. Judges talk about losing social contacts with lawyer-friends after taking the bench, right? (Again, haven’t read brief re: this case, not pronouncing on its facts.)

      • Larry says:

        Yes, relationships between lawyers and judges do factor in. If you’ll go back and read the McClendon gdn decision involving atty Michael Brown, one of his grounds for appeal was the social relationship between Chancellor Thomas and an atty in the case. He got nowhere with the point even though the judge and atty had a pretty substantial friendship.

      • thusbloggedanderson says:

        Yet another reason I’d be a good judge – so few friendships!

  • thusbloggedanderson says:

    What changed since 2011?

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