Some Ins and Outs of Recusal
August 13, 2018 § 3 Comments
Elle Adams filed a federal suit against the chancellor in her custody/contempt case, and, on the eve of trial filed an “emergency motion” for recusal, reasoning that the judge would be biased against her because of the suit. Elle also made other accusations against the chancellor.
In its June 12, 2018, decision in Adams v. Rice, the COA by Judge Barnes rejected Elle’s arguments. Since the opinion is a nice précis on the law of recusal, I am excerpting it here:
¶15. Elle argues that the chancellor should have recused herself because Elle had filed a federal lawsuit and judicial complaint against her alleging bias, discrimination, and misconduct. [Fn omitted] Elle reasoned that her legal actions against the chancellor would make her “even more biased” and “incapable of making appropriate decisions”; thus, recusal was necessary.
¶16. Mississippi Rule of Appellate Procedure 48B explains the proceedings on a motion to disqualify the trial judge. If a trial judge denies a motion seeking his or her recusal, the movant may seek review of the judge’s action by the Mississippi Supreme Court. Id.
¶17. The day before the hearing, Elle filed a pro se emergency motion to recuse the chancellor before the supreme court, making many of the same allegations as on appeal. Additionally, she argued that the chancellor’s “hostile acts” infringed upon her civil rights because she was denied a Spanish interpreter at the March 31, 2016 hearing. Further, she claimed the chancellor and her attorney had “ex parte communication” which was “disparaging and inappropriate,” questioning her ability to understand English, among other matters. The Mississippi Supreme Court dismissed the motion the same day, without prejudice, because Elle had failed to first seek recusal from the chancellor herself before asking for the supreme court’s review and failed to serve the chancellor with the motion. [Fn omitted]
¶18. The rule concerning disqualification of a judge is contained in Canon 3(E)(1)(a) of the Mississippi Code of Judicial Conduct. It states that “[j]udges should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances . . . including but not limited to instances where . . . the judge has a personal bias or prejudice concerning a party . . . .” The Mississippi Supreme Court has held “that the objective reasonable person knowing all of the circumstances is the proper standard” to determine if a judge should have recused herself. Dodson v. Singing River Hosp. Sys., 839 So. 2d 530, 532-33 (¶9) (Miss. 2003). “[R]ecusal is required when the evidence produces a reasonable doubt as to the judge’s impartiality.” Id. at 533 (¶13). However, it is presumed that judges are qualified and unbiased. Id. at (¶10). The appellate court applies a manifest-error standard when reviewing a judge’s refusal to recuse. Sullivan v. Maddox, 122 So. 3d 75, 81 (¶15) (Miss. Ct. App. 2013) (citing Bredemeier v. Jackson, 689 So. 2d 770, 774 (Miss. 1997)).
¶19. Elle claimed the chancellor made disparaging comments about her and her family in open court and “ex parte communication” with one of Elle’s numerous attorneys before the chancery court. Also, apparently because of the chancellor’s unfavorable ruling, Elle claims that the chancellor had an “unconscious bias” against her as exhibited at the March 31 hearing (which Elle did not attend). Further, Elle argues that the chancellor could not be impartial knowing that Elle had filed a federal lawsuit and state bar complaint against her. Elle requests the judgment against her be reversed due to the alleged evidence of bias.
¶20. At the March 31, 2016 hearing, the chancellor acknowledged for the record that while she had not been served with a federal lawsuit, she was aware that Elle had filed one in Alabama against her, John, and the cities of Starkville and Columbus, Mississippi. The chancellor stated for the record that she read the complaint but found it proper to move forward with the hearing.
¶21. After reviewing the transcripts, we do not find that the chancellor made any disparaging personal comments about Elle. Nor did the transcript indicate any evidence of bias towards Elle, who failed to attend two hearings; one on motions that she filed on March 22, and the final hearing on March 31. However, the chancellor did find Elle’s “attempts to manipulate the judicial system . . . appalling.” We cannot say that it was disparaging or prejudicial that the chancellor reprimanded Elle on the record for not pursuing her own defense. Moreover, Elle did not file a motion to recuse the chancellor in the chancery court even after the Mississippi Supreme Court entered its order. Accordingly, the issue is barred.Further, there is no evidence that the chancellor’s impartiality might be reasonably questioned; therefore, the issue is also without merit.
Not mentioned in the opinion is Uniform Chancery Court Rule 1.11, which spells out the procedure required to move for recusal:
Any party may move for the recusal of a judge of the chancery court if it appears that the judge’s impartially might be questioned by a reasonable person knowing all the circumstances, or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law. A motion seeking recusal shall be filed with an affidavit of the party or the party’s attorney setting forth the factual basis underlying the asserted grounds for recusal and declaring that the motion is filed in good faith and that the affiant truly believes the facts underlying the grounds stated to be true. Such motion shall, in the first instance, be filed with the judge who is the subject of the motion within 30 days following notification to the parties of the name of the judge assigned to the case; or, if it is based upon facts which could not reasonably have been known to the filing party within such time, it shall be filed within 30 days after the filing party could reasonably discover the facts underlying the grounds asserted. The subject judge shall consider and rule on the motion within 30 days of the filing of the motion, with hearing if necessary. If a hearing is held, it shall be on the record in open court. The denial of a motion to recuse is subject to review by the Supreme Court on motion of the party filing the motion as provided in M.R.A.P. 48B.
Elle never filed such a motion in the trial court.
In Rogers v. Morin, 791 So. 2d 815, 821 (¶13) (Miss. 2001), the court held that a chancellor was not required to recuse after he remarked in a hearing that he believed that the appellant had no credibility. Weighing credibility is, after all, what chancellors do. If we were required to recuse every time we made that determination, there would be chaos.
It’s troubling to me when litigants try to manipulate the system to their advantage by making attacks on the judge assigned the case. Here, Elle tried to create grounds for recusal by filing the federal lawsuit and the judicial-performance complaint. The chancellor rightly characterized the efforts as “appalling.” I could not agree more.
It’s troubling to me when anyone, seeking to advance their own agenda, attacks the judge and the ruling and tries to negate it rather than pursuing appeal.