Thoughts on Oliver

June 11, 2019 § Leave a comment

We talked yesterday about the Oliver estate case and the appellant’s allegations that the chancellor was biased and should have recused herself. Here are some ruminations:

  • The chancellor is presumed to be impartial, qualified, and unbiased, and the burden is on the party moving to overcome the presumption by proof beyond a reasonable doubt. The appellate courts have described this as a “heavy burden.”
  • If you will read the facts in Oliver, Sandra was not only warned by the judge not to file scandalous, impertinent, and even libelous material in the action, but the chancellor even sanctioned her. No doubt the chancellor became exasperated with Sandra’s conduct. But exasperation and impatience do not equate to bias or prejudice.
  • You won’t have much success in getting a judge to recuse if you wait until after an adverse ruling to ask for recusal.
  • UCCR 1.11 imposes deadlines on when you must file a motion to recuse. It must be filed within 30 days of the date when the parties are notified of the judge assigned to the case, or within 30 days of the date when the party first learns of a basis to seek recusal, if that information was not known to the movants when they learned the identity of the judge.
  • Note the language from Tubwell cited in ¶108: ” Where the party knew of the grounds for the motion or with the exercise of reasonable diligence may have discovered those grounds, and where that party does not move timely prior to trial, the point will be deemed waived” [my emphasis]. So that language in UCCR 1.11 about information not known to the movant needs to be understood as meaning not only not known, but also not known after exercising reasonable diligence.
  • Sandra also argued that her filing of a judicial performance complaint against the judge mandated that the judge recuse herself. Our appellate courts have not favored litigants creating their own grounds for recusal in that fashion. In the cited Adams case, the appellant tried to oust a judge she didn’t like by filing suit against her in federal court, and by filing bar and judicial complaints. It didn’t work.
  • If you want to charge a judge with being combative, antagonistic, discourteous, and adversarial, as Sandra tried here, your blueprint is the Smith v. Bermudez case cited in ¶112.

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