When is Recusal Required in a Contempt Case?
June 25, 2019 § Leave a comment
Shanna Hayes was found in constructive criminal contempt by the chancellor for refusing to allow her ex-husband his court-ordered visitation. On appeal, she argued that the judge erred by not recusing himself. In the case of Hayes v. Hayes, decided May 7, 2019, at ¶27, the following statement appears:
“We do find that she was in a position to request that the trial judge recuse himself; rather, she waived that opportunity. Shanna admittedly did not object until after the trial court rendered its decision. In fact, Shanna allowed the trial court to adjudicate her rights and failed to file a motion asking the judge to recuse. “The failure to seek recusal generally is considered implied consent to have the judge go forward in presiding over the case.” Latham v. Latham, 261 So. 3d 1110, 1113 (¶9) (Miss. 2019) (citing Rice v. State, 134 So. 3d 292, 299 (¶16) (Miss. 2014)); see also Tubwell v. Grant, 760 So. 2d 687, 689 (¶8) (Miss. 2000) (holding 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). Therefore, we take the same position as the majority court in Latham and find that because Shanna failed to object to the judge’s recusal and preserve the issue for appeal, any assignment of error relative to that issue is waived. See Latham, 261 So. 3d at 1115 (¶20).”
To me, that statement is somewhat misleading. It appears to suggest that you have the right in every constructive criminal contempt case to ask the court to recuse. If that’s what it is trying to say, that’s inaccurate, as we will see. But first, let’s consider the two species of criminal contempt. There is direct criminal contempt, which is contemptuous conduct committed in the presence of the court, and it may be dealt with immediately. And there is constructive criminal contempt, which is contemptuous conduct that occurs outside the presence of the court, and it requires that the defendant be given notice of the alleged misconduct and a hearing.
Most constructive contempt occurs between the parties, as above when Ms. Hayes denied her ex his visitation rights. It doesn’t make any sense that a judge should have to recuse in that kind of case. But what about where the judge generates the case? A possible example might be where a deputy overheard an angry litigant in the hallway, outside the judge’s presence, mutter to a friend, “I’m going to kill that judge for that,” and the deputy reports it to the judge, who initiates a contempt action.
Justice Maxwell, wrote a helpful specially concurring opinion in the MSSC’s Latham v. Latham, decided January 17, 2019, in which he fleshes out the distinction:
¶27. I agree with the majority that, by not requesting that the chancellor recuse, Roger has waived this issue on appeal. But given Roger’s argument, I find it would be helpful to Roger—as well as the bench and bar—to explain why, in this particular constructive criminal-contempt case, Roger had to request the chancellor recuse to preserve this issue.
¶28. Part of Roger’s argument is that recusal could not be waived. He suggests it was the chancellor’s duty to recuse sua sponte given the nature of the contempt. As Roger sees it, our caselaw mandates judges recuse in every case involving constructive criminal contempt. Roger’s view hinges on his reading of two cases—Cooper Tire & Rubber Co. v. McGill, 890 So. 2d 859, 868 (Miss. 2004), and In re Smith, 926 So. 2d 878, 888 (Miss. 2006). He argues that, when read together, the cases “extend” the requirement to recuse sua sponte in any case involving constructive criminal contempt. But a closer look shows that neither case alters this Court’s well-established standard for when a judge must recuse in a constructive criminal-contempt case. Instead, both cases maintain that “[i]t is necessary for that individual to be tried by another judge in cases of constructive contempt where the trial judge has substantial personal involvement in the prosecution.” Smith, 926 So. 2d at 888 (emphasis added) (quoting In re Williamson, 838 So. 2d 226, 238 (Miss. 2002)); see also Cooper Tire, 890 So. 2d at 869.
¶29. In other words, it is not simply the nature of the contempt that mandates recusal. Indeed, the constructive criminal nature of the contempt is just part of the inquiry. The judge must also have “substantial personal involvement in the prosecution” to trigger the due process requirement that the matter be tried by another judge. Corr v. State, 97 So. 3d 1211, 1215 (Miss. 2012) (quoting Graves v. State, 66 So. 3d 148, 151 (Miss. 2011)). “Examples of ‘substantial personal involvement in the prosecution warranting recusal include cases where the trial judge acts as a ‘one-man grand jury;’ where the trial judge is ‘instrumental in the initiation of the constructive-contempt proceedings;’ and where the trial judge ‘acts as prosecutor and judge.’” Id. (quoting Graves, 66 So. 3d at 154). E.g., Corr, 97 So. 3d at 1215 (holding that the chancellor had substantial personal involvement because he initiated the contempt proceeding when he issued show-cause orders); In re Williamson, 838 So. 2d at 238 (holding that the chancellor had substantial personal involvement because he was a material witness in the contempt proceeding).
¶30. Here, Roger does not even argue the chancellor had substantial personal involvement in the prosecution of the contempt proceeding—a proceeding admittedly initiated by his wife. Nor does the record support such a finding. So the chancellor was not required to recuse sua sponte. As the majority explains, recusal was discretionary. And the chancellor can hardly be said to have abused his discretion by not recusing when he was never asked to do so.
That’s about as clear a statement as one could hope for on the issue.