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.

Ins and Outs of Recusal

May 29, 2019 § Leave a comment

There comes a time in every lawyer’s life when you have no choice but to file a motion for the judge to recuse.

Most recusal situations are pretty clear, but not all are. It’s awkward at best to suggest that the judge should not be hearing your case, particularly where you are insinuating that ethical challenges may be involved. So you want to do it right if you’re going to do it at all. Here is some information that might help you get it right.

There are two categories of situations giving rise to consideration of recusal.

The first category consists of situations where the judge is per se disqualified and recusal is required unless waived by the parties. The bases for disqualification per se are set out in the Mississippi Constitution and the Mississippi Code.

The second category consists of situations in which grounds for disqualification per se are not present, but the judge’s impartiality might be questioned by a reasonable person knowing all of the pertinent facts. These are spelled out in Miss. Code of Judicial Conduct, Canon 3E.

Category One: Per Se Disqualification

Mississippi Constitution Article 6, § 165 states: “No judge of any court shall preside on the trial of any cause, where the parties or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, except by the consent of the judge and of the parties.”

Mississippi Code Ann. § 9-1-11 sets forth the same bases for recusal as provided in the constitution and adds the ground that the judge was previously counsel in the same proceeding.

The key to category one is that the judge is actually disqualified from sitting in the case. Recusal is mandatory unless the parties and the judge agree otherwise, or, as some people put it, they agree to waive the disqualification.

Category Two: Discretionary Recusal

The second category of recusal matters is found in the Mississippi Code of Judicial Conduct in Canon 3. In contrast with the Constitution and statutory mandatory recusal, all of the Mississippi Code of Judicial Conduct bases for recusal are hortatory; the Code recites that the judge “should” recuse in the listed circumstances if they apply.

Canon 3E(1) states the general principle: “Judges should disqualify themselves in proceedings in which their impartiality 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, including but not limited to instances where … ” The provision continues with several specific categories of situations that may require recusal. This is the general principle behind all recusal motions. Note the word should above. Again, in these situations recusal is discretionary and is reviewed on appeal for abuse of discretion.

The specific situations spelled out to complete the above provision are:

3E(1)(a). The judge has a personal bias toward a party or has personal knowledge of disputed evidentiary facts.

The Mississippi Supreme Court has stated that, “In the absence of a judge expressing a bias or prejudice toward a party or proof in the record of such bias or prejudice, a judge should not recuse himself.” Bateman v. Gray, 963 So.2d 1284, 1291 (Miss. 2007). The burden, which is a heavy one, is on the movant to prove facts sufficient to establish disqualifying bias or prejudice.” Hodnett v. State, 787 So.2d 670 (Miss. Ct. App. 2001).

What about a bad outcome? Some clients thing the judge is prejudiced against them because of an adverse ruling. Our appellate courts have recognized that “[O]ne party’s irritation at the trial judge’s ruling against him is not grounds to force the judge to recuse himself.” Clay v. State, 829 So.2d 676, 687 (Miss. Ct. App. 2002). “Prior rulings by a judge in the proceeding will almost never be sufficient to justify recusal.” Campbell and Jackson, Commentary on Judicial Ethics in Mississippi, § 6: 9 (2010). The United States Supreme Court addressed the principle in the case of Liteky v. U.S., 510 U.S. 540, 555 (1994):

“ … opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings , or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.”

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.

3E(1)(a). The judge or a lawyer with whom she previously practiced served as a lawyer or is a witness in the matter in controversy, or .

3E(1)(b). A lawyer as attorney or witness in the case is a former law partner or associate and served in the case while the judge was with the firm.

3E(1)(c). The judge or a member of his household has a pecuniary interest.

3E(1)(d).  The judge or a member of his family is a party or is an officer, will be a witness.

You should read the Canons themselves for the exact language. A link to them is here.

There is a presumption that all judges sworn to administer impartial justice are qualified and unbiased. Wal-Mart Stores, Inc. v. Frierson, 818 So.2d 1135, 1141-42 (Miss. 2002); Miss. Code Judicial Conduct Canon 3E commentary. The burden is on the party seeking recusal to file a motion detailing the factual basis relied on, and to create a reasonable doubt about the presumption of impartiality. Taylor v. State, 789 So.2d 787 (Miss. 2001); Copeland v. Copeland, 904 So.2d 1066, 1071 (Miss. 2004). There must be a reasonable basis to form a conclusion that there was a question of impartiality. Faerber v. Faerber, 13 So.3d 853, 865-66 (Miss. Ct. App. 2009). Mere speculation is not enough. Pearson v. Browning, 200 So.3d 1080, 1085 (Miss. Ct. App. 2016), citing Dillard’s, Inc. v. Scott, 908 So.2d 93, 98 (Miss. 2005) (quoting Code of Judicial Conduct, Canon 3(E)(1)).

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.

RECUSAL MERRY-GO-ROUND

January 17, 2013 § Leave a comment

I started to do a post to call your attention to the entertaining COA decision in the case of Boatwright v. Boatwright, but Lost Gap does such a good job expounding on it that I will simply defer and let you read about it there in a post titled, “MRCP 63 – Have you ever wondered what happens when a judge recuses after judgment but before ruling on post-trial motions?

Enjoy.

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