Recusal Denied
A claim of an improper ex parte Christmas party encounter did not establish sufficient bias for recusal in heated litigation, according to a decision of the Tennessee Court of Appeals.
The allegation surfaced in this billing notation
11/21/14 At Schell & Davies law firm party in Franklin with Trevor. Meet Judges Woodruff and Binkley and others. Meet Virginia Story and discuss case. 1.50
From the judge’s affidavit
I recall being at a Christmas party at Schell & Davies law firm in Franklin, Tennessee, at the end of the month in November 2014. I barely remember saying “hello” to Mr. Harris, Judge Woodruff, and Mrs. Story, attorney for [Mr. Nesmith], but I would not, certainly, under any circumstances, discuss with any attorney or party to a lawsuit, the facts of a case or even bring up the case itself for any reason whatsoever. I never had an ex parte communication with Mrs. Story or Mr. Harris regarding any case, much less the present case, at the Christmas party mentioned above on or about November 21, 2014.
The court
Other than the vague notation that counsel for a party in the circuit court action “met” Judge Binkley at a holiday party, there is simply no indication that any of the merits of the case were discussed or that the interaction was anything more than passing social contact. “The mere existence of a friendship between a judge and an attorney is not sufficient, standing alone, to mandate recusal.”
Nor did delay or a heating courtroom exchange establish bias for recusal
We cannot deny that we are troubled by the events in this case, including the trial court’s repeated delay in disposing of motions and its clear violation of section 1.02 of Rule 10B. Moreover, we are particularly concerned with Mr. Nesmith’s action in filing affidavits from court staff in support of his characterization of the May 20, 2016 hearing. Again, however, the court staff‟s characterizations of the events of May 20, 2016 appear to stem directly “from events occur[r]ing in the course of the litigation,” rather than any extrajudicial knowledge. Accordingly, we reiterate that for any bias on the part of the trial judge and his staff to necessitate recusal, it must be so pervasive as to deny Appellants the right to a fair trial.
We have thoroughly reviewed the record in this case and conclude that Appellants have failed to meet their burden to show a bias so pervasive that it denies them their right to a fair trial. The record on appeal contains no indication that Judge Binkley has prejudged any of the issues in this case in favor of one party, despite the contentiousness of the proceedings among all participants. We agree that Judge Binkley did enter into a heated exchange with Appellants and their children at the May 20, 2016 hearing and was overly candid in his remarks regarding the presence of the children; however, Appellants have failed to show that this exchange, viewed in isolation, or in conjunction with the trial judge‟s multiple adverse rulings and delays, is evidence of a bias “so pervasive that it is sufficient to deny [Appellants] a fair trial,” see id., or that shows that Judge Binkley has an “utter incapacity to be fair.” Groves, 2016 WL 5181687, at *5. Accordingly, Judge Binkley did not err in denying Appellants’ recusal motions.
(Mike Frisch)