Recusal Denied Despite Improper Independent Investigation By Judge

The Tennessee Supreme Court reversed an order granting a judge’s recusal in a civil case for an improper ex parte telephone call

This case is on appeal from a trial court judge’s decision not to recuse herself based on a telephone call to a university department director concerning a potential expert witness’ qualifications. Upon the trial court’s denial of the defendant’s motion for recusal of the trial court judge, the defendant filed an accelerated interlocutory appeal in the Court of Appeals pursuant to Tennessee Supreme Court Rule 10B, section 2. The Court of Appeals reversed the trial court’s decision, holding that recusal of the trial judge was necessary. We granted the plaintiff’s accelerated application for permission to appeal to this Court. Having thoroughly reviewed the filings of both parties and the applicable law, we conclude that the trial court’s denial of the motion to recuse was appropriate in this case. Therefore, we reverse the decision of the Court of Appeals.

Holding

While perhaps ill-advised because she did not consult with the parties first, the trial judge simply sought general information regarding whether a court-appointed CRC would be a workable option to help the parties resolve their dispute. And importantly, the trial judge ultimately allowed the Defendant’s proposed expert to examine the Plaintiff again, even though the matter had been pending for almost four years. In sum, the trial judge’s conduct throughout these proceedings would not give a person of ordinary prudence reason to question her impartiality.

Justice Page dissented

Regardless of her motive, the trial judge undertook an independent investigation of disputed facts by telephoning the director of the program at the University of Tennessee and inquiring about credentials of CRCs, contrary to the Code of Judicial Conduct. Id. at Canon 2.9(C) (“A judge shall not investigate facts in a matter independently[] and shall consider only the evidence presented and any facts that may properly be judicially noticed.”). The majority acknowledges that the trial judge’s actions constituted ex parte communications and an independent investigation. This is exacerbated by the fact that the conversation was held off the record, and the parties did not know the full content of exactly what was said. As noted by Judge Dinkins’ concurring opinion, by engaging in ex parte communications with the professor “without the knowledge or consent of the parties, the court was not only denied the opportunity to create a record of the purpose fornthe call prior to it being made, but the parties were denied the opportunity to preserve an objection.” Holsclaw, 2016 WL 7364901, at *9 (Dinkins, J., concurring).

While there was no record evidence of actual partiality, appearances matter

While I acknowledge that the question of recusal is close, I have concluded that a line was crossed in this case and that the conduct in question created an appearance of impropriety. I have also concluded that communication of the type in this case wherein a trial judge has an off-the-record ex parte discussion with an individual whose advice could have potential impact on the trial court’s decision-making process would, in most cases, create an appearance of impropriety.

(Mike Frisch)