Saturday, January 27, 2018

Bank Shot

A litigant's involvement in the refinance of the judge's home did not form a basis for recusal, held the Tennessee Court of Appeals in affirming the trial court 's denial of the motion.

the Petitioner, by and through counsel, filed a Motion for Recusal. In his motion, the Petitioner noted that he was an employee at a “local financial institution,” where he worked as a “market valuation officer” and that the Judge had an ongoing business relationship with the bank. He alleged he “was directly involved in a decision-making process that ultimately resulted in an effect on the Court’s finances.” Because of certain banking laws, the Petitioner was not more specific in his motion, and he did not attach an affidavit, intending instead of presenting live testimony at the hearing.

The judge denied the motion.

The foregoing considered, we have identified the following three issues that require our analysis: (1) Whether the trial judge showed actual bias against Petitioner by failing to allow Petitioner to fully testify as to the facts supporting his motion for recusal; (2) Whether recusal is necessary based on Petitioner’s allegations that the trial judge was aware that Petitioner had “a direct, negative effect on the Court’s personal finances and the effect was substantial;” and (3) Whether the trial judge is a material witness to this matter.

As to the judge's cursory denial

the contention that the trial judge showed bias by refusing to allow Petitioner to testify in support of his motion for recusal is not sufficient, standing alone, to justify recusal. Moreover, Petitioner failed to comply with Rule 10B by not attaching an affidavit that verified the specific factual grounds supporting disqualification of the judge. Therefore, his failure to comply with Rule 10B provides a basis to deny the petition without a hearing on the motion.

I'll take refinance

We find no error with this decision because Petitioner failed to identify any factual basis to support his suspicion or unfounded belief that the trial judge knew or even suspected that Petitioner had made a decision that adversely affected the trial judge’s application for a loan. Moreover, the trial judge stated with clarity that he had no knowledge that Petitioner played any role in the loan application process. The trial judge also stated that he was unaware that there had been an opportunity for a lower interest rate, and he was not aware that Petitioner was involved in a decision that resulted in an increase in the interest rate. As the judge succinctly put it, “I applied for [the loan]. I was told, here is the deal, and I accepted the deal. . . . I was unaware of [Petitioner’s] involvement.”

Although Petitioner believes the judge knew of his involvement in the loan process, which suspicion is merely based on the fact that the judge knew Petitioner worked for the bank, this belief or suspicion lacks a factual foundation.

The judge is not a witness

The trial judge denied having any knowledge of the extrajudicial facts of circumstances Petitioner relies on, and this fact, without more, does not make the judge “a material witness concerning the matter,” the matter being the divorce proceedings. To the contrary, the trial judge’s response has no bearing on the substantive issues in the parties’ divorce, only the motion for recusal. Accordingly, the statements made by the judge from the bench and in the order denying the motion to recuse do not require recusal based on RJC §2.11 of Tenn. Sup. Ct. R. 10.

We also find it disingenuous for Petitioner to contend that the trial judge must recuse himself based on the judge’s response to the motion for recusal. If this were the case, every judge who may be justified in denying a motion to recuse on the basis he or she had no knowledge of extrajudicial facts or circumstances would, nevertheless, have to be recused based on statements the judge made in denying the motion. This contention is neither logical nor the intent of Rule 10B.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2018/01/a-litigants-involvement-in-a-refinance-of-the-judges-home-the-foregoing-considered-we-have-identified-the-following-three-i.html

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