Thursday, January 19, 2023
The Tennessee Court of Appeals ordered recusal of a judicial officer in a matter where the client (doing business as Doghouse Computers) is represented by the opponent he defeated (and unseated) in a recent election
This is an accelerated interlocutory appeal as of right pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee from the chancery court’s denial of a motion to recuse. A new chancellor, during the course of a judicial election and shortly after the election was held, made extremely critical comments regarding the personal and chancellor, who has returned to practice, is now representing a party before the new chancellor. The former chancellor moved for the new chancellor’s recusal in cases in which the former chancellor is appearing as counsel as well as recusal from cases involving the law firm which the former chancellor joined after losing the judicial election. The new chancellor denied the motion. On appeal, we conclude that, even in the absence of actual bias, based upon concern about the appearance of bias toward the former chancellor, recusal is warranted. This concern does not extend to the law firm the former chancellor has joined. Accordingly, we reverse the denial of recusal insofar as it concerns the former chancellor but affirm the denial of recusal insofar as it concerns the law firm.
Then-attorney now-Chancellor Ben Dean ran against Mr. McMillan and defeated him in the August 2022 election. Mr. McMillan asserts that, during the course of the election, Chancellor Dean made extremely derogatory remarks about his character through public Facebook postings and that these remarks warrant recusal under Tennessee Supreme Court Rule 10B.
As an illustration, Mr. McMillan notes that during the campaign, when drawing a sharp distinction between the candidates over the question of character, the “Committee to Elect Ben Dean Chancery Judge” posted the following:
. . . My opponent keeps saying the mantra “Experience Matters,” yet he has little to nothing to say or show about anything positive he has accomplished professionally or personally in 18 years as Chancellor.
Let me tell you my mantra: “Character Matters!” More importantly, how you treat people matters. All the experience in the world means nothing if you can’t be nice and kind to people or if you are a morally bankrupt soul….
Similarly, after Mr. Dean won the election, Mr. McMillan’s stepson posted on Facebook that the politicization of the race was “a loss for the moral integrity” of the court. The “Committee to Elect Ben Dean Chancery Judge” responded:
Surely you are not suggesting his loss will result in the loss of the moral integrity of the judiciary in these two counties. I haven’t broadcasted or laid bare his many past moral failings and deep character flaws, and ran a fairly positive campaign with an actual platform of change versus attacking him and telling all the sordid details of his own personal failings. The voters have spoken and character matters!
The former Chancellor sought recusal of his successor
In ruling on the motion to recuse in this case, Chancellor Dean declared he held “no ill will, personal bias or prejudice against Attorney McMillan.” We do not doubt either the sincerity or accuracy of Chancellor Dean’s declaration. In other words, in considering this appeal, we do not conclude that Chancellor Dean is actually biased against Mr. McMillan and do not doubt that he would be impartial in any matter in which Mr. McMillan served as counsel. The standard, however, directs courts to consider appearances and whether a reasonable, disinterested person would believe that there is a reasonable basis for questioning the judge’s impartiality.
But that appearance does not extend to the law firm
We come to the opposite conclusion, however, regarding the recusal of Chancellor Dean in cases involving Mr. McMillan’s law firm. The motion for recusal itself contains no specific allegations of bias with regard to Mr. McMillan’s law firm; it merely proceeds on a theory of taint by association. On appeal, Mr. McMillan cites to the trial court’s order as evidence of a “metastasizing cancer of bias” against the firm, asserting the trial court considered extraneous material and made a “veiled threat.” However, the record contains no objective evidence from which bias or appearance of bias against the law firm could be reasonably inferred. Having reviewed the materials appended to the motion to recuse, we conclude there is simply nothing in the record to support an inference of bias against the law firm. Compare Bean, 280 S.W.3d at 801, 806 (the judge called the attorney’s partner “the worst excuse for a lawyer that there has ever been” and requested an investigation of members of the law firm for alleged criminal conduct). Accordingly, we affirm Chancellor Dean’s denial of the motion to recuse with respect to Mr. McMillan’s law firm.