Wednesday, December 6, 2023

Ordinary Prudence, The Downward Spiral And The Two Minute Warning

The Tennessee Court of Appeals affirmed the denial of a recusal motion

This is an interlocutory appeal as of right, pursuant to Tennessee Supreme Court Rule 10B, filed by the appellants seeking to recuse the trial judge, Judge Joe Townsend (the "trial judge") in the underlying post-divorce contempt action. Having reviewed the petition for recusal appeal filed by the appellants and the answer thereto, and finding that the appellants have failed to demonstrate that a person of ordinary prudence in Judge Townsend's position, possessing the same knowledge as Judge Townsend, would find a reasonable basis to question Judge Townsend's impartiality, we affirm the trial judge's denial of the recusal petition.

The judge had removed counsel from representation of a longtime client who was subject to a conservatorship proceeding.

The dissent of Judge Armstrong lays out the case for bias recusal.

Impact of trial court's disqualification ruling

I respectfully dissent from the majority's holding that recusal of the trial judge is not warranted in this case. The majority discusses each of Appellants' allegations concerning the trial court's bias. However, the majority fails to consider the cumulative effects of the trial court's actions, and wholly fails to consider the fact that the ultimate result of these actions is usurpation of the autonomous decisions Ms. Malone made for her own care when she was competent to do so. Although the trial court negated Ms. Malone's well-established attorney-client relationship with Mr. Autry, Ms. Bleavins [together with Mr. Autry, "Attorneys"], and the Williams McDaniel firm, my dissent does not focus on Judge Townsend's rulings. Rather, in the context of recusal, I focus my dissent on the disparate treatment the trial judge showed to the Attorneys and the Williams McDaniel firm in reaching those decisions.

An ex parte telephone call from the judge to an associate attorney in the Williams McDaniel firm

The sole purpose of Judge Townsend's call was to inform Ms. Palmer that the Evans Petree firm was superior to the Williams McDaniel firm. Furthermore, I cannot overlook the timing of the call on the same day as the trial judge caused unnecessary summonses to issue for Attorneys—and all of this after Attorneys sought extraordinary appeal to this Court.

Bias showing

Despite the fact that this Court's June 14, 2023 order staying all of the trial court's proceedings (except adjudication of the May 2 motion to alter or amend) remained in effect, Judge Townsend proceeded with the November 6 "status conference." The transcript of those proceedings clearly evidences Judge Townsend's disdain for Mr. Autry and his continued pattern of bias toward the Williams McDaniel firm...

After reciting the ensuing transcript

Then, Judge Townsend proceeded to set the evidentiary hearing to begin immediately, to wit:

It's 2:45. The Court will set the evidentiary hearing on this matter for 2:47 today. The Court will take a standing recess. After the standing recess, the Court will begin the evidentiary hearing in this case to deal with the motions to alter or amend on an evidentiary basis.

Then, without taking any evidence, Judge Townsend, after setting the evidentiary hearing with two-minutes' notice to the litigants, flagrantly overstepped this Court's orders and proceeded sua sponte to disqualify the entire Williams McDaniel firm in what I can only describe as a spiral of bias and unadulterated disdain for Attorneys and their firm.

The transcript of the downward spiral follows

As Judge Townsend made clear, "[t]here is a decorum in the court." Here, however, there has been none shown by the court itself. The trial court has shown disdain for and bias against Attorneys and their firm at every turn. Considered objectively and knowing all the facts and circumstances here, a person of ordinary prudence would find a reasonable basis for questioning the judge's impartiality in this case. Nonetheless, despite ample proof to the contrary, the majority has opined that Judge Townsend has no bias toward Attorneys or their firm, and that he may preside over the conservatorship and post-divorce matters. This is plain error. Judge Townsend is clearly biased against the Williams McDaniel firm, and with his denial of recusal now affirmed, he will be unchecked and emboldened in his dogged pursuit of removal of Attorneys frorn these cases and the usurpation of Ms. Malone's estate planning and wishes. I dissent.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2023/12/the-tennessee-court-of-appeals-affirmed-the-denial-of-a-recusal-motion-this-is-an-interlocutory-appeal-as-of-right-pursuant.html

Judicial Ethics and the Courts | Permalink

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