Facts: After a two-year marriage that produced few assets and no children, Wife — a Tennessee lawyer representing herself in the divorce — requested that the trial judge recuse himself from the case. The trial court denied the motion.

Wife appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Wife argued that the trial court should have recused itself because of adverse rulings made against her and statements made in court that she characterized as “personal attacks” against her. She also accused the trial court of “gender bias” based, in part, on the trial judge’s comment that a dog “is a man’s best friend” during a dispute over the timely return of a dog to Husband.

It is of primary importance that a litigant’s case be decided by an impartial and unbiased court. The Tennessee Supreme Court has acknowledged that one of the core tenets of our jurisprudence is that litigants have a right to have their cases heard by fair and impartial judges. Accordingly, judges must conduct themselves at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary and must not be swayed by partisan interests, public clamor, or fear of criticism.

The question of recusal on the basis of bias frequently involves two different inquiries. The first is whether the judge has actual bias; the second is whether his or her “impartiality might reasonably be questioned,” i.e., whether there is an appearance of bias.

Since the appearance of bias is as injurious to the integrity of the judicial system as actual bias, the test for determining whether a judge’s impartiality might reasonably be questioned is an objective one. The test for determining whether an appearance of impartiality exists is whether a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality.

Thus, even when a judge believes that he or she can hear a case fairly and impartially, the judge should grant a motion to recuse if a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality.

Generally, in order to justify recusal, any alleged bias must arise from extrajudicial sources and not from events or observations during litigation of a case. If the bias is alleged to stem from events occurring in the course of the litigation of the case, the party seeking recusal has a greater burden to show bias that would require recusal, i.e., that the bias is so pervasive that it is sufficient to deny the litigant a fair trial.

The law in Tennessee is well settled that adverse rulings by a trial court are not usually sufficient grounds to establish bias. Further, opinions of a judge based upon events that occur during the litigation of a case are not extrajudicial and do not arise from outside or from personal bias. Consequently, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. If the law were otherwise, recusal would be required as a matter of course since courts necessarily rule against parties and witnesses in every case, and litigants could manipulate the impartiality issue for strategic advantage, which the courts frown upon.

A judge’s bias against an attorney, based upon occurrences during litigation, may warrant disqualification only where hostility or bias is so pervasive that it is sufficient to deny the litigant a fair trial. Any comments made by the trial court must be construed in the context of all the facts and circumstances to determine whether a reasonable person would construe those remarks as indicating partiality on the merits of the case.

After reviewing the record, the Court found:

While [Wife] accuses the judge of calling her names, we disagree with that characterization. Some of the statements involve advising her to consider retaining another lawyer to represent her in this divorce. As the trial court explained, it had some concern that she was too emotionally involved. While the court did refer to the old saying about a lawyer who represents herself, the court did not call [Wife] a “fool.” The judge did tell her in one instance that she was not thinking like a professional but was acting like a scorned litigant. Having reviewed all the comments cited by [Wife] in context, we do not agree that they were “personal attacks,” nor did they indicate bias or prejudice against her that would suggest cause for removal….

We find absolutely no evidence of a bias against [Wife] based upon her gender. In fact, given the “evidence” she cites in support of the allegation, we find her allegation to be outrageous. Without any reasonable foundation, she has attacked the motivation of the trial judge and accused him of a more general bias than just against her in this lawsuit. We have serious concerns regarding her conduct and admonish her, as a member of the bar, against making unfounded critical accusations regarding a judge.

Accordingly, the trial court’s ruling was affirmed.

McKenzie v. McKenzie (Tennessee Court of Appeals, Middle Section, February 11, 2014).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.