Facts: After three years of dating, Husband, 45, married Wife, 21. She was his fourth wife. Husband and Wife have one child together.
Sixteen years later, Husband filed for divorce.
The trial court ruled that the prenuptial agreement the parties signed before the marriage was valid and enforceable. All that remained to resolve were the parenting issues.
Both parties filed pretrial briefs the week before the trial was to begin. Wife’s pretrial brief contained lurid allegations of the parties’ sexual activities involving threesomes with prostitutes.
Shortly after Wife filed her pretrial brief, a copy was published online by a local media outlet, Scoop: Nashville.
Husband moved to strike Wife’s pretrial brief because it contained “immaterial, impertinent, and scandalous matter only meant to harass” Husband.
During argument on Husband’s motion, the trial court commented:
[I]f I find [Wife] has or anyone on her behalf has provided this to the media, that’s going to go a long way in my deciding the relationship of the child between the child and [Husband]. Because under [Tennessee Code Annotated §] 36-6-106, one of the things, one of the big factors that I look at is promotion of the relationship of the minor child with the other parent. . . .
I’ve had a discussion with the clerk’s office regarding the file-stamped copies. And it was my clerk. He did the investigation and came back with the results. . . . [T]here were two copies. . . . The original was taken [by the clerk], [and] the copy was given [back to Wife’s counsel].
Now, if you look at what was produced on social media, there is a blue stamp. Anything on [the clerk’s online database] is black and white.
After being questioned by the trial court, Wife’s counsel admitted providing a copy of the pretrial brief to a reporter at Scoop: Nashville after the reporter requested it. The trial court responded:
I will tell you I think it was disgusting. I think it was done to gain an advantage. And I think it was completely, in my opinion, unethical for that to be provided.
Now, I will be looking at that as it relates to the relationship of this child with [Husband] and [Wife’s] promotion of that relationship.
On the morning the trial was set to begin, Wife moved to recuse the trial judge from further involvement in the case. Wife asserted the judge’s impartiality had been called into question because the judge conducted an independent investigation, stated the results of his independent investigation would influence his decision, and accused Wife’s counsel of unethical behavior.
The trial court denied Wife’s motion and accused Wife of filing the motion to delay the trial.
On Appeal: The Court of Appeals reversed the trial court.
Preservation of the public’s confidence in judicial neutrality requires not only that the judge be impartial but also that the judge is perceived to be impartial.
Even when the judge subjectively believes that he or she can hear a case fairly and impartially, the judge must still recuse himself or herself when a person of ordinary prudence in the judge’s position, knowing the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality. This objective standard is necessary because the appearance of bias is as detrimental to the integrity of the judicial system as actual bias.
The Tennessee Code of Judicial Conduct says 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. A judge may consult with court staff and court officials whose functions are to aid the judge in carrying out the judge’s adjudicative responsibilities if the judge makes reasonable efforts to avoid receiving factual information not part of the record, and does not abrogate the judge’s responsibility personally to decide the matter. The prohibition against the judge investigating the facts in a matter extends to information available in all mediums, including electronic.
The Court held the trial judge should have recused himself:
[T]he printouts of the two posts from the Twitter account maintained by Scoop: Nashville, which were relied on by the trial judge in the order on review, and attached thereto, were never relied on or mentioned by the parties in the proceedings below, or attached to any pleading filed by the parties in the trial court. . . . [T]he articles attached to Wife’s [motion to recuse] came from the website maintained by Scoop: Nashville while the documents attached to the order on review came from posts by Scoop: Nashville on its account maintained on the Twitter website. As such, it is clear beyond question that the trial judge in this case improperly consulted Twitter in an effort to resolve disputed facts surrounding how and when Scoop: Nashville obtained a copy of Wife’s [pretrial] brief.
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[T]he trial judge in this case announced on the record and in his own orders that he had used the results of his independent investigation to influence his view of Wife’s counsel’s ethics and that he also would use the results of the investigation when considering the issue of custody and parenting time of the parties’ minor child. We are constrained to conclude that these comments by the trial judge create an appearance of bias or prejudice against Wife and her counsel now requires a trial judge’s recusal. Nothing about the providing of a copy of Wife’s [pretrial] brief to Scoop: Nashville violated the Tennessee Rules of Professional Conduct, [which allows] a lawyer to convey to the media “information contained in a public record.” We agree with the trial judge in this case that the willingness and ability of a parent “to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child” is a statutory factor to be considered by a trial court in determining the issue of child custody in a divorce proceeding. However, we disagree that anything learned by the trial judge from his independent investigation into Scoop: Nashville’s posts should, in any way, color the trial judge’s view of Wife with regard to the statutory factor.
The trial court’s denial of Wife’s motion for recusal was reversed and the case remanded with instructions for the case to be assigned to a different judge.