Facts: In September 2020, Mother petitioned to modify her parenting plan, alleging that Father was incapable of making joint decisions regarding their child’s education.

Mother amended her petition to seek sole decision-making authority over the child’s educational decisions.

Shortly after that, Mother moved to recuse the trial judge because

• the judge’s husband is a prominent politician who publicly endorsed in-person over online school attendance and criticized the local school board for requiring masks despite the COVID-19 pandemic, and
• the judge is well-known to be generally supportive of her husband’s views and to be of the same political and ideological persuasion.

A year later, Father moved to hold Mother in civil contempt because, when they had to decide whether their child should attend in-person or online classes, Mother enrolled the child in online classes without his consent. Father claimed the parenting plan granted him “ultimate decision-making authority” on educational issues.

The trial judge noted that Mother offered no evidence that the judge had expressed any opinion on in-person versus online learning or mask requirements for school children. The inference that the trial judge might share the publicly expressed views of her husband was said to be based on speculation and unfounded beliefs. Mother’s motion for recusal was denied.

Mother appealed.

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

In Tennessee, litigants have a fundamental right to a fair trial before an impartial tribunal. A trial before a biased or prejudiced factfinder is a denial of due process.

Tennessee courts recognize that the appearance of bias is as harmful to the judicial system’s integrity as actual bias. So a judge should recuse when they doubt their ability to preside impartially in a case.

But judges must also disqualify themselves in any proceeding in which the judge’s impartiality might reasonably be questioned. This test is an objective one. It requires recusal when a person of ordinary prudence in the judge’s position, knowing all the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality.

The Court agreed with the trial court’s decision to deny the motion to recuse:

A judge is not disqualified merely because he or she is related to one who has an interest in some abstract legal question that is involved in the case. Even if the judge shared her husband’s opinion—which [Mother] did not prove—personal bias does not refer to any views that a judge may have regarding the subject matter at issue.

This is not the first case in which a trial judge’s impartiality has been called into question by virtue of a spouse. But the idea that a judge should recuse based on a spouse’s opinion is based on an outmoded conception of the relationship between spouses. In marrying, spouses do not give up their freedom of thought and expression. So no thoughtful or well-informed person would simply assume that one spouse’s views should always be ascribed or attributed to the other in the absence of an express disclaimer.

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The issue before the court is not the merits of in-person or online schooling or whether masks should be required in schools. As [Father] points out, the issues are whether the current parenting plan should be modified and whether [Mother] should be held in contempt. As part of resolving the latter issue, the court will determine who had authority over educational decisions for the child. As part of resolving the former, the court may decide to modify that authority. A person of ordinary prudence would not find a reasonable basis for questioning the judge’s impartiality based on the facts presented.

The Court affirmed the trial court’s denial of the motion to recuse.

Neuman v. Phillips (Tennessee Court of Appeals, Middle Section, December 21, 2021).

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