Facts: After 35 years of marriage, Wife filed for divorce and challenged the validity of the prenuptial agreement signed the day before the wedding.

During the hearing on the validity of the prenuptial agreement on July 25, 2022, Wife was cross-examined on a child custody petition her ex-husband filed shortly after she married Husband.

During a break, the trial court advised counsel that a lawyer at the judge’s former law firm filed the ex-husband’s custody petition. The judge had been a partner in the firm at the time, and the judge’s office at his former firm was next to the office of the lawyer who represented the ex-husband.

Although the judge said he could act impartially, the judge thought the lawyers should inform their clients and discuss whether he should remain on the case. Before visiting with his client, Wife’s attorney asked the judge if he would have any memory of the case that occurred 35 years ago, to which the judge replied, “Not much.” The judge further stated that he had no recollection of Wife’s ex-husband or of working on the child custody matter. But the judge could not rule out the possibility he might have worked on the case in some capacity.

After the lawyers discussed this disclosure with their clients, Husband requested the judge’s recusal because the judge might have been involved in the custody proceeding between Wife and her ex-husband.

Wife opposed recusal. She argued that the child custody petition was irrelevant to the validity of the prenuptial agreement, and the decades-old representation by a former law partner would not cause a reasonable person to question the judge’s impartiality. She also felt it was inappropriate for the judge to recuse himself at this late stage of the proceedings with the hearing nearly finished. Wife also agreed to waive any possible conflict. Wife asked the judge to rule on the validity of the prenuptial agreement before the judge’s retirement on August 31, 2022.

After considering the arguments, the trial court judge decided to recuse. While maintaining that his “ability to serve fairly and impartially in this case would not be affected at all by this turn of events that has come to light vis-à-vis [his] former law firm still, he concluded he should recuse “and allow the case to be transferred to someone else who would not be subject to criticism regardless of the outcome.”

Wife petitioned for an expedited recusal appeal or, alternatively, a common law writ of certiorari.

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

Under Tennessee law, a judge must hear cases assigned to the judge unless the rules of judicial conduct require disqualification. One reason requiring disqualification is when a judge’s impartiality might be questioned if the judge was in the same firm with a lawyer who participated substantially as a lawyer in the same case when that lawyer and the judge were in the same firm.

First, the Court held the typical process for challenging a recusal decision—Tennessee Supreme Court Rule 10B—didn’t apply here:

Rule 10B of the Rules of the Supreme Court of Tennessee … offers a party “an accelerated interlocutory appeal as of right” when determining whether a judge should preside over a case. But that exception is limited to an order denying a motion for the judge’s disqualification, recusal, or determination of constitutional or statutory incompetence. Because this appeal is from a grant of a motion for recusal, Rule 10B is not applicable.

Recognizing the limits of Rule 10B, Wife requested review under the common law writ of certiorari.

A writ of certiorari may be granted if an inferior court has exceeded its jurisdiction or is acting illegally and there is no other plain, speedy, or adequate remedy. However, the writ does not apply to actions governed by the rules of appellate procedure. Thus, the writ is not an alternative when an express provision for an appeal is available.

The Court found that a writ of certiorari was inappropriate:

[Wife] acknowledges that she could have sought appeal by permission under Tennessee Rule of Appellate Procedure 9 or 10. She did not because “the time it would take to engage in the process would expire before the [recused] judge retires.” But, given that Rules of 9 and 10 expressly provide for interlocutory appeals, she had other remedies. Even if the timing of the judge’s retirement made seeking permission to appeal from the trial court impossible, [Wife] could have sought an extraordinary appeal from this Court. Because review was available under the Tennessee Rules of Appellate Procedure, review was not available by common law writ of certiorari.

The Court dismissed the appeal because review of the trial judge’s recusal is not available under either Rule 10B or a common law writ of certiorari.

K.O.’s Comment: (1) I was today years old when I realized a Rule 10B interlocutory appeal only applies to a trial court’s denial of a motion to recuse.

(2) While not exactly relevant to this case, the Judicial Ethics Committee issued an advisory opinion two days before this appellate opinion was published where it held that a judge is not required to recuse themselves simply because one of the attorneys in the case is a member of the former judge’s law firm.

Young v. Young (Tennessee Court of Appeals, Western Section, August 19, 2022).

If you found this helpful, please share it using the buttons below.