Judicial Campaign Leads to Recusal in Clarksville, Tennessee: Denney v. Rather

February 8, 2023 K.O. Herston 1 Comments

Facts: This opinion begins with this beautiful summary:

Though a campaign for judicial office has significant similarities to legislative and executive races, the nature of a judicial office has enough differences from the other branches that divergent complications may arise in the wake of a campaign. This appeal wades through that wake, the backwash from a contentious campaign after the votes have been tabulated, results announced, and they judge sworn into office, with the unsuccessful candidate now appearing as an advocate in a courtroom before the victorious candidate.

Attorney Dean ran against Chancellor McMillan in an election for the judicial office of Chancellor. During the campaign, Attorney Dean said of Chancellor McMillan: “How you treat people matters. All the experience in the world means nothing if you can’t be nice and kind to people or if you are a morally bankrupt soul.”

Attorney Dean won the election.

After the election, now-Chancellor Dean said of now-Attorney McMillan: “I haven’t broadcasted or laid bare his many past moral failings and deep character flaws and ran a fairly positive campaign with an actual platform of change versus attacking him and telling all the sordid details of his own personal failings.”

Attorney McMillan, representing a client with the case before Chancellor Dean, moved for the Chancellor’s recusal because of these and other comments about Attorney McMillan. Attorney McMillan sought the Chancellor’s permanent recusal from any case in which Attorney McMillan or members of the law firm he joined serve as counsel.

Chancellor Dean denied the motion, stating that he holds no ill will, personal bias, or prejudice against Attorney McMillan, and that his comments did not create a reasonable basis for questioning his impartiality. He also found no purported bias could reasonably be perceived to extend to the law firm.

Attorney McMillan appealed.

On Appeal: The Court of Appeals reversed in part and affirmed in part.

Tennessee law requires a judge to disqualify themselves in any proceeding in which their impartiality might reasonably be questioned, including situations where the judge has a personal bias or prejudice about a party or a party’s lawyer.

The test for recusal requires a judge to qualify themselves if 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.

When a judge’s impartiality might reasonably be questioned, recusal is warranted even if the judge believes they can be fair and impartial. The party moving for recusal bears the burden of presenting evidence that would prompt a reasonable, disinterested person to believe there is a reasonable basis for questioning the judge’s impartiality.

The Court found recusal appropriate as to cases handled by the lawyer but not other lawyers in the same firm:

In the rough-and-tumble of a hotly contested election, a candidate for judicial office may use strong language which does not tend toward respectful debate with his or her opponent. Cutting statements or sharp criticisms of an opponent uttered during a campaign for judicial office do not necessarily require recusal. Significantly, the statements made by Chancellor Dean are of a personal character, they are directed at Attorney McMillan, and they stem from an extrajudicial source. When the bias is alleged to stem from events occurring in the course of the litigation of the case, the party seeking a judge’s recusal has a greater burden to show that recusal is required. The alleged bias in the present case does not arise from such transactions; thus, this heightened burden is inapplicable in the present case. The comments were not made with the new Chancellor overseeing ongoing litigation or courtroom administration, nor were they based purely upon an assessment of observed professional comportment of the former Chancellor in that role either in the present case or past cases. For extrajudicial comments, where a comparatively lower standard is applicable, recusal may be warranted where the judge’s comments raise reasonable questions about the judge’s impartiality.

There are some critiques of Mr. McMillan contained in the materials submitted to this court that amount to little more than disagreements raised in the campaign over how Mr. McMillan performed his role as Chancellor or noting of Mr. McMillan’s perceived foibles. The criticism ultimately, however, cuts much deeper and into the domain of the personal in terms of both the source of the views expressed by new Chancellor Dean and the scope of his critique of Mr. McMillan. Our concern with the statements is enhanced by the intersection of a deeply personal critique, “a morally bankrupt soul,” with the importance, in general, of a court’s trust in counsel’s character in performance of his or her role as an officer of the court. Furthermore, these derogatory statements were made publicly; accordingly, the public is aware of this view of Mr. McMillan expressed by Chancellor Dean.

Many critiques, even sharp and cutting critiques of an opponent in a campaign for judicial office, will not require recusal, but here, given the nature of the comments, a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, could find a reasonable basis for questioning the judge’s impartiality as to Mr. McMillan. The circumstances here warrant a concern with the appearance of impartiality, as a reasonable observer could reasonably question the impartiality of a judge who has publicly, in an extrajudicial series of statements, proclaimed an attorney to be “a morally bankrupt soul” with “deep character flaws” whose “moral failings” and “personal failings” can be demonstrated in “sordid details.”

In drawing a distinction between himself and his opponent in order to inform the voters, Chancellor Dean cut to the quick of his opponent’s personal character, the nature of his very soul. Simply stated, viewed through an objective lens, the statements made by Chancellor Dean regarding Mr. McMillan, which are extrajudicial both in source and the scope, raise a reasonable question as to the appearance of impartiality.

The Court then found no objective evidence in the record from which bias against the law firm could be reasonably inferred. Thus, the Court reversed the trial court’s denial of recusal in Mr. McMillan’s cases but affirmed the denial of recusal in the law firm’s cases.

K.O.’s Comment: The politicization of judicial elections will continue to get worse if voters elect those who debase themselves and the judiciary as an institution by engaging in it. Tennesseans can do better, and we must.

Denney v. Rather (Tennessee Court of Appeals, Middle Section, January 19, 2023).

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Judicial Campaign Leads to Recusal in Clarksville, Tennessee: Denney v. Rather was last modified: February 3rd, 2023 by K.O. Herston

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