Is It Worth Fighting For (Recusal)?: The Tennessee Supreme Court Clarifies Judicial Canons on Personal Knowledge and Independent Investigations
In 2012, Jeanie Holsclaw filed an action against Ivy Hall Nursing Home, Inc. for retaliatory discharge. Following several years of extensive discovery and the recusal of two trial judges, Ivy Hall sought to have a certified rehabilitation counselor examine Holsclaw. At the hearing on Ivy Hall’s motion to examine Holsclaw, the judge informed the parties for the first time that she had called the director of the rehabilitation counselor program at the University of Tennessee to “understand what [a rehabilitation counselor] might or might not be able to testify to [based on] their background [and] education.” Neither of the parties raised an objection at the hearing, but Ivy Hall filed a motion for the trial court judge to recuse herself after obtaining a copy of the transcript. The trial court judge denied Ivy Hall’s motion to recuse, explaining that she had “done no investigation of [Ivy Hall’s] expert witness whatsoever” and that her “action would not lead a reasonable person to question [her] ability to be impartial.”
In a divided decision, the Tennessee Court of Appeals concluded that, based on Canons 2.11 and 2.9 of the Tennessee Code of Judicial Conduct, the trial court judge should have recused herself. Specifically, the majority’s decision concluded that “even though [the court] f[ound] no malice in the trial judge’s well-meaning, but misguided action,” the personal knowledge gained from the extrajudicial conversation created an “appearance of impropriety,” thereby necessitating recusal.
In a per curiam opinion, the Tennessee Supreme Court reversed the Court of Appeals and addressed two important questions: (1) What constitutes “personal knowledge” of a case under Canon 2.11?; and (2) At what point does a judge’s independent investigation create an “appearance of impropriety” whereby the “judge’s impartiality might reasonably be questioned”?
Relying primarily on a Minnesota Supreme Court decision, the Tennessee Supreme Court explained that “personal knowledge” is knowledge derived from “a close relationship between the judge and some substantive fact of a case,” such as where the judge knows of incriminating evidence against a particular defendant as a result of the judge’s role as a former prosecutor. Conversely, “personal knowledge” does not include information a judge learns “in the course of her general judicial capacity.” The Court indicated that the trial court judge here did not come close to having “personal knowledge” of the case because she “did not seek this information for the purpose of discrediting a party or a witness, or even for the purpose of ruling on whether to allow a particular certified rehabilitation counselor to testify as an expert.” Instead, she contacted the director at the University of Tennessee to know “whether such an expert potentially would be able to provide information helpful to resolving the issues in the case and also because the trial judge was considering naming a court-appointed expert.”
The Court, however, found that the trial judge violated Canon 2.9 – which prohibits a judge from engaging in ex parte communications and independent investigations – by contacting a non-party, concerning a pending matter, and outside the presence of the parties. But this does not end the inquiry for recusal. Recusal is only required when “the trial judge’s impartiality might reasonably be questioned” – a question, according the Court, that the Court of Appeals failed to consider separately. On this point, the Court found, “nothing in the record leads us to the conclusion that a person of ordinary prudence . . . would question whether [the trial judge] can be impartial in the proceedings.” The Court also noted that, “importantly, the trial judge ultimately allowed [Ivy Hall’s] proposed expert to examine [Holsclaw] again.”
Writing the sole dissent, Justice Page departed with the decision only on the question of “appearance of impropriety.” In particular, Justice Page concluded that because the trial judge’s ex parte communication “could have potential impact on the trial court’s decision-making process,” it “create[d] an appearance of impropriety.” Justice Page further noted that the trial court judge’s decision to allow the expert’s examination of Holsclaw did not “alleviate the perception of impropriety created by her contacting an outside source ex parte and off the record.”
For judges, this decision is good news in the sense that it provides guidance on when recusal may or may not be appropriate. It also suggests that trial court judges could avoid this whole problem by relying on the exception in Canon 2.9(A)(2) to ex parte communications with outside experts by providing the parties prior notice and a chance to respond to the advice received. For litigants, this decision most likely forecloses potential avenues for filing a motion to recuse by setting a high bar for what constitutes “impartiality [that] might reasonably be questioned.” Indeed, the Court found nothing to question the impartiality of the trial judge in this case. Then again, if the ultimate goal is to have a case handled by an impartial judge, then this decision will most likely result in more transparency with judges disclosing to the parties any contemplated contact with experts in order to avoid any appearance of impartiality.