Jeanie Holsclaw v. Ivy Hall Nursing Home, Inc.Jeanie Holsclaw v. Ivy Hall Nursing Home, Inc.
Lead Opinion
OPINION
Per Curiam.'
This, case is on appeal from á trial court judge’s decision not to recuse herself based on a telephone call to a university department director- concerning a potential expert witness’ qualifications. Upon the trial court’s denial of the defendant’s motion* for recusal of the trial court judge, the defendant filed an accelerated interlocutory appeal in the Court of Appeals pursuant to Tennessee Supreme Court Rule 10B, section 2. The Court of Appeals reversed The trial court’s decision,, holding that recusal of the trial, judge was necessary. We granted the plaintiff s accelerated application for permission to appeal to this Court. Having thoroughly reviewed the filings of both parties and the applicable law, we conclude that the trial court’s denial of the motion to. recuse was appropriate in this case. Therefore, we reverse the decision of the Court of Appeals. ,
Factual and Procedural Background
This matter originated as a retaliatory discharge action filed by Jeanie Holsclaw (“Plaintiff’) against Ivy Hall Nursing Home, Inc. (“Defendant”) in November 2012. The parties engaged in extensive discovery over the course of several years. During that time, the first two trial judges assigned to the matter recused or removed themselves, and eventually the Honorable Jean Stanley was assigned to preside over the case. The matter was set for trial five different times but, to date, no'trial has occurred.
On September 12, 2016, the Defendant filed a motion, pursuant to Tennessee Rule of Civil Procedure 35,01,
The Plaintiff opposed the motion, arguing in her response that this request was the fourth examination to which she would be required to undergo in the course of litigation;
On September 19, 2016, the trial court held a hearing on the Rule 35 motion and stated the following:
THE COURT: Okay. Here’s the deal. You all don’t need to keep hiring 14 experts on this issue and 14 on that. It is a real issue; front pay and back pay are an issue. So that being at issue, I think they have , the right to ask for an evaluation.
My view on this is that I would rather have one expert I could trust that’s appointed by the court, who doesn’t care who the plaintiff is or. who the defendant is. Really, ray leaning would be for the court to appoint somebody. Now, if you all don’t want to do that,- I’m probably going to let him go ahead and have this evaluation done.
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THE COURT; Ókay. And I .will tell you all this: Most of the experts I’ve had on this kind of topic are, like, Dr. Hankins, vocational disability experts. So, I really was not all that familiar with the rehab counselors. To me, the whole concept of a rehab counselor is somebody who is going to counsel with you, form a relationship with you, and try to help you. So my first question was: Are these dudes even qualified to testify as experts?
So, frankly, I called, the director of the department at the University of Tennessee this morning. I talked to Dr. Mul-. key. I don’t think there is any problem with me doing that, but I do think I have an obligation to disclose to you that I did. He just kind of filled me in on what the program, the certification is, what these guys do and don’t do, you know, enough for me to at least conclude that this is the type of certification for a person that I might let testify as an expert.
So I understand that what this person might or might not be able to testify to is also going to be limited by what their background, education, and so forth is. And I’m not even making any kind ofruling on that right now, but I had even asked him if he could give me a couple of names of people who might be willing to work for the court, not necessarily for a party in litigation and he said that, yes, he could probably do that.
So, just for general information, if you’re ever in a position where you would prefer to have a court-appointed expert that doesn’t testify for a living, I think I can get us one. Just general info.
The parties raised no objection following the trial court’s disclosure. At the conclusion of the hearing, the trial court granted the Defendant’s motion for a Rule 35 examination. -
On October 21, 2016, the Defendant obtained a copy of the transcript from the hearing on the Rule 35 motion and filed a motion to recuse the trial judge on October 25, 20Í6. The Defendant argued that recu-sal was necessary because the trial court “did not constrain itself to consideration of the facts presented by the parties”; “conducted an independent investigation”; and “acquired knowledge from an extra-judicial source.” Accordingly, the Defendant argued that the trial judge had “personal knowledge of disputed evidentiary facts concerning the proceeding.” The trial court denied the motion to recuse on October 28, 2016, stating that she had “done no investigation of defendant’s expert witness whatsoever” and that her “actions would not lead a reasonable person to question [her] ability to be impartial.” Rather, she only had inquired regarding “what [rehabilitation counselors] might go on to do with their degree and/or their certification” and the availability of court-appointed experts.
. On November .1, 2016, the Defendant filed a petition in the Court of Appeals for an accelerated interlocutory appeal of the trial court’s denial of the motion for recu-sal. On December 19, 2016, the Court of Appeals issued a decision reversing the trial court’s denial of the motion for recu-sal. In the lead opinion, Presiding Judge Steven Stafford determined that the trial judge engaged in an independent investigation that allowed the judge to gain personal knowledge of disputed facts. Holsclaw v. Ivy Hall Nursing Home, No. E2016-02178-COA-T10B-CV,
Analysis
The Plaintiff argues that the Court of Appeals erred in reversing the trial court’s denial of recusal. Specifically, she contends that the Court of Appeals “applied the wrong test” by deciding that recusal was necessary without determining that ‘ “the judge’s impartiality might reasonably be
The Defendant argues that the trial court erred by obtaining personal knowledge of disputed facts, engaging in ex parte communications with Dr. Mulkey, and undertaking an independent investigation, all of which created a reasonable basis for questioning the trial judge’s impartiality. There is no allegation of actual bias by the trial judge in this case.
Pursuant to Tennessee Supreme Court Rule 10B, section 2.07, this Court shall decide an appeal of a recusal matter under this section “on an expedited basis upon a de novo standard of review.”
Litigants in Tennessee have a fundamental right to a “fair trial before-an impartial tribunal.” State v. Austin,
Personal Knowledge
Although the Court of Appeals commented that “[njothing in the record on appeal leads [the Court of Appeals] to believe that the trial judge in this case holds a prejudice or bias against any party or that the trial judge cannot remain impartial despite this communication,” Holsclaw,
We conclude that this determination misapprehénds the definition of “personal knowledge” in Tennessee Supreme Court Rule 10. We note that this Court previously has not addressed this issue. Therefore, we will clarify the type of “personal knowledge” that merits recusal.
Tennessee’s rules of judicial conduct require that “[a] judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including ... [when] the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.” Tenn. Sup. Ct. R. 10, Canon 2.11 (emphasis added). In looking to other states that have had occasion to define personal knowledge, we find the Minnesota Supreme Court’s definition of “personal knowledge” from Minnesota’s recusal statute to be persuasive and.instructive. See State v. Dorsey,
In Dorsey, ■ the Minnesota Supreme Court confronted a cáse in which the judge had knowledge of facts that contradicted a witness’ testimony.
[T]he requirement that a judge must .disqualify herself if she has “personal knowledge of disputed evidentiary facts” is a narrow prohibition, and [ ] the word “personal” should be interpreted according to its common usage. “Personal” is primarily defined as “of, relating to, or affecting a person,” and' is regarded as synonymous with “private.” Webster’s Ninth New Collegiate Dictionary 877 (1987). “Private,” in' turn, is' defined as “restricted to the individual or arising independently of others'.” Id. at 936. For the purposes of Canon 3D(l)(a), “personal knowledge” pertains to knowledge that arises out of a judge’s private, individual connection to particular facts. ■
Id. at 247, The court then determined that the judge’s knowledge was not “personal” and that it wás not cause for recusal.
Cases in whick a judge is found to have personal knowledge often involve á close relationship between the judge and some substantive fact of a-case; One such example is in State v. Smith, where this Court examined a trial judge’s personal knowledge of incriminating evidence against a defendant because of the judge’s previous role in the prosecution of that same defendant ⅛ a separate case.
Unlike the situation in Smith, the trial judge in this .case did not have, a personal connection to evidence, nor were the merits of the case affected at all by the judge’s conduct. The judge in Smith was familiar with the defendant ■ through his previous work as á prosecutor, and-that familiarity and personal knowledge created a reasonable basis for questioning the trial’judge’s impartiality. Id. In contrast, the trial judge in this case has no particular familiarity with either party or the -expert at issue; and the information she obtained from her communication with Dr. Mulkey is not of the kind that would bias-her toward either party. ■ - ■
Nor does the knowledge in the instant case even rise to the same level as that of the information obtained in Dorsey, in which a trial witness’ testimony was discredited due to the trial judge’s knowledge. The trial judge in this cáse sought information about the educational requirements needed to become a certified reha
Accordingly, we hold that the trial judge did not err by declining to recuse herself in the instant case, as any knowledge .that can be said to have been obtained by the trial judge in this case does not qualify as “personal knowledge” pursuant' to Rule 2.11 of the Rules of Judicial Conduct and does not require recusal of the trial judge on that basis.
Ex Parte Communication/Independent Investigation
We next determine whether the trial court engaged in an improper ex parte communication or independent investigation pursuant to Tennessee Rule of Judicial Conduct 2.9. Tennessee Rule of Judicial Conduct 2.9 states that "[a] judge shall not initiate, permit, or consider ex parte communications or consider other communications made to the judge outside the presenceof the parties or. their lawyers, concerning a pending or impending matter.” Tenn. Sup. Ct. R. 10, Canon 2.9(A). Comment 3 under this provision provides clarification that the communications may not be with any “other persons who are not participants in the proceeding,” with a few exceptions. Tenn. Sup. Ct. R, 10, Canon 2.9, Comment 3.
Canon 2.9 further requires that a judge refrain from conducting an independent investigation into the facts of a matter. Tenn. Sup. Ct. R. 10, Canon 2.9(C). Rather, a judge should “consider only the evidence presented and any facts that may properly be judicially noticed.” Id.
We first will consider whether the trial court’s communication qualified as an ex parte communication under Canon 2.9. By contacting Dr. Mulkey, the trial judge communicated with someone who was not a party to the proceeding, outside the presence of the parties or their lawyers, concerning a pending matter. The communication pertained to the educational background, generally, of certified rehabilitation counselors. Given that the matter before the trial court at that time was whether to order, the Plaintiff to be.examined bj( a.CRC, who later would testify as an expert at trial, the communication with Dr. Mulkey involved a pending matter.
Moreover, none of the exceptions to the prohibition against ex parte communications apply here. One such exception is when “the communication does not involve a substantive matter or an issue on the merits, the judge believes no. party will gain an advantage as a result of the communication, and the judge notifies the parties of the substance of the communication and allows them an opportunity to respond.”. Bean v. Bailey,
A second exception, applies if the judge is: consulting with a “disinterested expert on the law applicable to a proceeding,” and the. judge complies with the notice and opportunity to respond requirements: Id. (citing Tenn. Sup. Ct. R. 10, Canon
We also hold that this communication between the trial judge and Dr. Mulkey qualifies as an independent investigation under Canon 2.9. In considering the trial judge’s actions in this matter, the Court of Appeals determined that “whether Mr. Smith would be permitted to testify as a CRC was a matter in dispute and, rather than relying solely on matters learned in the courtroom, the trial judge made an independent investigation into the CRC program to help her adjudicate that dispute.” Holsclaw,
Impartiality Might Reasonably Be Questioned
Our determination that the trial judge engaged in action qualifying as an ex parte communication and an independent investigation does not end our inquiry. We now must consider the issue of whether the trial judge’s communication and independent investigation required her to re-cuse herself. Runyon v. Runyon, No. W2013-02651-COA-T10B,
We note that the Court of Appeals did not consider separately whether the trial judge’s impartiality might reasonably be questioned. Rather, that court determined that, because the trial judge “gained personal extrajudicial knowledge ‘of facts that are in dispute in the proceeding’ ..,., an appearance of impropriety was created under Canon 2.11 of the Code of Judicial Conduct necessitating recusal.” Holsclaw,
Based upon our independent review of this separate issue, nothing in the record leads us to the conclusion that a person of ordinary prudence, knowing all the facts available to the trial judge in this case, would question whether she can be impartial in the proceedings. At all times in the proceedings, the trial judge was open, honest, and forthright about her communication with Dr. Mulkey. At no point did the trial judge discuss the Defendant’s expert specifically with Dr. Mulkey. She did not investigate the Defendant’s proposed expert. She merely ascertained what the CRC program at the University of Tennessee entailed so that she could understand what type of certification CRCs generally receive and what CRCs generally do or do not do, all with the aim of educating herself so that she could rule on whether or
While perhaps ill-advised because she did not consult with the parties first, the trial judge simply sought general information regarding whether a court-appointed CRC would be a workable option to help the parties resolve their dispute. And importantly, the trial judge ultimately allowed the Defendant’s proposed expert to examine the Plaintiff again, even though the matter had' been pending for almost four years. In sum, the trial judge’s conduct throughout these proceedings would not give a person of ordinary prudence reason to question her impartiality.
CONCLUSION
We hold that the trial judge’s actions in the proceedings below did not necessitate recusal.
Notes
. Rule 35.01 states:
When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party; is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for ex? animation the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
Tenn. R.,Civ. P.35.01.
. The Plaintiff’s Response to the Defendant’s motion for Evaluation indicates that “CNA”. stands for “Certified Nurse Aid.”
. We note that this total apparently includes the examinations. in the separate workers' compensation action between the parties in addition to this case.
. Despite its determination on the issue -of personal knowledge, - the court ultimately reversed on the issue of impartiality due to’ the judge’s handling of the pase. See id-at 253.-
. Although we have concluded that recusal is not necessary under the specific facts of this case, it would be the better practice for a judge first to notify the parties and gain their consent before making similar inquiries in the future. ■
Dissenting Opinion
dissenting.
I maintain that the Court of Appeals properly concluded that recusal was necessary in this case. While I adhere to the position expressed by both the appellate court’s majority and concurring opinions that “[njothing in the record on appeal' leads this Court to believe that the trial judge holds a prejudice or bias against any party .or that the trial judge cannot remain impartial despite this communication,” Holsclaw v. Ivy Hall Nursing Home, Inc., No. E2016-02178-COA-T10B-CV,
In the trial court, the defendant filed a motion for the plaintiff to be examined by a certified rehabilitation counselor (“CRC”) pursuant to Rule 35.01 of the Tennessee Rules of Civil Procedure. In it, the defendant “asserted that a CRC would be able to ‘testify about the availability of alternative job opportunities in a particular labor market[.]’ ” In opposition, the plaintiff argued “that a CRC could not testify as to the ‘availability of alternative job opportunities in the particular labor mar-két[.]’ ” The trial court then telephoned Dr. Wayne Mulkey, the director of the rehabilitation counselor program at the University of Tennessee.
He just kind of filled me in on what the program, the certification is, what these guys do and don’t do, you know, enough for- me to. at least conclude that this is the type of certification for a person that I might let testify as an expert.
So I understand that what this person might or might not be able to testify to is also going to be limited by what their background, education, and so forth is.
The defendant subsequently filed a motion to recuse, stating that “[bjefore trial, the [c]ourt will have to decide the admissibility of Ivy Hall’s expert’s testimony and, during trial, the [cjourt will have to rule upon objections related to the subject matter.” The defendant also submitted that “[t]he [cjourt ha[d] acquired information from an extrajudicial source that is not available to the parties and [could] not be subjected to scrutiny in the adversarial process.” As such, argued the defendant, the trial court should have recused itself because “(a) the court did not constrain itself to consideration of the facts presented by the parties; (b) the court conducted an independent investigation; and (c) the [c]ourt acquired knowledge from an extrajudicial source.” Indeed, the qualifications of a CRC and his/her expertise on the issue of alternative job opportunities in the appellee’s labor market were issues of disputed fact between the parties.
The Tennessee Code of Judicial Conduct states that “[a] judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned!.]” Tenn. Sup. Ct. R. 10, Canon 2.11(A). This Court reviews a trial judge’s decision on a motion to recuse de novo with no' presumption of correctness. Tenn. Sup. Ct. R. 10B, § 2.06.
Regardless of her-motive, the trial judge undertook an independent investigation of disputed facts by telephoning the director of the program at the University of Tennessee and inquiring about credentials of CRCs, contrary to the Code of Judicial Conduct. Id. at Canon 2.9(C) (“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.”). The. mar jority acknowledges that the trial judge’s actions constituted ex parte communications and an independent investigation. This is exacerbated by the fact, that the conversation was held off the record, and the parties did not know the full content of exactly what was said. As noted by Judge Dinkins’ concurring opinion, by engaging in ex parte communications with the professor “without the knowledge or consent of the parties, the court was not only denied the opportunity to create a record of the purpose for the call prior to it being made, but the parties were denied the opportunity to preserve an objection.” Hol-sclaw,
I agree with the majority that the record is devoid of any evidence of actual partiality on- the part of the trial judge. However, I disagree with the majority opinion’s conclusion that the trial judge’s actions did not create an appearance of impropriety. As noted by the Court of Appeals’ majority^“ ‘because perception is also important, a party does not have to prove actual bias or prejudice’ in order to seek a judge’s recusal,” Holsclaw,• 2016
A trial judge should recuse himself qr herself whenever the judge has any doubt as to his or her ability to preside impartially or whenever his or her impartiality can reasonably be questioned. Pannell v. State,71 S.W.3d 720 , 725 (Tenn. Crim. App. 2001). This is an objective standard. Alley [v. State], 882 S.W.2d [810,] [ ] 820 [ (Tenn. 1994) ]. The appearance of impropriety is conceptually distinct from the subjective approach of a judge facing a possible disqualification challenge and does not depend on the judge’s belief that he or she is acting properly. See Liteky v. United States,510 U.S. 540 , 553, n.2,114 S.Ct. 1147 ,127 L.Ed.2d 474 [] (1994) (“The judge does not have to be subjectively biased or prejudiced, so long as he appears to be so.”). “Thus, while a trial judge should grant a recusal whenever the judge has any doubts about his- or her ability to preside impartially, recusal is also warranted when a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality.” Id.
Based on the facts as outlined in the majority opinion, I believe this is a situation. where impartiality might reasonably be questioned. Moreover, the trial court’s allowing Mr. Smith, the expert requested by the defendant, to examine the plaintiff does not alleviate the perception of impropriety created by her contacting an outside source ex parte and off the record.
While I acknowledge that the question of recusal is close, I have concluded that a line was crossed in this case and that the conduct in question created an appearance of impropriety. I have also concluded that communication of the type in this case wherein a trial judge has an off-the-record ex parte discussion with an individual whose advice could have potential impact on the trial court’s decision-making process would, in most cases, create an appearance of impropriety.
For these-reasons, I agree with the conclusion reached by the Court of Appeals in this case.
. The majority succinctly summarized the procedural' posture of the case at the time the ex parte communication occurred and correctly quoted the trial court's explanation of the telephone call.
. The majority relies-on the definition of "personal knowledge” in deciding that the trial judge’s actions were permissible. See Tenn. Sup. Ct. R. 10, Canon 2.11(A)(1) (noting a violation of the canon when "[t]he judge has .,. personal knowledge of facts that are in dispute in the proceeding” (emphasis added)). While I agree with the majority's thorough .explanation of the term "personal knowledge,” I nonetheless maintain that the scenario in this case creates an appearance of im? propriety,
. It is certainly acceptable for a trial court to consult with an expert. Tenn. Sup. Ct. R. 10, Canon 2.9(A)(2)("A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge, if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties a reasonable opportunity to respond to the advice received.”). However, this should be done on the record and with notice to and participation by the parties. The manner in which the contact was made in this case leaves an appearance of impropriety. I also note that the professor with whom the trial judge spoke was not an expert on the law.