In Re Bell

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

May 11, 2011 Session Heard at Knoxville

IN RE: THE HONORABLE JOHN A. BELL, JUDGE,

GENERAL SESSIONS COURT OF COCKE COUNTY, TENNESSEE

Direct Appeal from the Court of the Judiciary

No. 08-3508

No. M2010-01447-SC-R3-CJ - Filed June 10, 2011

In this direct appeal of a judicial disciplinary proceeding, we are asked to review the Court

of the Judiciary’s decision that Cocke County General Sessions Court Judge John A. Bell

violated various canons of the Tennessee Code of Judicial Conduct, resulting in sanctions

that included a ninety-day suspension. The Court of the Judiciary found that Judge Bell

violated the Code by taking nine months to decide the complainant’s personal injury action,

re-hearing the case without disclosing to a new party that he had previously made findings

against the new party as to liability and damages, and contacting through an attorney the self-

represented complainant while the complainant’s case was still pending before him in

General Sessions Court. We affirm the code violations with respect to the delay and the ex

parte communication and affirm the sanctions.

Tenn. Code Ann. § 17-5-310(a) (2009) Appeal as of Right; Judgment of the Court of

the Judiciary Affirmed in Part and Affirmed as to Sanctions

C ORNELIA A. C LARK, C.J., delivered the opinion of the Court, in which J ANICE M. H OLDER,

G ARY R. W ADE, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

W. Gordon Ball and W. Allen McDonald, Knoxville, Tennessee, for the appellant, Judge

John A. Bell.

Timothy R. Discenza, Memphis, Tennessee, and Patrick J. McHale, Nashville, Tennessee,

for the appellee, Court of the Judiciary.

OPINION

BACKGROUND

John A. Bell was licensed to practice law in Tennessee in 1983 and has served as

Cocke County General Sessions Judge since September of 1998. He was re-elected to his

judicial office in 2006. This appeal arises out of a Complaint Against Judge Under Code of

Judicial Conduct filed by David J. Pleau on July 14, 2008. After a full initial investigation,

a three-judge investigative panel of the Court of the Judiciary found reasonable cause to

believe that Judge Bell committed a judicial offense and directed disciplinary counsel to file

formal charges against Judge Bell. See Tenn. Code Ann. § 17-5-304(d)(2)(A) (2009). The

Court of the Judiciary heard the formal charges against Judge Bell on June 2-3, 2010. After

deliberations, the court announced its decision on the record on June 3, 2010, and

memorialized its decision in a written order filed on June 14, 2010. We take our recitation

of the facts from the record of the proceedings before the Court of the Judiciary, including

the exhibits admitted into evidence and the testimony offered at trial.

Facts

In December 2006, Pleau was involved in an automobile accident with Jo Ann

Coleman, an uninsured motorist. On August 9, 2007, Pleau, acting pro se, filed a civil

warrant in Cocke County General Sessions Court (“Pleau I”). The civil warrant named

Merastar Insurance Company (“Merastar”), Pleau’s uninsured motorist carrier, as a

defendant, but did not name Coleman.

On September 18, 2007, Judge Bell heard Pleau I. After Pleau presented his case,

Merastar’s attorney submitted a written motion to dismiss. Merastar argued that Tennessee

Code Annotated section 56-7-1206 (2008) required that Pleau first sue Coleman, the

uninsured motorist, before he could name Merastar, his uninsured motorist carrier. At the

end of the hearing, Judge Bell indicated that he would issue his decision in a week.

When no decision was rendered within a week’s time, Merastar’s counsel had his staff

contact Judge Bell’s office to check on the status of the case. On October 2, 2007, counsel

emailed his client to report that Judge Bell’s secretary “advised that [Judge Bell] has ruled

but the Order has not yet been typed.” Over the following months, Pleau and staff for

Merastar’s counsel each regularly inquired about the status of the case, receiving

reassurances that Judge Bell was working on the case.

Judge Bell finally decided Pleau I on June 27, 2008, nine months after the trial. Judge

Bell’s order found that the “Other Driver” (Coleman) was 100% at fault and that Pleau’s

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vehicle had sustained $4,726.78 in damages. However, because Pleau had failed to name

Coleman as a defendant pursuant to section 56-7-1206, Judge Bell dismissed the action

against Merastar without prejudice.

Due to an apparent oversight by the General Sessions Court Clerk, neither Pleau nor

Merastar’s counsel timely received a copy of the judgment. Merastar’s counsel learned that

the judgment had been filed during one of his staff’s periodic inquiries regarding the status

of the case. Merastar’s counsel obtained a copy of the judgment on request via a fax from

the clerk’s office, and, concerned that Pleau also might not have received the judgment, sent

him a copy of the judgment by certified mail, return receipt requested, on July 9, 2008.

When Pleau went to the clerk’s office on July 10, 2008, with a copy of the judgment, he

intended to appeal Judge Bell’s decision, only to discover that the ten-day period for filing

an appeal had expired. Therefore, on July 14, 2008, Pleau filed a complaint against Judge

Bell with the Court of the Judiciary. The substance of the single-issue complaint was that

Judge Bell did not decide Pleau’s civil case in a timely manner and that, once the judgment

was entered, Pleau did not receive notice of the judgment until after the time for appeal had

expired.

Disciplinary counsel for the Court of the Judiciary sent Judge Bell a copy of Pleau’s

complaint and asked Judge Bell to respond to the complaint. On July 17, 2008, Judge Bell

responded with a sworn affidavit, asserting that he had “done nothing wrong or improper”

and then describing the “extensive legal research” he had undertaken concerning Merastar’s

motion. In addition to researching all state and federal statutory and case law associated with

the language found in section 56-7-1206, Judge Bell also asserted that he had conducted

nationwide research on whether Merastar’s failure to raise its motion before trial amounted

to a waiver. Furthermore, Judge Bell explained that he had disposed of more than 12,000

cases while Pleau I was under advisement and had been temporarily disabled by an

automobile accident in April 2008. At trial, Judge Bell testified that a computer crash during

the Christmas 2007 holiday also set him back in deciding Pleau I.

While disciplinary counsel continued to exchange correspondence with Judge Bell

concerning the ethics complaint, Pleau filed a second civil warrant on October 8, 2008, again

seeking damages for the December 2006 accident (“Pleau II”).1 The civil warrant in Pleau

II named Coleman and subsequently Merastar as defendants.

On October 26, 2008, disciplinary counsel sent Judge Bell a letter notifying him that

an investigative panel of the Court of the Judiciary had authorized a full investigation.

1

Because Cocke County has only one General Sessions judge, this case automatically was under

Judge Bell’s authority.

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Pursuant to statutory notice requirements, the letter informed Judge Bell of the identity of the

complainant, the underlying factual allegations, the canons and rules allegedly violated,

Judge Bell’s duty to respond, and the opportunity to meet with disciplinary counsel. See

Tenn. Code Ann. § 17-5-304(c)(1). The letter also stated, “This investigation can be

expanded if appropriate.”

On December 15, 2008, Judge Bell sent a letter to disciplinary counsel, stating that

the clerk’s office had mistakenly failed to notify the parties of the filing of the judgment.

Judge Bell also stated that he would conduct a hearing with the Pleau I parties on December

23, 2008 to correct the mistake by the clerk’s office. By letter to disciplinary counsel dated

December 29, 2008, Judge Bell explained what transpired at the December 23 hearing.

Judge Bell apologized for the delay in deciding Pleau I and for the clerk’s office’s failure to

mail the order. He provided both Pleau and Merastar’s counsel with a copy of the June 27,

2008 judgment “for formal service.” He also acknowledged that Pleau had filed Pleau II,

which was set for trial on February 20, 2009.2

Judge Bell testified that, about a week after the December 23, 2008 hearing, he

received an anonymous telephone call indicating that Pleau did not want to pursue the

complaint he had filed in the Court of the Judiciary. During the same time frame, in a letter

dated January 9, 2009, disciplinary counsel offered to settle the complaint against Judge Bell

by issuance of a public letter of reprimand and informed him that, if he did not accept the

reprimand, formal charges would be filed against him. Judge Bell testified that, before he

responded to disciplinary counsel’s offer of a reprimand, he wanted to know Pleau’s intent

regarding the complaint.

Therefore, on February 2, 2009, Judge Bell approached Thomas J. Testerman, a local

attorney, in the courthouse hallway and asked to meet with him in chambers. Judge Bell

testified that he explained to Testerman that Pleau had filed two cases in General Sessions

Court, one of which was still pending. He explained the nature of the ethical complaint filed

against him. Judge Bell also explained to Testerman that disciplinary counsel had set a time

frame for accepting the public reprimand and that Judge Bell had information that Pleau was

not going to proceed with the judicial complaint. Judge Bell testified that he asked

Testerman to represent him for the purpose of “find[ing] out simply whether or not Mr. Pleau

was going to go forward with the [judicial] complaint.” Testerman testified that the “gist”

of the conversation was that Judge Bell believed it would not be appropriate for him to

2

Judge Bell did not enter an order following the December 23, 2008 hearing. Coleman did not

receive notice of the hearing and, therefore, did not attend. She was, however, subsequently given notice

about the February 20, 2009 proceeding in Pleau II, and the transcript from that proceeding reflects that

Coleman attended and participated.

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contact Pleau directly, but he wanted Pleau to be contacted. Judge Bell paid Testerman $1

for this representation.

Judge Bell testified that he did not tell Testerman that it would be inappropriate for

Judge Bell to contact Pleau himself. Instead, Judge Bell testified that he sought out

Testerman because he did not want to be unrepresented in the judicial complaint. Judge Bell

testified that he did not believe the phone call from Testerman to Pleau would qualify as an

ex parte communication by Judge Bell because the call was focused exclusively on the issue

of whether Pleau intended to proceed with the judicial complaint and would not involve any

details pertaining to Pleau II.

Later in the day on February 2, 2009, Testerman called and reached Pleau at his home

telephone number. Testerman and Pleau both testified that Testerman said he was calling

because Judge Bell did not believe it would be appropriate to contact Pleau directly. Pleau

indicated that he did not want to dismiss his judicial complaint against Judge Bell. Pleau

testified that he told Testerman, “[M]y mind is on the civil suit right now and I don’t want

to be sidetracked into other issues.” Testerman testified that, during the phone call, Pleau

talked about the facts of the underlying accident, and Testerman participated in those

discussions. After the phone conversation, Testerman contacted Judge Bell to report that

Pleau would not withdraw his judicial complaint. Testerman and Judge Bell both testified

that Testerman’s representation of Judge Bell concluded once Testerman communicated

Pleau’s decision not to dismiss the judicial complaint.

Although the parties were cordial during the telephone conversation, Pleau testified

negatively at trial before the Court of the Judiciary about the fact that Testerman had

contacted him. According to Pleau’s testimony, Testerman did not simply ask if Pleau

intended to pursue his complaint against Judge Bell, but affirmatively requested that Pleau

come to Testerman’s office and sign paperwork dismissing the judicial complaint. Pleau

testified that he “didn’t like getting called by somebody telling me how to . . . run my life.”

Pleau further testified that Testerman’s call “kind of irritated me because I really didn’t think

it was any of his business what I was doing.”

By letter dated February 6, 2009, Judge Bell turned down the public reprimand offer,

maintaining that he could not accept it in good conscience because he had not committed any

ethical violation in deciding Pleau I. Judge Bell did not inform disciplinary counsel of the

anonymous phone call or Testerman’s conversation with Pleau on Judge Bell’s behalf.

Before the start of the February 20, 2009 Pleau II hearing, Pleau spoke with David

LaRue, a special investigator for the Court of the Judiciary whom disciplinary counsel had

assigned to investigate Pleau’s complaint. Pleau described to LaRue the details of

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Testerman’s phone call. After the hearing, LaRue accompanied Pleau to a local library,

where Pleau prepared an affidavit that summarized his conversation with Testerman. LaRue

and Pleau then went to a local attorney’s office to have the affidavit notarized. Because he

“felt like the information in the affidavit was significant enough,” LaRue went immediately

to the local district attorney’s office and faxed the affidavit to disciplinary counsel.3

After several continuances, Judge Bell ultimately tried Pleau II on April 24, 2009. In

the order entered on April 27, 2009, Judge Bell found that Coleman was 100% at fault and

that Pleau’s vehicle had sustained $4,726.78 in damages.4 Both findings were identical to

Judge Bell’s findings in Pleau I. During the Pleau II proceedings, Judge Bell did not disclose

to Coleman that he had previously heard testimony and made findings concerning the same

accident in Pleau I. Nor did Judge Bell disclose to Coleman or Merastar that Testerman had

communicated ex parte with Pleau on Judge Bell’s behalf concerning the complaint Pleau

filed with the Court of the Judiciary. Judge Bell testified that he did not believe that hearing

the testimony in Pleau I disqualified him from hearing Pleau II because he had merely tried

the case but did not have personal knowledge of the facts. He also testified that he did not

disclose Testerman’s contact with Pleau on his behalf because he thought the judicial

complaint remained confidential prior to filing of formal charges and because he did not ask

Testerman to communicate with Pleau about the Pleau II action.

Charges and Findings of the Court of the Judiciary

On October 13, 2009, disciplinary counsel filed formal charges against Judge Bell.

The formal charges contained three counts, each alleging violations of multiple canons of the

Tennessee Code of Judicial Conduct.5 Count I alleged that Judge Bell failed to decide Pleau

3

Consistent with Pleau’s trial testimony, the affidavit states that Testerman called Pleau on Judge

Bell’s behalf, began the conversation by saying that Judge Bell realized it would be inappropriate to call

Pleau directly, and asked Pleau to come to Testerman’s office to sign dismissal paperwork. During the

conversation, Pleau informed Testerman that he would not dismiss any pending action because he was

focused on the upcoming civil suit.

LaRue later arranged a meeting in Sevierville between Pleau and representatives of the Attorney

General’s Office and Tennessee Bureau of Investigation. At the direction of law enforcement, Pleau called

Testerman’s office and made an appointment to meet about dismissing the judicial complaint. During the

meeting, Pleau asked repeatedly if dismissing the complaint would be to his advantage in Pleau II, and

Testerman consistently responded that it would not affect the outcome one way or the other.

4

Merastar appealed Judge Bell’s decision in Pleau II and ultimately settled the case for $500.

5

After filing the formal charges, disciplinary counsel later filed a motion to amend on February 10,

(continued...)

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I promptly because his decision came “some nine months after the presentation of the proof

and the clear mandate of the law requiring a dismissal of the complaint.” Count II alleged

that Judge Bell, having already opined on liability and damages associated with the

underlying automobile accident in Pleau I, was prejudiced against Coleman and required to

disqualify himself from hearing Pleau II. Count III alleged that, while Pleau II was pending

in his General Sessions Court, Judge Bell had initiated a prohibited ex parte communication

by having Testerman contact Pleau about dismissing the complaint Pleau had filed in the

Court of the Judiciary.

On June 2-3, 2010, an eight-member panel of the Court of the Judiciary heard the

complaint against Judge Bell.6 By written order filed June 14, 2010, the Court of the

Judiciary issued its findings of fact and conclusions of law. As to Count I, the Court of the

Judiciary found a violation of Canon 3(B)(8) of the Tennessee Code of Judicial Conduct.7

Noting the admission that Judge Bell decided Pleau I nine months after its hearing, the Court

of the Judiciary found that Judge Bell’s testimony concerning the reasons for his delay was

“not credible.”

As to Count II, the Court of the Judiciary found a violation of Canon 3(E)(1).8 In

addition to the rule itself, the court quoted an excerpt from the canon commentary stating that

“[a] judge should disclose on the record information that the judge believes the parties or

5

(...continued)

2010. By order dated May 14, 2010, the Court of the Judiciary granted the motion as to certain factual

allegations but denied as to additional charges that disciplinary counsel had not first presented to the

investigative panel. See Ct. of the Judiciary R. 6, § 3(b)-(c). In its order on the motion to amend, the Court

of the Judiciary also struck sua sponte those allegations in the formal charges that Judge Bell had violated

provisions outside of the Tennessee Code of Judicial Conduct, including various criminal statutes.

6

Circuit Court Judge Don Ash, presiding judge of the Court of the Judiciary, presided over the

hearing. The other members of the panel were Criminal Court Judge Chris Craft; Municipal Judge Joe

Fowlkes; Richard Manahan, a lay member; Circuit Court Judge Jean Stanley; attorney Paul DeHoff; Court

of Appeals Judge D. Michael Swiney; and General Sessions Judge David Loughry.

7

Tennessee Supreme Court Rule 10, Canon 3(B)(8) provides: “A judge shall dispose of all judicial

matters promptly, efficiently, and fairly.”

8

Canon 3(E)(1) states, in pertinent part:

A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality

might reasonably be questioned, including but not limited to instances where:

(a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or

personal knowledge of disputed evidentiary facts concerning the proceeding[.]

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their lawyers might consider relevant to the question of disqualification, even if the judge

believes there is no real basis for disqualification.” The Court of the Judiciary found that

Judge Bell violated this canon by (1) failing to disclose to Coleman that he had previously

tried the case in Pleau I and found her to be 100% at fault for the accident and (2) failing to

disclose to Coleman or Merastar that he had communicated with Pleau through Testerman

about the complaint pending before the Court of the Judiciary.

As to Count III, the Court of the Judiciary found a violation of Canons 2(A) and

3(B)(7),9 finding that Pleau’s litigation in General Sessions Court “was so entwined with the

complaint filed by Mr. Pleau” before the Court of the Judiciary that Judge Bell’s contacting

Pleau through Testerman amounted to an ethical violation.

In determining the appropriate sanction, the Court of the Judiciary considered the

factors set forth in Tennessee Code Annotated section 17-5-301(i) (2009) and found that the

following factors applied: prior complaints about Judge Bell, including a prior warning for

delay;10 misconduct occurring both inside and outside the courtroom; no evidence of effort

to change or modify conduct; misconduct occurring while acting in an official capacity; the

failure to acknowledge the nature and impropriety of his actions; and the effect of his

misconduct on the integrity of and respect for the judiciary. See id. § 17-5-301(i)(3)-(6), (8)-

(9). The Court of the Judiciary suspended Judge Bell for ninety days without impairing his

9

Canon 2(A) provides: “A judge shall respect and comply with the law and shall act at all times in

a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

Canon 3(B)(7) provides that, except in enumerated circumstances, “[a] judge shall not initiate,

permit, or consider ex parte communications, or consider other communications made to the judge outside

the presence of the parties concerning a pending or impending proceeding.” The Court of the Judiciary found

the violation of Canon 3(B)(7) by a vote of five to three. The findings of Judge Bell’s violations of other

canons were unanimous.

Additionally, the Court of the Judiciary found that Judge Bell did not violate other canons set forth

in the formal charges. We do not enumerate those canons because the findings of no violation are not at

issue in this appeal.

10

Prior to the proceedings at issue in this case, Judge Bell was involved in two other disciplinary

proceedings before the Court of the Judiciary. On September 25, 2005, Judge Bell received a warning from

an investigative panel for delay in a case tried in September 2001 and decided in January 2003. He had also

been named in a formal complaint for allegations of misconduct involving his use of a private probation

service that employed his brother-in-law. Disciplinary counsel and Judge Bell ultimately settled that

complaint on September 23, 2008, with Judge Bell agreeing not to appoint or use a private probation service

with an owner, director, agent or employee whose relationship to Judge Bell or his spouse would suggest

nepotism or favoritism.

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compensation,11 required him to decide all future cases within thirty calendar days from the

date of hearing, and ordered forty-two hours of judicial ethics training to be completed in

2010-12.

Pursuant to Tennessee Code Annotated section 17-5-310(a) (2009), Judge Bell

appealed the Court of the Judiciary’s decision to this Court as a matter of right.

AUTHORITY TO DISCIPLINE JUDGES

The Supreme Court of Tennessee is a “direct creature of the Constitution and

constitutes the supreme judicial tribunal of the state.” Barger v. Brock, 535 S.W.2d 337, 340

(Tenn. 1976). Accordingly, the Court has broad inherent authority over the Tennessee

judicial system. Belmont v. Bd. of Law Exam’rs, 511 S.W.2d 461, 463 (Tenn. 1974)

(quoting Cantor v. Brading, 494 S.W.2d 139, 142 (Tenn. Ct. App. 1973)). The General

Assembly has recognized that this Court has “general supervisory control over all the inferior

courts of the state,” Tenn. Code Ann. § 16-3-501 (2009), and that this inherent, plenary

power derives from the common law and not from the General Assembly. Tenn. Code Ann.

§§ 16-3-502 to -503 (2009). In that role, the Supreme Court has the inherent power to adopt

the ethics rules for judges and to determine how judges should be disciplined for violation

of those rules. Tennessee Supreme Court Rule 10, the Code of Judicial Conduct, is the set

of rules by which judicial conduct is to be determined. Cf. Hughes v. Bd. of Prof’l

Responsibility, 259 S.W.3d 631, 640 (Tenn. 2008) (describing this Court’s “duty to regulate

the practice of law” and “ultimate disciplinary responsibility for violations of the rules

governing our profession”).

11

Pursuant to article VI, section 7 of the Tennessee Constitution, a judge’s compensation “shall not

be increased or diminished during the time” the judge has been elected to serve. See Tenn. Code Ann. § 17-

5-301(h) (2009) (explaining that no sanction imposed by the Court of the Judiciary may violate this

constitutional provision). Judge Bell has already served the suspension.

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In Tennessee, current disciplinary authority is vested in the Court of the Judiciary.12

As we noted in In re Williams:

The Court of the Judiciary was created by the Legislature to investigate

and determine charges of judicial misconduct. The legislation provides a

process by which sanctions may be imposed and a process for implementation

of Article VI of the Tennessee Constitution by providing a procedure for the

removal of Judges from office. Tenn. Code Ann. § 17-5-[311 (2009)].

987 S.W.2d 837, 838 (Tenn. 1998). While the Supreme Court has the authority to create its

own separate process for all judicial discipline short of impeachment, the current legislation

dealing with discipline as it relates to the ultimate possibility of impeachment has, at least

to date, been deemed by the Court sufficient to facilitate the Court’s exercise of its inherent

disciplinary authority over the lower courts.13

12

The other forty-nine states and the District of Columbia, like Tennessee, all have codified rules

of judicial conduct and a judicial conduct commission to investigate judicial misconduct. See Links of

Int e r e s t , Ame r ic a n Ba r As s o c i a t i o n Ce n t e r f o r Pr o f e s si o n a l Res p ons i b i l i t y,

http://www.americanbar.org/groups/professional_responsibility/resources/links_of_interest.html (last visited

June 8, 2011) (links to judicial conduct rules); Commission Membership, American Judicature Society,

http://www.ajs.org/ethics/pdfs/Commissionmembership.pdf (last updated March 2007) (listing names and

composition of judicial conduct commissions) (“Commission Membership”). The commissions in all but

three states have at least one judicial member who is elected or appointed by other judges or is entitled to

a position on the commission by virtue of holding a particular judicial office. See Commission Membership,

supra.

13

Tennessee Constitution article II, section 2 prohibits one branch of government from exercising

powers properly belonging to another branch. However, the Constitution of Tennessee does not prohibit the

three branches of government from cooperating with each other. As this Court noted over fifty years ago,

“[t]he public welfare demands cooperation between the legislative and judicial branches of our Government,

and an avoidance of unnecessary controversies between them.” Petition for Rule of Court Activating,

Integrating & Unifying the State Bar of Tenn., 282 S.W.2d 782, 787 (1955).

Consistent with the Constitution, the General Assembly may enact statutes that aid the Court in the

exercise of its inherent supervisory power. Belmont, 511 S.W.2d at 464. However, the General Assembly

may not enact statutes that frustrate or are in direct conflict with the Court’s exercise of its powers. The

creation of the Court of the Judiciary in 1979 is an example of inter-branch cooperation. See 1987 Op. Tenn.

Atty. Gen. No. 87-02. It provided a single mechanism, acceptable to the Court, that facilitated the Court’s

exercise of its supervisory authority over the lower courts and, at the same time, facilitated the General

Assembly’s exercise of its authority over impeachment and removal.

In the case of In re Murphy, 726 S.W.2d 509 (Tenn. 1987), we confronted the argument that the

legislation creating the Court of the Judiciary unconstitutionally permitted the Court of the Judiciary, rather

(continued...)

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STANDARD OF REVIEW

Disciplinary counsel must establish charges of misconduct by clear and convincing

evidence. Tenn. Code Ann. § 17-5-308(d) (2009). We review the Court of the Judiciary’s

findings and conclusions de novo on the record made before that court. Tenn. Code Ann. §

17-5-310(b)(1); see In re Williams, 987 S.W.2d at 841. No presumption of correctness

attaches to the Court of the Judiciary’s findings or judgment. Tenn. Code Ann. § 17-5-

310(b)(1).

In conducting our de novo review of the Court of the Judiciary’s decision in this case,

we first determine whether clear and convincing evidence establishes Judge Bell’s violation

of the various canons of the Tennessee Code of Judicial Conduct. We then go on to review

de novo the appropriateness of the sanction.

ANALYSIS

Count I

As to Count I, we agree with the Court of the Judiciary that Judge Bell’s delay in

deciding Pleau I violated Canon 3(B)(8) of the Tennessee Code of Judicial Conduct. Judge

Bell cited a number of reasons for his delay. He asserted that he was required to do

significant research on the underlying legal issues, that his heavy general sessions and

juvenile court dockets prevented him from having time to research, that he had a computer

failure in December 2007, and that, as a result of an April 2008 accident in which he was

struck by a drunk driver, he was incapacitated for a period of time. The Court of the

Judiciary specifically found Judge Bell’s testimony concerning those reasons to be “not

credible.” We recognize that the Court of the Judiciary stands “in a better position to

determine credibility issues and resolve conflicts in the evidence because it had the benefit

of hearing the testimony and observing the demeanor of the witnesses firsthand.” In re

Williams, 987 S.W.2d at 841. Merastar’s motion presented a straightforward question of

law: whether Tennessee Code Annotated section 56-7-1206 precluded Pleau from suing

Merastar without first naming Coleman as a defendant. Judge Bell initially told the parties

13

(...continued)

than the General Assembly itself, to recommend the removal of judges. There, a General Sessions Court

judge facing a recommendation of removal from office argued that, since only the General Assembly could

remove judges, the statutes empowering the Court of the Judiciary to investigate and recommend removal

of judges violated the principle of separation of powers. Id. at 511. This Court disagreed, reasoning that the

Constitution did not impose the duty of investigating or monitoring judicial conduct on the General Assembly

and the General Assembly had the authority to enact legislation implementing its performance of its

constitutional obligations in cooperation with the other two branches of government. Id. at 512-13.

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that he would rule within a week of the hearing and responded to subsequent inquiries by

promising a decision within similar periods of time. Indeed, about two weeks after the

hearing, Judge Bell’s secretary communicated to Merastar’s counsel that Judge Bell had

“ruled” but was still getting the order typed. The computer issue occurred more than three

months after the case was heard. The accident involving Judge Bell did not occur until seven

months after the hearing. In taking nine months to decide Pleau I without offering a credible

explanation for his delay, clear and convincing evidence establishes that Judge Bell failed

to decide the matter “promptly” and “efficiently,” as Canon 3(B)(8) requires. Cf. Tenn. Sup.

Ct. R. 11, § III(c) (limiting period for holding cases under advisement to no more than sixty

days and for holding motions under advisement to no more than thirty days, “absent the most

compelling of reasons”).

We disagree with Judge Bell’s contention that a single instance of delay is

insufficient, as a matter of Tennessee law, to make out a violation of Canon 3(B)(8). Judge

Bell points to Tennessee Code Annotated section 17-5-302(7) (2009), which states that the

Court of the Judiciary may take cognizance of “[a] persistent pattern of delay in disposing

of pending litigation.” However, per subsection (3) of the same provision, the Court of the

Judiciary may also address “[v]iolation of the code of judicial conduct as set out in Tenn.

Sup. Ct. R. 10.” Disciplinary counsel formally charged Count I as a violation of Canon

3(B)(8), rather than section 17-5-302(7). Nothing in the canon’s language requires delay in

more than one matter to establish that a judge has failed to “dispose of all judicial matters

promptly, efficiently, and fairly.” Because Canon 3(B)(8) does not require a “pattern” of

delay, we do not need to decide whether Judge Bell’s prior reprimand for delay and the

current case make out a pattern.

Notice

Before we review the substance of the remaining counts, we consider Judge Bell’s

argument that we must dismiss those counts because disciplinary counsel failed to provide

the required statutory notice as to those counts. In this case, the original notice dated

October 26, 2008, advised Judge Bell that disciplinary counsel would investigate the single

issue of Judge Bell’s delay in deciding Pleau I and the parties’ failure to receive the judgment

until the time for appeal had expired. Indeed, at the time disciplinary counsel provided this

notice, the other instances of alleged misconduct had not yet taken place. Our review of the

record indicates that Judge Bell did not receive written notice of the other two counts until

disciplinary counsel filed the formal charges on October 13, 2009.

The relevant statute directs disciplinary counsel, within thirty days of the investigative

panel’s authorization of a full investigation, to provide the judge by certified mail with “[a]

specific statement of the allegations being investigated and the canons or rules being

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investigated and the canons or rules allegedly violated, with the provision that the

investigation can be expanded if appropriate.” Tenn. Code Ann. § 17-5-304(c)(1)(A). The

October 26, 2008 notice in this case complied with the statute because it identified the factual

allegations under investigation, cited the canons allegedly violated, and stated the

investigation could be expanded, if appropriate. Here, disciplinary counsel expanded the

investigation because counsel learned of additional allegations of misconduct that took place

after counsel provided the initial notice. We do not interpret section 17-5-304(c) to prevent

disciplinary counsel from investigating and formally charging additional violations arising

from conduct taking place after disciplinary counsel provided the statutorily required notice.

The formal charges provide adequate notice of the additional charges. Therefore, we decline

to dismiss Counts II and III on notice grounds.

Count II

The Court of the Judiciary’s findings on Count II differ somewhat different from what

disciplinary counsel alleged in the formal charges. In the formal charges, Count II was based

on Judge Bell’s alleged prejudice against Coleman in Pleau II because he had already decided

fault and damages against her in Pleau I. The Court of the Judiciary’s findings on Count II

concluded that Judge Bell should have disqualified himself from Pleau II because of (1) his

failure to disclose to Coleman his prior decision in Pleau I and, additionally, (2) his failure

to disclose to Coleman or Merastar his ex parte communication with Pleau regarding the

judicial complaint. For sake of clarity, we limit our analysis in this section to the first of the

Court of the Judiciary’s findings regarding the allegations in Count II. The legal analysis

relevant to the ex parte communication, including the second finding that Judge Bell should

have disqualified himself from Pleau II for failing to disclose that communication to

Coleman and Merastar’s counsel, is included under the umbrella of Count III.

To the extent that the Court of the Judiciary found that Judge Bell automatically

should have recused himself from Pleau II solely on the basis that he decided Pleau I and

failed to disclose that prior decision to Coleman, we disagree. Judges routinely hear the same

matter on multiple occasions, for instance, when a case is non-suited or after the appellate

court remands the case. “A judge is in no way disqualified because he tried and made certain

findings in previous litigation,” State v. Hines, 919 S.W.2d 573, 578 (Tenn. 1995), and “the

mere fact that a judge has ruled adversely to a party or witness in prior judicial proceedings

is not grounds for recusal.” Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 565 (Tenn.

2001). Therefore, a judge’s prior decision in a case does not, in and of itself, make the judge

prejudiced against any particular party, including a party that enters the case for the first time

following remand. Nor does the fact that the judge previously heard the case give the court

“personal knowledge of disputed evidentiary facts concerning the proceeding.” Tenn. Sup.

Ct. R. 10, Canon 3(E)(1)(a). Similarly, the history of the case does not qualify as

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“information . . . the parties or their lawyers might consider relevant to the question of

disqualification,” see Tenn. Sup. Ct. R. 10, Canon 3(E)(1) cmt., at least insofar as that

language assumes that such information is known only to the judge. The prior proceedings

and court file are a matter of public record, and the fact that the new party may be

unrepresented by counsel and thus fail to investigate the history of the case does not impose

additional duties of disclosure, much less an obligation of disqualification, on the judge

hearing the case. Judge Bell’s failure to disclose to Coleman his prior decision in Pleau I,

standing alone, is not a violation of Canon 3(E)(1).14

Count III

As to the allegations in Count III, we agree with the Court of the Judiciary that Judge

Bell’s phone call to Pleau through attorney Testerman while Pleau II was still pending in

General Sessions Court amounted to an ex parte communication concerning a pending

proceeding, in violation of Canon 3(B)(7). Judge Bell testified that he had received an

anonymous phone call stating that Pleau would not pursue the complaint against Judge Bell.

At the time, Judge Bell had pending a time-sensitive settlement offer from disciplinary

counsel for a public reprimand instead of the institution of formal charges. Judge Bell

testified that he obtained Testerman’s representation to contact Pleau and determine whether

Pleau would go forward with the complaint. Although Judge Bell claimed that he contacted

Pleau through counsel because he did not want to be self-represented in litigating the judicial

complaint, Testerman testified that the “gist” of his conversation with Judge Bell was that

Judge Bell did not believe it was appropriate to contact Pleau directly.

Testerman’s February 2, 2009 phone call on Judge Bell’s behalf amounted to more

than just an inquiry about Pleau’s intentions. Per Pleau’s affidavit and testimony, Testerman

affirmatively requested that Pleau come to Testerman’s office and sign paperwork dismissing

the judicial complaint. Pleau testified that he “didn’t like getting called by somebody telling

me how to . . . run my life.” Pleau further testified that Testerman’s call “kind of irritated

me because I really didn’t think it was any of his business what I was doing.” In declining

to dismiss his judicial complaint, Pleau testified that he told Testerman, “[M]y mind is on the

civil suit right now and I don’t want to be sidetracked into other issues.” Furthermore,

14

Disciplinary counsel also maintains that Judge Bell should have disqualified himself from Pleau

II because, at the December 23, 2008 hearing on Pleau I, Judge Bell discussed with Pleau and Merastar’s

counsel the upcoming trial of Pleau II. The transcript from that hearing reflected Judge Bell’s knowledge

that, although Coleman was absent on December 23, she had been served with the civil warrant in Pleau II.

We do not address disciplinary counsel’s argument because it exceeds the scope of the findings made by the

Court of the Judiciary.

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Testerman testified that he participated in a conversation with Pleau about the underlying

facts of the accident.

Although Judge Bell had dismissed Pleau I by the time of this phone call, Pleau had

already filed Pleau II and served the civil warrant on both Coleman, the new party, and

Merastar. The parties were set to appear before Judge Bell on February 20, 2009, and Judge

Bell was aware of that fact. Thus, Pleau II was “pending” at the time Judge Bell initiated the

ex parte communication through Testerman. Furthermore, Pleau II arose from the same

nucleus of facts as Pleau I, the case that had originally given rise to Pleau’s filing a complaint

with the Court of the Judiciary.

Based on the substance of the phone conversation and the interrelationship among

Pleau I, Pleau’s judicial complaint, and Pleau II, we are persuaded there is clear and

convincing evidence that Testerman’s phone call to Pleau on Judge Bell’s behalf was an ex

parte communication prohibited by Canon 3(B)(7). Judge Bell argues that he did not violate

the canon because he asked Testerman to contact Pleau about the status of Pleau’s complaint

before the Court of the Judiciary, not the Pleau II case then-pending before the General

Sessions Court. However, both Pleau and Testerman testified that Pleau II came up for

discussion during the conversation. The fact that Judge Bell retained an attorney to contact

Pleau instead of contacting Pleau directly is a distinction without a difference. See Link v.

Wabash R.R. Co., 370 U.S. 626, 633-34 (1962); World Relief Corp. of Nat’l Ass’n of

Evangelicals v. Messay, No. M2005-01533-COA-R3-CV, 2007 WL 2198199, at *5 (Tenn.

Ct. App. July 26, 2007) (explaining that because lawyer is client’s agent, “the acts and

omissions of a lawyer undertaken during the course and in the scope of his or her

representation . . . are attributed to th[e] client”).15

Indeed, given that Pleau II was pending at the time, it is hard to fathom how any

reasonable person would not view Testerman’s phone call on Judge Bell’s behalf as

“concerning” Pleau II. Asking a litigant to drop a judicial complaint while the litigant still

has a case pending before the judge creates the perception of a classic quid pro quo scenario.

Pleau’s reaction to the phone call predictably reflects the frustration that a litigant would feel

toward this kind of unwarranted pressure from the judge who is adjudicating his case.

15

We also reject Judge Bell’s argument that he did not violate Canon 3(B)(7) because he did not

“consider” anything Testerman learned in the conversation with Pleau. Canon 3(B)(7) states that “[a] judge

shall not initiate, permit, or consider ex parte communications” (emphasis added). The disjunctive phrasing

means that simply initiating the ex parte communication is enough to establish a violation, regardless of the

extent to which the judge “considers” the information obtained through the communication. See Foster v.

United States, 615 A.2d 213, 216 (D.C. 1992).

-15-

Therefore, in addition to a prohibited ex parte communication, Judge Bell’s initiation of a

phone call asking Pleau to dismiss his judicial complaint manifestly fails to “promote[]

public confidence in the integrity and impartiality of the judiciary.” Tenn. Sup. Ct. R. 10,

Canon 2(A). Clear and convincing evidence also supports the Court of the Judiciary’s

finding that Judge Bell violated Canon 2(A).

Related to the ex parte communication is the Court of the Judiciary’s finding (made

as to Count II) that Judge Bell did not reveal to Coleman or Merastar’s counsel his ex parte

communication with Pleau. Clear and convincing evidence also supports this finding and the

conclusion that, having failed to disclose the ex parte communication, Judge Bell violated

Canon 3(E)(1) by failing to disqualify himself from Pleau II. While the mere filing of

Pleau’s complaint in the Court of the Judiciary did not mandate Judge Bell’s recusal, see

State v. Parton, 817 S.W.2d 28, 29-30 (Tenn. Crim. App. 1991), Testerman’s communication

with Pleau on Judge Bell’s behalf caused Judge Bell’s impartiality to him to reasonably be

questioned. Even if Judge Bell subjectively believed the communication provided no basis

for disqualification, he should have disclosed on the record that, through counsel, he had

inquired whether Pleau intended to proceed with his judicial complaint and had invited Pleau

to counsel’s office to sign dismissal paperwork. Similarly, the other parties were entitled to

know about this communication. Judge Bell should have recognized that Coleman and

Merastar’s counsel might have considered this communication, as well as Pleau’s decision

to continue forward with the complaint, relevant to the question of disqualification. See

Tenn. Sup. Ct. R. 10, Canon 3(E)(1) cmt. Having failed to disclose his communication to

Coleman and Merastar’s counsel, Judge Bell should have disqualified himself from hearing

Pleau II. His failure to do so is clear and convincing evidence of a violation of Canon

3(E)(1).

In summary, we affirm the Court of the Judiciary’s findings that Judge Bell’s delay

in deciding Pleau I violated Canon 3(B)(8) and that Judge’s Bell ex parte communication

through counsel violated Canons 2(A), 3(B)(7), and 3(E)(1). We do not affirm the finding

that Judge Bell’s failure to disclose to Coleman the findings in Pleau I violated Canon

3(E)(1).16 We now proceed to review the penalty assessed by the Court of the Judiciary.

16

We are not persuaded by Judge Bell’s other arguments for relief. Judge Bell claims that

disciplinary counsel selectively prosecuted him because other judges have delayed decisions for much longer

periods of time without being sanctioned. The examples that Judge Bell cites, however, are factually

inapposite because they involve mere delay, and this case involves other misconduct in addition to delay.

Finally, Judge Bell argues that disciplinary counsel improperly refused to produce documents

prepared and reviewed by its testifying investigator, James LaRue. With respect to this issue, however,

Judge Bell fails to make any citation to the record or to offer meaningful argument. Therefore, this issue is

(continued...)

-16-

Appropriateness of Penalty 17

“Intrinsic” to the Code of Judicial Conduct “are the precepts that judges, individually

and collectively, must respect and honor the judicial office as a public trust and strive to

enhance and maintain confidence in our legal system.” Tenn. Sup. Ct. R. 10, Preamble.

Tennessee Supreme Court Rule 10, Canon 1(A) provides that “an independent and honorable

judiciary is indispensable to justice in our society.” Canon 2(A) provides in pertinent part

that a judge shall “respect and comply with the law and shall act at all times in a manner that

promotes public confidence in the integrity and impartiality of the judiciary.” These highest

standards of conduct are necessary to preserve the integrity and independence of the

judiciary. In re Murphy, 726 S.W.2d 509, 515 (Tenn. 1987). As we previously observed in

In re Williams, when a judge violates the Code of Judicial Conduct, it “reflect[s] poorly on

the judicial system as a whole. Public confidence in the performance and impartiality of the

judiciary is maintained only when judges rigorously adhere to the Code of Conduct.

Violations of the Code, if left unaddressed, diminish public confidence and injure the entire

judicial system.” 987 S.W.2d at 844. Furthermore, as the Supreme Court of Wisconsin

stated in affirming a ninety-day suspension as discipline for a judge’s ex parte

communications:

Discipline imposed for judicial misconduct is to be responsive to the

gravity of the misconduct—the actual harm or threat of harm it posed to those

using our court system and to the system itself. Discipline is not intended to

16

(...continued)

waived. See Tenn. R. App. P. 27(a)(7); Chiozza v. Chiozza, 315 S.W.3d 482, 489 (Tenn. Ct. App. 2009).

17

Since the General Assembly created the Court of the Judiciary in 1979, see Act of May 23, 1979,

ch. 356, § 4, 1979 Tenn. Pub. Acts 833, 834, this Court has had relatively few opportunities to review the

Court of the Judiciary’s decisions. See In re Williams, 987 S.W.2d 837; In re Brown, 879 S.W.2d 801 (Tenn.

1994); In re Murphy, 726 S.W.2d 509. In In re Murphy, we affirmed the recommendation that the General

Assembly remove from office a General Sessions Court judge who was convicted in federal court on eleven

counts of mail fraud, one count of perjury, and one count of obstruction of justice. 726 S.W.2d at 510, 515;

see Tenn. Code Ann. § 17-5-311(a) (explaining that, where this Court affirms the Court of the Judiciary’s

recommendation of the judge’s removal, the question of removal is forwarded to the General Assembly for

a final decision). Later, in In re Williams, we again affirmed the recommendation of removal from office

of a General Sessions Court judge who used a jail inmate for personal work (a class A misdemeanor), tried

felony offenses over which the court lacked jurisdiction, and provided false testimony and responses to

interrogatories in a federal proceeding. 987 S.W.2d at 838. In In re Brown, we affirmed the public

reprimand of a Criminal Court judge who delayed seven months before responding to a judicial complaint.

879 S.W.2d at 807; cf. United States v. Lanier, 520 U.S. 259, 261 (1997) (adjudicating appeal of Chancery

Court judge who was convicted pursuant to federal criminal statute of violating victims’ constitutional rights

by sexually assaulting them).

-17-

punish the judge; it serves to protect our court system and those having

recourse to it from further, similar abuses. . . .

....

Inevitably, members of the public will, from time to time, disagree with

decisions of our courts, but that disagreement should never rest upon lack of

confidence in the court’s integrity. Public confidence in the integrity of the

judicial system is essential. It is our responsibility, and the responsibility of

every judge, to merit and maintain that confidence. The suspension we impose

is a measure of the seriousness of [the judge’s] actions and is designed to

foster confidence in the integrity the public has every right to expect and

demand of its judicial system.

In re Disciplinary Proceedings Against Aulik, 429 N.W.2d 759, 768 (Wis. 1988).

According to the Preamble to our Code of Judicial Conduct:

[w]hether disciplinary action is appropriate, and the degree of discipline to be

imposed, should be determined through a reasonable and reasoned application

of the text and should depend on such facts as the seriousness of the

transgression, whether there is a pattern of improper activity, and the effect of

the improper activity on others or on the judicial system.

Tenn. Sup. Ct. R. 10, Preamble. By statute, the Court of the Judiciary has the power to

impose an enumerated sanction (or combination of sanctions), including “[s]uspension

without impairment of compensation” and “limitations and conditions on the performance

of judicial duties.” Tenn. Code Ann. § 17-5-301(f)(1)-(2) (2009). The statute also sets forth

a list of criteria for the Court of the Judiciary to consider in determining the appropriate

sanction(s). Tenn. Code Ann. § 17-5-301(i).

In this case, the Court of the Judiciary found that the following statutory criteria

applied: prior complaints about Judge Bell, including a prior warning for delay; misconduct

occurring both inside and outside the courtroom; no evidence of effort to change or modify

conduct; misconduct occurring while acting in an official capacity; the failure to

acknowledge the nature and impropriety of his actions; and the effect of his misconduct on

the integrity of and respect for the judiciary. See Tenn. Code Ann. § 17-5-301(i)(3)-(6), (8)-

(9). For Judge Bell’s violations of the Code of Judicial Conduct, the Court of the Judiciary

determined the appropriate sanctions to be a ninety-day suspension without impairment of

-18-

compensation, a requirement to decide all future cases within thirty calendar days of the

hearing, and the completion of judicial ethics training.18

The Court of the Judiciary carefully considered all the factors in imposing a penalty.

Even though we disagree with one portion of the Court of the Judiciary’s findings, we do not

disagree with its conclusion about the serious nature of the other findings. To maintain the

integrity of and public confidence in our judicial system and to discourage similar instances

of misconduct in the future, we affirm the sanctions that the Court of the Judiciary has

imposed on Judge Bell.

Conclusion

For the reasons stated above, we affirm the Court of the Judiciary’s judgment

concerning the violations of the Code of Judicial Conduct arising from Judge Bell’s delay

in deciding Pleau I and his ex parte communication through attorney Testerman. For the

reasons stated in the Count II analysis, we reverse the Court of the Judiciary’s judgment

concerning the violation arising from Judge Bell’s failure to disclose to Coleman his prior

decision in Pleau I. We also affirm the determination of sanctions, including the ninety-day

suspension. Costs of this appeal are taxed to Judge John A. Bell and his surety, for which

execution may issue, if necessary.

_________________________________

CORNELIA A. CLARK, CHIEF JUSTICE

18

The Court of the Judiciary’s order allocated the judicial ethics training as follows: twenty-four

hours in 2010, twelve hours in 2011, and six hours in 2012.

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