Keene Corp. v. Rogers

BLEIL, Justice,

dissenting.

Originally, I concurred with the majority’s decision to affirm the trial court’s judgment. Upon further consideration, I have concluded that I cannot join in the decision. Therefore, I dissent.

My disagreement with the majority’s decision concerns the RECUSAL portion of the court’s opinion, specifically the portion pertaining to Tex.R.Civ.P. 18b(2)(a), which provides for a judge to be recused when his impartiality might reasonably be questioned.

The judiciary must strive not only to give all parties a fair trial but also to maintain a high level of public trust and confidence. Indemnity Ins. Co. v. McGee, 163 Tex. 412 , 356 S.W.2d 666, 668 (1962). Sometimes the judge may need to recuse himself, or be recused, even though he has no actual bias and would do his very best to weigh the scales of justice equally between contending parties. See Marshall v. Jerrico, Inc., 446 U.S. 238, 243 , 100 S.Ct. 1610, 1613 , 64 L.Ed.2d 182 (1980). The problem is that people who have not served on the bench are often all too willing to indulge suspicions and doubts concerning the integrity of judges. Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 864-65 , 108 S.Ct. 2194, 2204-05 , 100 L.Ed.2d 855 (1988).

This court has previously affirmed the noble public policy that lies at the foundation of our recusal rules. In CNA Ins. Co. v. Scheffey, 828 S.W.2d 785, 792 (Tex.App.-Texarkana 1992, writ denied), we wrote that,

Public policy demands that a judge who tries a case act with absolute impartiality. Prendergass v. Beale, 59 Tex. 446, 447 (1883). It further demands that a judge appear to be impartial so that no doubts or suspicions exist as to the fairness or the integrity of the court. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 , 106 S.Ct. 1580 , 89 L.Ed.2d 823 (1986). Judicial decisions rendered under circumstances that suggest bias, prejudice or favoritism undermine the integrity of the courts, breed skepticism and mistrust, and thwart the principles on which the judicial system is based. Sun Exploration and Prod. Co. v. Jackson, 783 S.W.2d 202, 206 (Tex.1989) (Spears, J., concurring).

This court today takes a further step toward recognizing the significance of maintaining the integrity of the judicial system by recognizing the existence of a good cause exception to allow the late filing of a motion to recuse in instances in which the basis for the motion arises untimely. I agree with and applaud the recognition that the law must allow a motion to recuse to be filed late when the grounds arise late or with due diligence are discovered late.

I agree with the majority that the trial judge in this case was not legally disqualified because his son-in-law took a job with a law firm that was participating in the trial. The reason for my disagreement with the majority is simple: I believe that when a judge’s son-in-law is associated with a law firm which is participating in a case before that judge,then that judge’s impartiality might reasonably be questioned. 8 The majority erroneously bases its resolution of this question on no showing of financial interest in the litigation and no showing of active participation in the trial. It fails to consider the appearance of partiality that might be given. It fails to see the difference between what is and what appears to be. Consequently, it fails to see that under the circumstances Judge Brown’s impartiality might reasonably be questioned.

It appears to me that the majority views the issue as one concerning disqualification, not recusal. Where the majority and I part philosophically is when it says that the record shows that the judge’s impartiality could not reasonably be questioned. The reasons it gives are essentially that (1) the son-in-law has no direct financial interest in the litigation’s outcome, and (2) several federal courts have examined the “federal equivalent to Rule 18(b)(2)” and have found that a trial judge’s relationship to an employee of a law firm appearing in the case does not require *181 recusal unless the relative actually works on the case.

These reasons simply are not valid when they are closely scrutinized. The first reason, no direct financial interest, is patently not relevant to 18b(2)(a) (impartiality might reasonably be questioned) inquiries. And, we are not discussing disqualification under Texas Rule 18b(l) or recusal under 18b(2)(e), (f), (g). This reason fails.

The “federal equivalent to Rule 18b(2),”-with-supporting-federal-cases reason likewise cannot bear scrutiny. The fact is that the Texas rule covers disqualification and recu-sal, whereas the federal rule only covers disqualification. 9 In Texas courts a proce *182 dural means is provided for airing the motion to recuse before an assigned, neutral judge. Tex.R.CivP. 18a. Under the federal rule, no procedural means is provided and the federal district judge simply decides whether he or she is disqualified. The federal Judiciary and Procedure Rule, 28 U.S.C.A. § 455 (West Supp.1993), does not even mention the word recusal. 10

*183 Although the terms disqualification and re-cusal of judges are sometimes used interchangeably, such use is erroneous. See William W. Kilgarlin & Jennifer Bruch, Disqualification and Recusal of Judges, 17 St. Maey’s L.J. 599, 601 (1986). The majority may have fallen into error by failing to recognize this distinction. In Texas, the requirements and procedures governing disqualification and recusal are separate and distinct. Id. Within the federal system, disqualification is governed by 28 U.S.C.A. § 455 . Re-cusal does not appear to be governed by any written rule.

The federal counterpart to Rule 18b (2) simply is not the “equivalent” of that rule. 11 And the federal cases the majority cites fail to make its decision any sounder. In the federal cases cited by the majority, the relative’s active participation in the pending litigation was a decisive factor in determining whether the judge was automatically disqualified under 28 U.S.C.A. § 455 (b)(5)(ii) because a close relative was acting as a lawyer in the proceeding. See United States ex rel. Weinberger v. Equifax, Inc., 557 F.2d 456, 463 (5th Cir.1977), cert. denied, 434 U.S. 1035 , 98 S.Ct. 768 , 54 L.Ed.2d 782 (1978); Wilmington Towing Co. v. Cape Fear Towing Co., 624 F.Supp. 1210, 1212 (E.D.N.C.1986); Diversifoods, Inc. v. Diversifoods, Inc., 595 F.Supp. 133, 137-38 (N.D.Ill.1984). None of these eases, however, says that a reasonable question regarding the judge’s impartiality can arise only if the relative actually works on the case.

During the trial of this complex litigation, the trial judge’s son-in-law started work at the plaintiffs attorney’s law firm. This fact might or might not cast doubt on the trial judge’s impartiality. Here, as soon as this fact was learned, Keene’s attorneys moved to recuse the judge, questioning his impartiality. Under the circumstances of this case and the law of this state, this court errs in holding that the judge’s impartiality might not reasonably be questioned. Because the trial judge’s impartiality was reasonably questioned, the trial judge should have been re-cused.

. Consideration of a hypothetical illuminates this issue: If you had a case in court, would you want the judge’s son-in-law to work for the law firm handling the other side of the suit? I dare say most people, if asked, would respond in the negative. Their reasons for not wanting that situation would probably include a concern that the judge might be partial.

. TexR.Civ.P. 18b is entitled "Grounds for Disqualification and Recusal of Judges.” It provides:

(1) Disqualification. Judges shall disqualify themselves in all proceedings in which:

(a) they have served as a lawyer in the matter in controversy, or a lawyer with whom they previously practiced law served during such association as a lawyer concerning the matter; or

(b) they know that, individually or as a fidu-ciaiy, they have an interest in the subject matter in controversy; or

(c) either of the parties may be related to them by affinity or consanguinity within the third degree.

(2) Recusal. A judge shall recuse himself in any proceeding in which:

(a) his impartiality might reasonably be questioned;

(b) he has a personal bias or prejudice concerning the subject matter or a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(c) he or a lawyer with whom he previously practiced law has been a material witness concerning it;

(d) he participated as counsel, adviser or material witness in the matter in controversy, or expressed an opinion concerning the merits of it, while acting as an attorney in government service;

(e) he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(f) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(iii) is to the judge's knowledge likely to be a material witness in the proceeding.

(g) he or his spouse, or a person within the first degree of relationship to either of them, or the spouse of such a person, is acting as a lawyer in the proceeding.

(3) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.

(4) In this rule:

(a) "proceeding” includes pretrial, trial, or other stages of litigation;

(b) the degree of relationship is calculated according to the civil law system;

(c) "fiduciary” includes such relationships as executor, administrator, trustee, and guardian;

(d) "financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:

(i) ownership in a mutual or common investment fund that holds securities is not a "financial interest" in such securities unless the judge participates in the management of the fund:

(ii) an office in an educational, religious, charitable, fraternal, or civic organization is not a "financial interest” in securities held by the organization;

(iii) the proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest;

(iv) ownership of government securities is a "financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities;

(v) an interest as a taxpayer or utility ratepayer, or any similar interest, is not a "financial interest” unless the outcome of the proceeding could substantially affect the liability of the judge or a person related to him within the third degree more than other judges.

(5) The parties to a proceeding may waive any ground for recusal after it is fully disclosed on the record.

(6) If a judge does not discover that he is recused under subparagraphs (2)(e) or (2)(f)(iii) until after he has devoted substantial time to the matter, he is not required to recuse himself if he or the person related to him divests himself of the interest that would otherwise require recusal.

The federal counterpart — but clearly not the equivalent, 28 U.S.C.A. § 455 (West Supp.1993), *182 ■ is entitled "Disqualification of justice, judge, or magistrate.” It provides:

(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a parly to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) Is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) Is acting as a lawyer in the proceeding;

(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.

(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.

(d) For the purposes of this section the following words or phrases shall have the meaning indicated:

(1) "proceeding” includes pretrial, trial, appellate review, or other stages of litigation;

(2) the degree of relationship is calculated according to the civil law system;

(3) "fiduciary" includes such relationships as executor, administrator, trustee, and guardian;

(4) "financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:

(i) Ownership in a mutual or common investment fund that holds securities is not a "financial interest” in such' securities unless the judge participates in the management of the fund;

(ii) An office in an educational, religious, charitable,, fraternal, or civic organization is not a "financial interest” in securities held by the organization;

(iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a savings association, or a similar proprietary interest, is a "financial interest" in the organization only if the outcome of the proceeding could substantially affect the value of the interest;

(iv) Ownership of government securities is a “financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities;

(e) No justice, judge, or magistrate shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.

(f) Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate, or bankruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has been devoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the justice, judge, magistrate, bankruptcy judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification.

. Although the Texas Rules of Civil Procedure now cover recüsal, recusal first came to the courts by legislative mandate. In 1977, Article 200a, section 6 of the Texas Revised Civil Statutes was amended to include a provision for the recusal of district court judges. The substance of Article 200a, section 6 is now found in Tex R.Civ.P. 18a and Tex.Gov’t Code Ann. § 74.059 (Vernon 1988). See Sam Sparks, Judicial Recu-sal: Rule 18a — Substance or Procedure, 12 St. Mary’s L.J. 723, 729 (1981). The federal courts have not received any such equivalent mandate.

. If we were a federal appellate court reviewing a federal district judge’s refusal to disqualify under the federal rule and federal law, the majority’s resolution of this question would be sounder.