Washington Mutual Finance Group, LLC v. Greta Blackmon ( 2001 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2001-CA-01911-SCT
WASHINGTON MUTUAL FINANCE GROUP, LLC
f/k/a CITY FINANCE COMPANY
v.
GRETA BLACKMON, LOUISE BLUE, GLENDA
CHAMBERS, ANNIE CLARK, WILLIE EARL
CONWAY, LILLIE HARRIS, ROBIN HORTON,
LINDSEY HORTON, LORENE JACKSON, LIZZIE
LOFTON, JESSIE McCLUNG, WILLIE McGEE, LOU
WATERS, EARNEST CLAIBORNE, TINA CROSS,
ALFRED GARRETT, PERCY MASON, KENNETH
HILL, ZENESTER MOORE, MATTIE MILES,
PATRISHANE GORDON, JANIE MASON, DORIS
GARRETT, HAZEL CLAIBORNE, DAVID
FERGUSON AND LINDSEY HORTON
ON VERIFIED MOTION FOR RECUSAL
EN BANC.
PITTMAN, CHIEF JUSTICE, FOR THE COURT:
STATEMENT OF THE CASE
¶1. The appellees have filed their Verified Motion for Recusal, urging that a majority of this Court,
specifically, Chief Justice Pittman, Presiding Justices Smith and Waller, and Justices Cobb and Carlson,
recuse themselves. Due to the importance of the issue, not only in this case but in other cases before the
Court and for the future, those justices have submitted the motion and those filed in other cases to the en
banc conference for consideration by the full Court.
¶2. The motion before us grows out of an Emergency Complaint filed with the Mississippi Commission
on Judicial Performance on August 28, 2003, by the five subject justices against then Presiding Justice C.
R. McRae1 wherein it is charged, inter alia, that Justice McRae improperly used his judicial office for the
benefit of Shane Langston and Langston, Sweet & Freese, P.A., a law firm representing the appellees
here. In addition, the motion argues that the law firm of Butler, Snow, O’Mara, Stevens & Cannada,
PLLC, represents the five justices in the judicial disciplinary proceeding and also represents clients which
have a significant interest in the present case.
¶3. Having considered the motion, responses, and the appellees’ rebuttal, the Court finds that the
motion is without merit and should be denied as to each of the five justices for the reasons stated in this
opinion.
¶4. Our Code of Judicial Conduct requires that judges inform the appropriate authorities when they
have information indicating that there is a substantial likelihood that another judge has committed violations
of the Code of Judicial Conduct raising substantial questions as to the latter’s fitness for office. Miss. Code
of Jud. Conduct, Canon 3D(1). On August 28, 2003, the five justices filed with the Mississippi
Commission on Judicial Performance an Emergency Complaint raising a number of issues concerning
Justice McRae’s conduct and the performance of his judicial responsibilities. In so far as they relate to the
present motion, these issues include the charge that Justice McRae used his office to promote his personal
interests and those of his family. The complaint further states:
Justice McRae has a close relationship with the family of Shane and Cynthia Langston,
attorneys actively practicing in Mississippi. This relationship has become even closer since
the marriage of his daughter, an associate in Shane Langston’s firm, to Shane Langston.
This relationship has on a number of occasions required Justice McRae to recuse himself,
1
On January 5, 2004, Presiding Justice McRae's term of office ended when his successor, Justice
Jess H. Dickinson, took the oath of office.
2
however reluctantly, in appeals in which the Langstons have an interest. . . . In an effort
to promote their interest, having recused, Justice McRae, without consulting with other
members of the Court and contrary to prior decisions of the Court, personally (and
incorrectly) advised the attorneys in these cases that they were entitled to have a special
justice appointed by the Governor. . . .
¶5. Comments about Justice McRae ascribed to Chief Justice Pittman in two newspaper articles are
also cited as showing hostility to Langston and his firm. The Kosciusko Star Herald quotes Chief Justice
Pittman as stating that “[I]t shouldn’t go unnoted that McRae’s son-in-law (Shane Langston) is the one
challenging Waller’s service on the court since he also helps lead the Mississippi National Guard, which
is part of the executive branch and must answer to the governor.” In the same article, he is quoted as saying
that “I am saddened that we make headlines that probably concern you, but this is a fight about protection
of the public interest and people who don’t give a damn about the public interest.” In a Clarion- Ledger
article, Chief Justice Pittman is described as suggesting that the Court will run smoother when Justice
McRae is gone and the new justice, Jess H. Dickinson, comes on board.
¶6. The movants also assert that W. Scott Welch, III, and the Butler Snow law firm represent the five
justices in Justice McRae’s disciplinary proceedings, and that the justices sought to have Welch appointed
“special prosecutor” in the those proceedings. The Butler Snow firm has filed an amicus curiae brief in the
present case on behalf of Mississippi Bankers Association, and, it is asserted, represent a non-party client
who will have a vital interest in the outcome of the present case.
¶7. In fact, neither Welch nor the firm represents any of the justices. In support of their statements
regarding Welch and the Butler Snow firm, the movants have offered Welch’s affidavit in which he
acknowledges that he was contacted regarding representation, but likewise declares under oath that he was
never retained, that he declined to undertake representation, and that neither he nor his firm represent the
five justices. The movants also offer a Motion to Direct Employment of Special Counsel by which the
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justices did indeed recommend Welch as special counsel; however, this motion was overruled by the
Commission and the disciplinary proceedings are being prosecuted by Commission counsel.
¶8. The motion also alleges that Justice Carlson or his family have some kind of relationship with or
interest in First Security Bank, a corporation which is not a litigant in the present matter. It argues that
because of this relationship Justice Carlson cannot sit on any cases such as the present one involving credit
insurance or credit related products.
¶9. Finally, the movants raise a legal challenge filed in the Chancery Court of the First Judicial District
of Hinds County to Justice Waller's service on this Court filed by Shane Langston, which was dismissed
without prejudice on August 29, 2003.
DISCUSSION
Standard of Proof
¶10. The grounds here asserted for recusal do not implicate constitutional and statutory disqualifications,
nor are such disqualifications alleged. Miss. Const. art. 4, § 165; Miss. Code Ann. § 9-1-11 (Rev. 2002).
Otherwise, under the Code of Judicial Conduct, judges should recuse “in proceedings in which their
impartiality might be questioned by a reasonable person knowing all the circumstances . . . .” Miss. Code
of Jud. Conduct, Canon 3E(1). Included among those circumstances which might cast doubt on a judge’s
impartiality are those in which the judge has a personal bias or prejudice concerning a party (Canon
3E(1)(a)), the judge or a member of the judge’s family residing in the judge’s household has a financial
interest in the subject matter in controversy or in a party to the proceeding (Canon 3E(1)(c)), or the judge
or close relatives has any other interest that could be substantially affected by the outcome of the
proceeding, (Canon 3E(1)(d)). The specific circumstances listed in Canon 3E(1) are examples and do
4
not constitute an exclusive list of grounds for recusal. Upton v. McKenzie, 761 So. 2d 167, 172 (Miss.
2000); Buchanan v. Buchanan, 587 So. 2d 892, 896 (Miss. 1991).
¶11. The law recognizes that there must be confidence in judges’ impartiality in order for our judicial
systemto function. Those bringing their disputes before the courts must do so in a well grounded belief that
the law will be applied fairly to the facts of their cases. However, there must be an equilibrium between
this need for impartiality and the need to prevent the frivolous and unnecessary disqualification of those
elected to perform judicial duties. The two firms addressed by the pending motion–the Langston firm and
Butler Snow–are among the most active practicing before the Supreme Court, and the recusal of five
justices in cases presented by these firms would essentially require the constitution of special courts to hear
a substantial portion of the Court’s docket. Where required by fairness and compliance with the standards
of the Code of Judicial Conduct, the duty to recuse prevails; but otherwise, the judges have a duty to serve
unless they cannot adjudicate the litigants' claims fairly.
¶12. In striking the required balance, the law presumes that the judge is qualified and unbiased. In order
to overcome the presumption, the movant must offer evidence which will produce a reasonable doubt about
the validity of the presumption. Steiner v. Steiner, 788 So. 2d 771, 775 (Miss. 2001); Tubwell v.
Grant, 760 So. 2d 687, 689 (Miss. 2000); Bredemeier v. Jackson, 689 So. 2d 770, 774 (Miss.
1997). Whether a party seeks recusal based on these specific examples or on the general standard of
Canon 3E(1), that party bears the burden of proving the allegations and of demonstrating that the facts
justify doubt as to the judge’s impartiality in the mind of a reasonable person who knows all the
circumstances. Indeed, the burden of proving allegations that a judge’s hostility toward attorneys is such
as to require recusal in their clients’ cases is a particularly heavy one. Payton v. State, 2003 WL
22510533, *12 (Miss. 2003). The recusal process must not degenerate into a technique for a lawyer to
5
utilize in constructing a forum favorable to the positions which may favor the litigants represented by the
lawyer.
Alleged Hostility of Justices Toward Shane Langston and His Firm
¶13. It must be said at the start that the action of the filing justices as to Justice McRae’s conduct was
not initiated because of personal dislike of Justice McRae. Concern over the conduct of another or
disapproval of the latter’s actions, does not equate with personal hostility toward that person or those
associated with him. The complaint against Justice McRae was initiated due to conduct which, in the minds
of the filing justices, violated their fellow justice’s responsibilities to the Court and to the public and their
concern for the independence and integrity of this Court as the highest tribunal in the state. Whether the
charges justify discipline is not for this Court to decide. The matter has been reported to the Commission
on Judicial Performance which now has the charges under consideration and which will ultimately decide
whether to recommend sanctions. If the Commission does recommend disciplinary action, the matter will
be decided by a special tribunal empaneled by the Secretary of State under Article 6, Section 177A of the
Mississippi Constitution and Rule 11 of the Rules of the Commission. It is appropriate to observe,
however, that in its public ruling on whether to suspend Justice McRae pending the conclusion of the
proceedings, the Commission has found that his conduct did violate several provisions of the Code of
Judicial Conduct. This is mentioned here merely to demonstrate that there was a reasonable basis to file
the complaint of greater import than any mere ill will of the justices toward their colleague.
¶14. Although the argument is made that the Emergency Complaint against Justice McRae contains
language which demonstrates hostility toward Shane Langston and his firm, in fact, there is no language
critical of the Langstons in that complaint. The charges are against Justice McRae with no suggestion or
intimation that the Langstons sought to influence his actions or took advantage of them. Without such
6
language, in order to find prejudice against the litigants now before the Court, it is necessary to infer from
the complaint that the statements regarding Justice McRae’s conduct were animated by malice rather than
in response to the justices’ duty, and then to further infer that this animosity extends to those who are
associated with Justice McRae, and finally to further infer that the animosity extends beyond the Langstons
to their clients. Such a three-tiered progression of inferences is not justified by the facts.
¶15. Even if it is assumed for the sake of argument that the justices bear hard feelings against the
Langstons, the courts have generally held that such feelings entertained as to attorneys will not be imputed
to their clients–particularly clients in cases unrelated to those in which the animosity arose. Jeffery M.
Shaman, Steven Lubet & James J. Alfini, Judicial Conduct and Ethics § 4.08, at 123 (3d ed. 2000). To
warrant disqualification, the judge’s bias toward a litigant’s counsel must be extreme. Richard E. Flamm,
Judicial Disqualification, § 4.4.4, at 124 (1996).
¶16. Recusal may, however, be required where animosity between an attorney and a judge is extreme
and is one of several factors which, taken together, raise concerns about the judge’s ability to preside
impartiality. In Davis v. Neshoba County General Hospital, 611 So. 2d 904 (Miss. 1992), this
Court found that tension between the trial judge and plaintiff’s counsel, taken with other factors, required
recusal. There, the transcript of the recusal hearing included an exchange in which tension was great over
a previous case in which the attorney accused the judge of being racially biased. In addition, the judge had,
as an attorney, represented the hospital trustees for several years and had represented the hospital at the
time when the hospital recruited one of the defendants in the case. The judge had participated in an
interview with that defendant and had signed the minutes of the meeting during which the hospital had said
that it would aggressively help the defendant build a successful medical practice. Under those facts, the
Court found that the judge’s relation to the hospital-party with the obvious tension between the judge and
7
counsel reflected in the hearing would cause a reasonable-minded person to question whether the judge
would have a personal bias or prejudice concerning the attorney’s client.
¶17. In the federal system, 28 U.S.C. § 144 addresses recusals and, like Canon 3E(1)(a) of the Code
of Judicial Conduct, requires recusal where there is a demonstrated prejudice against a party. In Davis
v. Board of School Comm’rs of Mobile County, 517 F.2d 1044 (5th Cir. 1975), addressing
animosity toward counsel as imputed bias against a party, the Fifth Circuit has said:
[Plaintiffs] seek disqualification on an imputation theory the bias against their lawyer is
imputed to them. Read broadly, this peremptory challenge type approach would bid fair
to decimate the bench. Lawyers, once in controversy with a judge, would have a license
under which the judge would serve at their will. . . .One answer is that “party” as used in
§ 144 does not include counsel as such . . . . [Citations and footnote omitted.]
Davis, 517 F.2d at 1150.
¶18. Later, citing Davis v. Board of School Comm’rs of Mobile County, that court said:
Bias for or against an attorney, who is not a party, is not enough to require disqualification
unless it can also be shown that such a controversy would demonstrate a bias for or
against the party itself. . . . In order for bias against an attorney to require disqualification
of the trial judge, it must be of a continuing and personal nature and not simply bias against
the attorney or in favor of another attorney because of his conduct. [Citation omitted.]
Henderson v. Dep't of Pub. Safety & Corrections, 901 F.2d 1288, 1296 (5th Cir. 1990).
¶19. In contrast to Mississippi’s version, Nevada’s version of Canon 3E(1)(a) expressly includes animus
toward an attorney as a ground for disqualification. Nevertheless, the supreme court in that state has held
that a judge’s bias toward an attorney is largely irrelevant. Addressing the question, that court said:
In a small state such as Nevada, with a concomitantly limited bar membership, it is
inevitable that frequent interactions will occur between the members of the bar and the
judiciary. Thus, allegations of bias based upon a judge’s association with counsel for a
litigant pose a particularly onerous potential for impeding the dispensation of justice. [Citing
In re Petition to Recall Dunleavy, 769 P.2d 1271, 1275 (Nev. 1989).] Furthermore
. . . if a litigant could successfully challenge a judge based upon allegations of bias against
counsel for the litigant, “it ‘would bid fair to decimate the bench’ and lawyers, once in a
8
controversy with a judge, ‘would have a license under which the judge would serve at their
will.’” (quoting Davis v. Board of School Com’rs of Mobile County, 517 F.2d
1044, 1050 (5th Cir. 1975). This policy still applies, and we continue to believe that to
permit a justice or judge to be disqualified on the basis of bias for or against a litigant’s
counsel in cases in which there is anything but an extreme showing of bias would permit
manipulation of the court and significantly impede the judicial process and the
administration of justice.
City of Las Vegas Downtown Redev. Agency v. Hecht, 940 P.2d 127, 129 (Nev. 1997).
¶20. In Pennsylvania, the supreme court faced a similar situation. There the judge had made statements
in a prior case wherein he challenged the sincerity, truthfulness and integrity of the attorney. The supreme
court agreed with the finding of the superior court that a judge’s personal bias and hostility toward a party’s
counsel, standing alone, is irrelevant and does not require recusal. Reilly v. Southeastern Pa. Transp.
Auth., 489 A.2d 1291 (Pa. 1985).
¶21. In Henderson v. G&G Corp., 582 So. 2d 529 (Ala. 1991), a judge had testified against an
attorney who later represented a party in the case before the judge. The judge was alleged to have testified
that he would not believe the attorney under oath. The Alabama Supreme Court held that these
circumstances were not sufficient to show prejudice requiring recusal.
¶22. In People v. Fitzgibbons, 909 P.2d 1098 (Colo. 1996), an attorney who was charged in a
disciplinary proceeding sought recusal of the vice-chair of the hearing committee, asserting that counsel for
the charged attorney had previously been admonished by a letter signed by the vice-chair. The court held
that recusal was not required and that a demonstration of prejudice against counsel does not itself require
recusal, but that the judge should recuse only if the judge has manifested an attitude of such hostility or ill
will toward the attorney so that the judge’s impartiality can be reasonably questioned.
¶23. Given the frequent interaction of attorneys and judges involving matters of serious legal, social and
economic consequences, it is to be expected that there will from time to time be conflict between them in
9
the course of their professional responsibilities. Judges are often called on to discipline attorneys and to
criticize their conduct. Attorneys frequently challenge rulings of the judges. However, tradition and
authority do not dictate that each time an attorney perceives the possibility that a judge may not think kindly
of him he is entitled to have the judge removed from a case. On the contrary, unless the antagonism is
extreme and clearly demonstrated, or unless the animosity so demonstrated is coupled with other prejudicial
circumstances, recusal is not mandated. Considering these authorities, it is clear that the language of the
Emergency Complaint filed against Justice McRae regarding the Langston family and firm does not require
recusal of the justices. Nothing there indicates any hostility toward the Langstons, certainly nothing that
would arise to the level of bias against parties represented by them in other proceedings.
The Relationship Between the Justices and W. Scott Welch and Butler, Snow,
O’Mara, Stevens and Cannada, PLLC
¶24. Scott Welch and his law firm, Butler, Snow. O’Mara, Stevens and Cannada, PLLC, are said to
represent American General Finance, Inc., not a party here, but a corporation apparently having an interest
in the outcome of the appeal. In addition, Welch has filed an amicus curiae brief in the case on behalf of
Mississippi Bankers Association.2
¶25. The movants charge that Welch and his firm have been retained to advise the justices in the
proceedings against Justice McRae “and presumably, [regarding] the allegations relating to Appellees'
attorney, Shane Langston.” As discussed above, the complaint contains no allegations against Langston.
Further, the firm has not been retained to represent the justices and does not represent them.
2
The motion does not charge that Butler Snow represents a party in this case. Rather, the firm filed
an amicus curiae brief on behalf of a non-party. It has been held in at least one other jurisdiction that
“representing an amicus curiae is not the equivalent of representing a ‘litigant’ in an appeal,” and that the
relationship between the attorney filing the amicus brief and the judge does not disqualify the judge. City
of Las Vegas Downtown Redev. Agency, 940 P.2d at 130.
10
¶26. As evidence in support of this charge, the movants offer an affidavit executed by Welch, and
excerpts from Justice Carlson’s deposition given in the judicial performance proceedings. Neither the
affidavit nor the deposition excerpts support the movants' claim. Welch states that the justices, in their
official capacities, consulted with him with a view towards obtaining legal services, but that no attorney-
client relationship was ever established since he declined to undertake representation. He denies that he
or his firm has been retained by the justices or have any role in representing the Commission. In his
deposition, Justice Carlson acknowledged that the Objection to Production of Subpoenaed Documents
was prepared either by James Tucker or Welch. He also stated that Tucker and Welch were consulted
but declined representation of the justices.
¶27. Beginning on September 24, 2003, Justice McRae served subpoenae duces tecum and notices of
depositions on the five justices and members of the Supreme Court staff. Because of this, the justices
determined that they should obtain counsel for themselves and for the staff witnesses. The Butler Snow
firmwas contacted and over a period of approximately a week, the justices engaged in conversations with
Welch as to the availability of his firm. Ultimately, the firm declined, but Welch indicated that he and James
Tucker of the firm would be available to serve as special counsel for the Commission, as provided by Rule
8E of the Rules of the Mississippi Commission on Judicial Performance, if needed or desired. During this
short period, the firm assisted the justices in preparing preliminary pro se motions, one for a protective
order and one for appointment of special counsel for the Commission. Although the firm was made aware
of the justices’ concerns, no member of the firm appeared or argued the motions that were filed. Soon
thereafter, other counsel was obtained and the Butler Snow firm had no further connection with the
disciplinaryproceedings. The motion suggesting Welch’s and Tucker’s appointment as special counsel was
denied.
11
¶28. Even if it were assumed for the sake of argument that Butler Snow did represent or does represent
the justices with regard to the judicial discipline matter, neither the constitution nor statutes impose
disqualification of a judge in a case in which an attorney who has represented the judge is representing a
party. Although Canon 3E(1)(d) of the Code of Judicial Conduct requires recusal where the judge’s
spouse or a person related to the judge within the third degree is acting as an attorney in the case, the
Canon is silent as to an attorney who has represented the judge. Thus, the question is whether, otherwise,
the facts surrounding the justices’ contacts with Butler Snow would cause a reasonable person knowing
all the circumstances to question the justices’ impartiality.
¶29. Under some circumstances, this Court has held that a judge should recuse in a case where an
attorney who represents a party also formerly represented the judge in personal litigation. Aetna Cas.
& Sur. Co. v. Berry, 669 So. 2d 56 (Miss. 1996). There the judge had been represented in his divorce
case by counsel for the plaintiff in the pending case. There was testimony that the attorney had been deeply
involved in the judge’s reelection campaign. In addition, there was testimony that the judge contacted one
of the attorneys for defendants during the litigation, saying, “John, you do not care how this case turns out
do you?” Berry is not analogous to the present situation in that the attorney there had extensive
involvement with the judge over an appreciable period, being retained to represent him in personal litigation,
and that the relationship was compounded by other factors.
¶30. The movants cite Dodson v. Singing River Hospital System, 839 So. 2d 530 (Miss. 2003),
as recognizing that an attorney’s representation of a judge is a significant factor compelling recusal. In
Dodson, it was shown that the firm in question had represented the judge in his mother’s estate and other
litigation which extended over a period of several years, and that a member of the firm had been the judge’s
campaign treasurer. Further, the judge had, during the pendency of the Dodson case, recused in another
12
case due to his relationship with the firm, and he had gone to the offices of the firm to discuss, ex parte,
the possibility of recusal.
¶31. In deciding the question, the Court looked not at a single factor, but at the totality of the
circumstances.
Justice Banks’s concurring opinion in Collins v. Joshi, 611 So. 2d 898 (Miss. 1992),
supports this position. In Collins, the trial judge had represented the trustees of Neshoba
County General Hospital, one of the defendants in the subject suit, for four years . . . .
Neshoba General hired Dr. Joshi, another defendant, during the judge’s representation of
the hospital . . . . The judge had also sued Dr. Soriano, the plaintiff’s expert witness, on
behalf of the hospital . . . . The majority concluded that the judge should have recused
himself. Justice Banks wrote separately and stated, “In my view, while none of the factors
standing alone would necessarily dictate recusal in the instant case, in combination they
create a reasonable doubt as to impartiality . . . .” He also found a “totality of
circumstances which compel the conclusion that ‘a reasonable person might harbor
doubts’ about the judge’s impartiality.” (emphasis added). The same “totality of
circumstances” inquiry is appropriate in this case, and a reasonable person, not a lawyer
or judge, might very well have harbored the same doubts about Judge Harkey’s
impartiality in this case. [Citations omitted; emphasis in original.]
Dodson, 839 So.2d at 534.
¶32. A distinction is made between an attorney’s representation of a judge in personal matters on the
one hand and in his official capacity on the other. “Disqualification may not be required if the attorney
before the judge has represented him on the basis of the judge’s official acts.” Shaman, Lubet & Alfini,
supra, § 4.18, at 146. The Emergency Complaint against Justice McRae was filed by the justices in their
institutional capacities pursuant to the requirement of the Code of Judicial Conduct. All relevant contacts
between Welch and the justices have been in connection with the judicial performance filing under the
mandate of Canon 3D(1).
¶33. In Reilly, one attorney in that case had represented all the Commonwealth’s justices and judges
pro bono in a class action seeking increased judicial compensation. SPTA argued that, because of this
13
relationship, the trial judge should recuse. The Pennsylvania court rejected this argument, saying that such
a ruling would require the attorney to forego trial practice in the state, since only those judges coming on
the bench after the conclusion of the compensation litigation would be able to hear his cases. “No lawyer
should be compelled to suffer such a disaster because of his pro bono representation of all the jurists of
Pennsylvania.” Reilly, 489 A. 2d at 1294.
¶34. The Minnesota Supreme Court has recently recognized that under some circumstances recusal will
be required where the judge has been represented by an attorney presenting a case before him. Powell
v. Anderson, 660 N.W.2d 107 (Minn. 2003). There, the Court vacated a decision authored by a judge
of the intermediate appellate court, later removed from the bench, where the judge pleaded guilty to theft
of over $300,000 from a trust fund for which he was acting as trustee. A member of the firm which
represented a party in the Powell case also represented the trust during the time that the case was on
appeal. In discussing the circumstances which would require recusal due to representation of the judge,
the Powell court observed that four factors should be considered.
¶35. First, the reviewing court should consider the extent of the attorney-client relationship. “If the
relationship consisted of a single, short episode, or even a series of sporadic contacts, disqualification is
less likely than if it consisted of a long-term, continuous course of representation.” Id. at 118.
¶36. Second, the nature of the representation should be considered. “A direct relationship, where the
judge is represented personally, is more indicative of a reasonable question regarding the judge’s
impartiality than a relationship that only involves the judge in some institutional or technical
role.” Id. (emphasis supplied).
¶37. Third, the court should consider the frequency, volume and quality of contacts between the judge
and the attorney or firm. Id.
14
¶38. Fourth, the court should look to any special circumstances that may enhance or diminish the
importance of disqualification, particularly in the eyes of the public. Id.
¶39. Applying the Powell factors, the limited involvement of the Butler Snow firm with the justices in
the judicial performance proceedings is not disqualifying. The firm was in conversations with the justices
for only a few days regarding a single matter in which the justices acted in their official capacities pursuant
to the mandate of the Code of Judicial Conduct. The circumstances were such that it was necessary for
the justices to seek representation quickly for forthcoming depositions. The matter on which they were
consulted, serving as counsel for witnesses in the judicial disciplinary proceeding, was unrelated to the
present case. The firm looked into the matter, assisted with preparation of preliminary motions, and then
advised the justices that they were unable to accept retention. Under the Powell factors and the totality
of the circumstances analysis of Dodson, recusal is not required.
Public Comments by Chief Justice Pittman
¶40. The movants point to public comments made by Chief Justice Pittman which appeared in state
newspapers, and argue that these statements require recusal. There is no allegation that any other justices
joined in or endorsed these comments. Therefore, they impact only on whether Chief Justice Pittman
should himself recuse in this case.
¶41. The reported remarks are relevant only if they show animosity toward Langston. Under the
authorities cited above, animosity toward attorneys representing clients will in only the most extreme
situations be found to be of a quality and degree which will suggest that a judge is biased against the parties
represented by those attorneys. Certainly, the references to Langston in the Clarion-Ledger article and
to Justice McRae’s judicial disciplinary proceedings in the Star Herald do not warrant the conclusion that
Chief Justice Pittman entertains such a level of hostility toward the Langston family and firm.
15
¶42. The movants argue that the Chief Justice’s public comments praising Justice Dickinson somehow
shows a bias which should disqualify the former from hearing this case. They have offered no authority for
the proposition that recusal is required by a general show of respect for one attorney in a case or of an
incoming judge even in comparison with another judge associated with a party, and we have found none.
¶43. It is also argued that the Chief Justice should recuse because Justice-elect Dickinson is attorney
of record in this case, and the Chief Justice has appointed him as a special circuit judge for Forrest County.
However, the record reflects that prior to the filing of the recusal motion, Dickinson took action to withdraw
from the case. In Placid Oil Co., it was argued that a judge’s business relation with counsel for one of
the parties should be disqualifying. However, the court held that since the counsel in question had
withdrawn from the case, recusal was not necessary. In re Placid Oil Co., 802 F.2d 783 (5th Cir.
1986). In any event, a complimentary statement as to an attorney should not be treated as an indication
of bias in his favor.
Justice Waller as a Party to Litigation Prosecuted by the Langston Firm
¶44. Justice Waller was the defendant in a suit filed by Shane Langston on behalf of a client who had
a case pending before the Supreme Court.3 That suit, challenging Justice Waller’s qualification to serve
on the Court, has since been voluntarily dismissed without prejudice. During the time when that suit was
pending, Justice Waller routinely, on his own motion, recused himself from cases before this Court in which
Langston was counsel. Now, the movants here argue that because Langston sued Justice Waller, the latter
should recuse in this case.
3
Wanda Doe v. William L. Waller, Jr., No. G 2002-208 S/2 (Chan. Ct. First Jud. Dist., Hinds
County, Miss.).
16
¶45. The suit against Justice Waller was filed many months ago and was pending long after the Langston
firm appeared in this appeal. Although we address the merits of this claim, we also observe that M.R.A.P.
48C requires that motions to recuse appellate court judges be filed within thirty days following notification
by the clerk that a case has been assigned to either appellate court, or within thirty days after the facts upon
which the motion is based became known or could have been reasonably discovered by the party. Now,
movants infer a bias by Justice Waller against the Langston firm and their present clients because that firm
sued the justice. Under the authorities cited earlier in this opinion, personal animus held by a judge against
an attorney does not, by itself, require recusal because it will not generally be found to be a bias against the
litigant.
¶46. Courts generally have been wary of requiring recusal where the alleged animosity or discord is the
result of affirmative, hostile actions by the attorney. To do so without caution would create situations in
which the judges would serve at the will of the lawyers–a circumstance generally thought to be intolerable.
See Davis v. Board of School Comm’rs of Mobile County, 517 F.2d at 1150 (“Lawyers, once in
controversy with a judge, would have a license under which the judge would serve at their will,” quoted
with approval in City of Las Vegas Downtown Redevelopment Agency v. Hecht, 940 P.2d at 129;
Dunlop Tire Corp. v. Allen, 725 So.960, 977(Ala. 1998) (to allow an attorney to compel recusal by
filing a lawsuit against the judge “would allow a litigant to control judicial proceedings whenever a litigant
becomes dissatisfied with the course of the proceedings.”)). The Eighth Circuit has said:
We subscribe to the view that motions to recuse should not “be viewed as an additional
arrow in the quiver of advocates in the face of [anticipated] adverse rulings.” TV
Communications Network, Inc. v. ESPN, Inc. 767 F. Supp. 1077, 1081 (D. Colo.
1991). We hold that KPERS’ petition for a writ of mandamus is untimely as to the
Boatmen’s and Blackwell matter, that it is interposed for suspect tactical and strategic
reasons, and that it can and should be denied for these reasons alone.
17
In re Kan. Pub. Employees Ret. Sys., 85 F.3d 1353, 1360 (8th Cir. 1996).
¶47. Even where it is the litigant himself who sues the judge of his case, our Court is reluctant to require
recusal. See Evans v. State, 725 So. 2d 613 (Miss. 1997), but also see, in an extreme circumstance,
contra, Johnson v. Miss., 403 U.S. 212, 91 S. Ct. 1778, 29 L. Ed. 2d 423 (1971).
¶48. Given the fact that the chancery court litigation between Justice Waller and Langston’s client was
initiated by Langston, was filed on behalf of a client not involved in the present appeal, and has now been
dismissed on Langston’s motion, that action does not require Justice Waller to recuse.
Justice Carlson’s Interest in First Security Bank.
¶49. The motion states that “it is believed that Justice Carlson and/or his family members has a
relationship with and/or interest in the First Security Bank of Batesville and derives private income from that
entity.” This case involves issues regarding loan practices and credit insurance, and the motion argues that
it is believed that First Security sells credit insurance and other credit-related products that are central to
the case.
¶50. In support of the allegation of financial interest, the movants offer Justice Carlson’s Statement of
Economic Interest filed with the Mississippi Ethics Commission on April 2, 2003. The statement indicates
that Justice Carlson was a director of First Security Bank until June, 2002, when he resigned. It also shows
that he or his spouse receives income from certificates of deposit, investments, and interest from the bank.
The motion does not otherwise indicate the nature or the extent of his income from this source.
¶51. Under Steiner, Tubwell and Bredemeier, supra, as well as other authorities, in order to
overcome the presumption against bias, the movant must offer evidence which will produce a reasonable
doubt about the validity of the presumption. The motion’s allegations in this regard are supported only by
Justice Carlson’s statement showing that he or his spouse derive some income through the bank.
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¶52. Canon 3E(1)(c) includes as possible grounds for recusal the fact that “the judge knows that the
judge, individually or as a fiduciary, or the judge's spouse or member of the judge’s family residing in the
judge’s 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.”
¶53. The respondents points out that the motion for recusal is, as to this issue, untimely under M.R.A.P.
48C. The notice of appeal was filed on November 29, 2001, and, the respondents argue that with the
Ethics Commission statement dated stamped April 2, 2002, any recusal based on that statement should
have been filed by May 8, 2003, or soon thereafter. Furthermore, Justice Carlson’s banking connection
was publicly discussed by Justice McRae in his dissent to Hewes v. Langston, 853 So. 2d 1237, 1258
(Miss. 2003) (McRae, P.J., dissenting), which was published on September 11, 2003.
¶54. Neither Justice Carlson nor his spouse is alleged to have an interest in Washington Mutual or in any
other corporate party to this litigation, nor are they individual parties. Thus, they do not, in the words of
Canon 3E(1)(c), have a “financial interest in the subject matter in controversy.” This leaves for
consideration whether they have “any other interest that could be substantially affected by the outcome of
the proceeding,” under the second clause of Canon 3E(1)(c), or have “an interest that could be substantially
affected by the outcome of the proceeding,” under Canon 3E(1)(d). A distinction is to be made between
the first of Canon 3E(1)(c) and these additional provisions. The first clause of Canon 3E(1)(c) does not
explicitly require a substantial interest in the subject matter to justify recusal; however, the second
clause and the language of Canon 3E(1)(d) do require that any other interest be substantially affected
by the outcome of the proceeding.
¶55. Under the latter clause, Justice Carlson’s obligation to recuse would depend on factual issues such
as the nature of any credit products sold by the bank, the magnitude of the bank’s credit product sales in
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relation to the overall income of the bank, and the amount of income derived by Justice Carlson from his
investments with the bank. Income from certificates of deposit and interest yielding competitive rates which
would not be dependent on the bank’s earnings would not be relevant.
¶56. 28 U.S.C. § 455(b) is the federal equivalent of Canon 3E(1)(c), requiring recusal where the judge
or his spouse has “any other interest that could be substantially affected by the outcome of the proceeding.”
Applying that statute, the Fifth Circuit has held that recusal was not required in an antitrust action brought
against twenty-three Texas banks where the sitting judge owned a large investment in a nonparty Texas
bank that might be adversely affected by the ruling. In re Placid Oil Co., 802 F.2d at 787-88. There,
it was argued, as here, that any adverse ruling to the bank-defendants would have a dramatic impact on
the entire banking industry and thus on the judge’s investments as well. The court said:
We find no basis here for requiring recusal. We are unwilling to adopt a rule requiring
recusal in every case in which a judge owns stock of a company in the same industry as
one of the parties to the case, and Petitioners, by showing only an indirect and speculative
interest, have failed to sufficiently distinguish this case from that situation. A remote,
contingent, and speculative interest is not a financial interest within the meaning of the
recusal statute. cf. City of Houston, 745 F. 2d at 931, nor does it create a situation in
which a judge’s impartiality might reasonable be questioned.
Placid, 802 F.2d at 786-87.
¶57. Considering § 455(b), the Seventh Circuit has held that the mere fact a district judge’s spouse holds
interests in trusts that include municipal bonds does not require his recusal from a case in which a party
sought an injunction against the redemption of bonds by New York City Development Corporation.
Although the trusts in which the judge’s spouse held interests did not hold any of the bonds of the party-
development corporation, it was argued, as is argued here, that the court’s decision could affect the value
of bond funds generally, including those of the judge’s spouse. New York City Dev. Corp. v. Hart, 796
F.2d 976 (7th Cir. 1986). The court in its analysis said:
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HDC relied on § 455(b)(4), arguing that the disposition of the case may affect the value
of bond funds, including those in which the district judge has an interest. Judge Hart found
this argument insufficient, as do we. The value of many assets, even the performance of
the economy as a whole (and hence all assets), may depend on rules of law. It could be
said that no judge who owns a house should render a decision that potentially affects the
value of real estate in general, that no judge who owns stock should decide a case under
the securities or antitrust laws, and so on. Effects of this sort are both ubiquitous and too
indirect to require disqualification. Cf.Union Carbide Corp. v. U.S. Cutting Service,
Inc., 782 F.2d 710, 714-15 (7th Cir. 1986). The effects are small, and almost every
judge will have some remote interest of this sort. Moreover, the effects may have offsets
that are difficult to predict. A decision under the securities laws that diminishes somewhat
the value of bonds may increase somewhat the value of stocks; no judge with a diversified
portfolio will be able to predict the effect on his wealth, and therefore there is little risk of
either actual bias or the appearance of impropriety.
796 F.2d at 979-80.
¶58. The Eighth Circuit has held that a judge’s interest in a parent corporation would not disqualify him
fromsitting on a case in which the corporation’s subsidiary was a litigant. Under a complicated set of facts,
a party in the subsidiary’s suit filed a separate action against the parent in an apparent effort to force the
judge’s recusal. Citing Placid, the court said that it was reluctant to create a rule which would require
judges to recuse from all cases that might remotely affect nonparty companies in which they own stock.
In re Kan. Pub. Employees Ret. Sys., 85 F.3d at 1362.
¶59. The Eleventh Circuit is also in accord with the Placid holding. In Gas Utilities Co. of Ala.,
Inc., v. Southern Natural Gas Co., 996 F.2d 282 (11th Cir. 1003), relying on Placid, the court held
that a judge whose wife and father-in-law held interests in land leased to gas producers was not required
to recuse from an anti trust action between gas suppliers in the area who did not hold leases from the
judge’s relatives.
¶60. The broadly accepted rule is that in order for Canon 3E(1)(c) or (d), to require recusal, the judge
must either own an interest in a party litigant or, if he does not, there must be a showing–not mere
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speculation-- that he will be substantially affected by the decision of the case. Such a showing has not been
made here. There has been no such showing as to Justice Carlson.
Representation of Justice McRae by Rebecca Langston
¶61. Reference is made in the motion to the fact that Rebecca Langston, Shane Langston’s wife and an
attorney with his firm, represents Justice McRae in the pending judicial performance proceeding, and the
movants argue that her representation of Justice McRae requires the justices who filed the charges against
him to recuse in this case. The argument here is similar to that made regarding the references to the
Langston firm in the Emergency Complaint. The fallacy is the same. For recusal to be required, it must
be inferred that any animosity between Justice McRae and the filing justices reaches to clients of the firm
in which his daughter practices. Such an inference is not warranted. The justices are not parties to the
disciplinary proceedings; they filed the Emergency Complaint under their responsibility as enunciated in the
Code of Judicial Conduct, and the matter has been prosecuted by counsel for the Commission on Judicial
Performance. As discussed above, even if hostility toward Justice McRae were assumed, it will not justify
a conclusion that the hostility extended to his counsel and their clients.
¶62. It is neither unexpected nor improper that a daughter will offer her assistance to her father when
serious charges are made against him. However, the Langston firm was representing their clients before this
Court at the time that Rebecca Langston elected to represent Justice McRae. That decision, however
appropriate on her part, cannot be used by the firm as a device by which they may force the creation of
a special court to hear their other clients’ cases.
CONCLUSION
¶63. We write today to clarify for the practicing bar issues concerning the relationship between attorneys
and judges and the impact of those relationships on the qualification of judges to preside in particular cases.
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Perceived bias by judges cannot generally be inferred from attorneys’ association with causes,
controversies, issues or persons which the judges may find objectionable. The presumption against bias
remains strong, and can be overcome only by evidence and not by mere conjecture or speculation. Our
judges are perfectly capable of distinguishing between attorneys, their clients, and the legal issues which the
attorneys present, even where animosity against the attorneys may exist–a condition which does not exist
as to the Langston firm. Such animosity will require recusal only where it is of an extreme character or
compounded with other factors which will justify doubt as to the judge’s impartiality in the minds of
reasonable and informed people.
¶64. Likewise, favoritism toward attorneys is not to be extrapolated from the mere fact that those
attorneys have assisted judges in the performance of official obligations. Where attorneys represent judges,
we will look to the totally of circumstances of the representation, as we said in Dodson, and Collins,
applying the factors outlined by the Minnesota court in Powell v. Anderson.
¶65. Too often of late, the public, the media, and, most unfortunately, the bar, have tended to treat
litigation as wars between attorneys in which the personalities of the attorneys and sometimes the judges
are the focus. Too often members of the bar use recusal as a trial tactic. This is a sad and inaccurate
misapprehension of the legal system as it should, and by and large, as it does exist. The nature of the
profession is such that attorneys and judges often draw their friends and daily associations from their
vigorous adversaries. They are schooled and nourished in an adversary system in which they learn quickly
that lawyers are merely representatives of clients and positions. Those who do not generally live out their
careers in misery. The judges of our state are thoroughly capable of distinguishing the attorneys from their
clients and to recognize their duty to the public and the law. Our laws and rules governing recusal are
written to allow remedy in the few cases where judges’ conduct indicates that they may truly appear to fall
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short of the responsibility to make those distinctions. The recusal mechanism must be guarded carefully
to check its use as a weapon to be wielded in a campaign to maneuver onto more favorable fields of battle.
¶66. The motion for recusal of these justices fails to demonstrate facts that would cause a reasonable
person knowing all the circumstances to doubt the justices' impartiality in the litigation between the parties
now before the Court. For that reason, the motion is denied.
¶67. APPELLEES’ VERIFIED MOTION FOR RECUSAL, DENIED.
SMITH AND WALLER, P.JJ., COBB AND CARLSON, JJ., CONCUR. DIAZ,
EASLEY, GRAVES AND DICKINSON, JJ., NOT PARTICIPATING.
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