Lange v. Lange ( 2004 )

CALABRIA, Judge,

dissenting.

Because I cannot reconcile the majority’s reading of our Supreme Court’s opinion with the existing standard our Supreme Court asked this Court to apply, I respectfully dissent. The Supreme Court, citing State v. Scott and State v. Fie, expressly stated “the Court of Appeals should apply the standard as it has been previously set out by this Court.” Lange v. Lange, 357 N.C. 645, 649, 588 S.E.2d 877, 880 (2003). Nothing in the Supreme Court’s opinion remanding this case to this Court indicates that any portion of Scott or Fie has been overruled or improperly sets forth the standard, and both cases expressly support the proposition that the appearance of impropriety justifies recusal. Moreover, I am concerned with the clarity of the record in the instant case and how the standard applies to that record. Accordingly, I will set out my understanding of the standard for recusal previously set forth by our Supreme Court and analyze whether Judge Christian’s order can be reconciled with that standard.

I. Standard for Disqualification

Our Code of Judicial Conduct states that “a judge should disqualify himself in a proceeding in which his impartiality may reasonably be questioned[.]” Code of Judicial Conduct, Canon 3(C)(1) (2004).¹ Canon 3(C)(1) then non-exhaustively enumerates the following instances warranting recusal:

(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings;

(b) 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;

(c) 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;

(d) 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.

Our Courts have repeatedly held, in accordance with the Code, “that a party has a right to be tried before a judge whose impartiality cannot reasonably be questioned.” State v. Fie, 320 N.C. 626, 627, 359 S.E.2d 774, 775 (1987) (citing Code of Judicial Conduct, Canon 3(C)(1) (1973)). Accord State v. Scott, 343 N.C. 313, 326, 471 S.E.2d 605, 613 (1996); State v. Vick, 341 N.C. 569, 576, 461 S.E.2d 655, 659 (1995) (both cases concluding there was no error in a judge’s failure to recuse himself in a criminal proceeding where the defendant did not present “substantial evidence of partiality or evidence that there was an appearance of partiality”). Indeed, as our Supreme Court has instructed:

It is not enough for a judge to be just in his judgment; he should strive to make the parties and the community feel that he is just; he owes this to himself, to the law and to the position he holds... . The purity and integrity of the judicial process ought to be protected against any taint of suspicion to the end that the public and litigants may have the highest confidence in the integrity and fairness of the courts.

Fie, 320 N.C. at 628, 359 S.E.2d at 775-76 (citations and internal quotation marks omitted).

Thus, our Courts have not traditionally limited orders of recusal to instances where actual partiality is shown but “ ‘go further, and say that it is also important that every man should know that he has had a fair and impartial trial; or, at least, that he should have no just ground for suspicion that he has not had such a trial.’ ” Bank v. Gillespie, 291 N.C. 303, 311, 230 S.E.2d 375, 380 (1976) (quoting Ponder v. Davis, 233 N.C. 699, 706, 65 S.E.2d 356, 361 (1951)). The standard as it has been previously set out by our Supreme Court calls for a determination as to whether there is substantial evidence of either partiality or an appearance of partiality. Scott, 343 N.C. at 326, 471 S.E.2d at 613; Vick, 341 N.C. at 576, 461 S.E.2d at 659. We note that, in answering this question, it is well established that the burden of proof rests squarely upon the party moving for disqualification of the judge “ ‘to demonstrate objectively that grounds for disqualification actually exist.’ ”² Fie, 320 N.C. at 627, 359 S.E.2d at 775 (quoting State v. Fie, 80 N.C. App. 577, 584, 343 S.E.2d 248, 254 (1986) (Martin, J., concurring)). Accord Scott, 343 N.C. at 325, 471 S.E.2d at 612; State v. Honaker, 111 N.C. App. 216, 219, 431 S.E.2d 869, 871 (1993) (“a party moving for recusal must produce substantial evidence that the judge’s impartiality may reasonably be questioned”); State v. Kennedy, 110 N.C. App. 302, 305, 429 S.E.2d 449, 451 (1993) (“[t]he moving party may carry this burden with a showing ‘ “of substantial evidence that there exists such a personal bias, prejudice or interest on the part of the judge that he would be unable to rule impartially,” ’... or a showing that the circumstances are such that a reasonable person would question whether the judge could rule impartially”) (citations omitted).

II. Judge Christian’s Order

In remanding this case to our Court, our Supreme Court twice stated recusal was proper when “grounds for disqualification actually exist.” Lange, 357 N.C. at 649, 588 S.E.2d at 880.³ Moreover, our Supreme Court indicated that any such ground must be supported by findings of fact and such findings of fact must be supported by evidence in the record. Id.

A. Grounds for Disqualification

Regarding Judge Christian’s order, our Supreme Court noted in passing:

Judge Christian made specific findings of fact and conclusions of law that Judge Jones did not violate the Code of Judicial Conduct by his actions in this case and that there was no evidence of any bias by Judge Jones. Nevertheless, Judge Christian then went on to conclude that Judge Jones should be recused because a reasonable person could question his ability to rule impartially. Judge Christian’s ruling was based on inferred perception and not the facts as they were found to exist.

Lange, 357 N.C. at 649, 588 S.E.2d at 880. But see Stephenson v. Bartlett, 358 N.C. 219, 229-30, 595 S.E.2d 112, 119-20 (2004) (upholding the requirement of N.C. Gen. Stat. § 1-267.1 that a former member of the General Assembly may not sit as a member of the three-judge panel in a re-districting case on the grounds that it was “sensible insurance against any appearance of conflict of interest” and noting that such a framework “reduces the appearance of improprieties”). Nonetheless, Judge Christian did find that “a reasonable person would question the impartiality” of Judge Jones and concluded, pursuant to the language of Canon 3(C)(1) that “a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, that Judge Jones should be recused. Thus, the order of recusal rests on application of Canon 3(C)(1) itself despite the fact that Judge Jones’ situation did not fit neatly into any of the illustrative instances enumerated under subsections (a) through (d) of Canon 3(C)(1). Stated alternatively, Judge Christian’s ruling seems to be functionally equivalent to the standard, but not the examples, embodied by Canon 3(C)(1).⁴ The question remains, then, whether the findings of fact support a violation of Canon 3(C)(1) and whether those findings are supported by the record evidence.

B. Findings of Fact and Supporting Record Evidence

Judge Christian’s conclusion that a reasonable person would question Judge Jones’ impartiality was based on the following findings of fact: (1) Judge Jones and Ms. Holliday co-owned an interest in vacation property together, (2) “more recently, [Judge Jones and Ms. Holliday] had recurrent conversations regarding the sale of their respective interests to the other,” (3) during the pendency of the action in which Ms. Holliday represented defendant, these discussions continued and Ms. Holliday “referenced selling her interest in the vacation property” to Judge Jones, and (4) Judge Jones had a fiduciary responsibility to and a continuing financial connection with Ms. Holliday. Defendant does not contest these facts, and I agree with Judge Christian’s determination that, on these facts, a reasonable person would question a judge’s impartiality. Furthermore, these facts are capable of giving rise to a “ ‘taint of suspicion’ ” from which we traditionally shield the judiciary. Fie, 320 N.C. at 628, 359 S.E.2d at 775 (quoting Ponder, 233 N.C. at 706, 65 S.E.2d at 360). In summary, based on the standard previously set out by our Supreme Court, it appears Judge Christian granted plaintiff’s motion to recuse based upon the actual existence of a ground for disqualification, that such ground is supported by findings of fact as they were found to exist, and that such findings are not contested and, therefore, should be taken as true and supported by the evidence. I would hold Judge Christian correctly considered both actual partiality and the appearance thereof in determining the recusal issue.

Faced with the inability to find error in Judge Christian’s order under our existing standard for recusal, I write separately for clarification regarding examining and reconciling the record with the standard our Supreme Court instructed this Court to apply. My understanding of that standard does not comport with the approach adopted by the majority in this case. I conclude there was no error in Judge Christian’s order.

This conclusion does not imply wrongdoing on the part of Judge Jones. Judicial recusal does not always involve a disservice to the litigants in the case or, here, an abuse concerning Judge Jones’ administration of justice. Rather, our zealous guarding of the trust reposed in our judiciary by the public warrants, at times, our erring on the side of caution, and even extreme caution, lest the shadow of suspicion fall over its integrity. Accord Fie, 320 N.C. at 628-29, 359 S.E.2d at 776 (holding it was error for one judge not to recuse another judge despite noting that the holding did not “imply that Judge Burroughs was actually prejudiced against the defendants or that he was in fact unable to preside fairly over the trial. The appearance of a preconception of the validity of the charges against these defendants is sufficient to require a new trial”).

1 . This language was preserved despite the fact that the “appearance of impropriety” language in the title of Canon 2 was deleted from the Code in 2003. Code of Judicial Conduct, Canon 2 (2004).

2 . The requirement upon the party moving for disqualification “ ‘to demonstrate objectively that grounds for disqualification actually exist’ ” has been repeated throughout our case law. However, I do not understand this statement as requiring a showing of actual bias. Indeed, our Supreme Court made clear in Fie that while they agreed with this statement from Judge Martin’s concurring opinion, the Court “also agree[d] with Judge Wells [as expressed in his dissenting opinion] that a party has a right to be tried before a judge whose impartiality cannot reasonably be questioned.” Fie, 320 N.C. at 627, 359 S.E.2d at 775. The Court concluded, “[t]he appearance [of bias] ... is sufficient to require a new trial.” Id., 320 N.C. at 628-29, 359 S.E.2d at 776. Accordingly, while the burden rests upon the moving party to demonstrate the grounds for disqualification, such grounds include either actual partiality or the appearance of partiality.

3 . Our Supreme Court, citing Scott and Fie, further stated that the party moving for disqualification can show these grounds with “substantial evidence that there exists such a personal bias, prejudice or interest on the part of the judge that he would be unable to rule impartially.” Lange, 357 N.C. at 649, 588 S.E.2d at 880 (citation omitted). In both Scott and Fie, our Supreme Court set out the standards contained in Canon 3(C)(1) and N.C. Gen. Stat. § 15A-1223 (2003) (requiring recusal in criminal proceedings where a judge is actually “[prejudiced against the moving party or in favor of the adverse party”). Fie illustrates that the actual bias requirement codified in N.C. Gen. Stat. § 15A-1223 is a higher standard than that found in Canon 3(C)(1). It may very well be that our Supreme Court has indicated this higher standard of actual bias is appropriate in civil cases where, as here (1) the trial is concluded, (2) the trial court has orally given its ruling but has not yet re’duced that ruling to writing, and (3) the party moving for recusal, which is also the non-prevailing party, could not reasonably have known the circumstances warranting recusal. Application of this higher standard might be preferred to prevent collateral attacks by the non-prevailing party on a ruling by impugning the impartiality of the judge rather than challenging the legal merits of the ruling. Nonetheless, Judge Christian’s uncontested finding that neither plaintiff nor her attorney had notice of the facts upon which the recusal motion was based because that information had become stale would seem to warrant the traditional standard as opposed to the higher standard used to prevent a party who was dissatisfied with the result of the trial from obtaining a “second bite at the apple.”

4 . Some confusion is presented by the order, however, due to Judge Christian’s repeated findings and conclusions that “no ... specifically enumerated violation of the Canons of Judicial Conduct” was shown. Separate and apart from the similarity between Judge Christian’s findings regarding whether a reasonable person would question Judge Jones’ impartiality and the standard of Canon 3(C)(1), there is an additional reason to read the scope of such portions of Judge Christian’s order narrowly: if Judge Christian were referencing the entirety of the Canons in the Code of Judicial Conduct, it would be superfluous to additionally and specifically address whether there were violations of Canons 2, 3, or 6 as Judge Christian does in various portions of his order.