In Re March 9, 2012 Order ( 2020 )

12/22/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
September 15, 2020 Session
IN RE MARCH 9, 2012 ORDER
Appeal from the Circuit Court for Shelby County
No. CT-004568-15 Gina C. Higgins, Judge
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No. W2019-01923-COA-R3-CV
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In a prior appeal, this Court affirmed dismissal of this case and remanded for the trial court
to determine the appropriate amount of attorney’s fees owed to the appellee due to the
appellant’s frivolous appeal. On remand, the trial court ordered the appellant to pay the
sum of $11,901.35. The appellant then filed a motion to alter or amend, arguing, for the
first time, that the trial court’s order was “void ab initio” because it was “adjudicated by
an adjudicator with compromised neutrality in violation of the Fourteenth Amendment[.]”
As support for this claim, the appellant pointed to comments made by the trial judge during
hearings in a separate but related case in 2010 and 2012. The appellant argued that the
Fourteenth Amendment required the trial judge to disqualify herself sua sponte and that
her failure to do so rendered all subsequent orders entered by the trial judge void. The trial
court treated this as a request for recusal “embedded” in the motion to alter or amend and
denied the motion in all respects. The appellant has appealed. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
Remanded
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and KENNY W. ARMSTRONG, J., joined.
Larry E. Parrish, Memphis, Tennessee, for the appellant, William Goetz.
J. Lewis Wardlaw, Memphis, Tennessee, for the appellees, Dana Autin and Donel Autin.
OPINION
I. FACTS & PROCEDURAL HISTORY
The parties to this litigation are former neighbors. They have been embroiled in
litigation for a decade, and they have been before this Court many times. See, e.g., In re
Mar. 9, 2012 Order, No. W2016-02015-COA-R3-CV, 2017 WL 2304842 (Tenn. Ct. App.
May 26, 2017); Autin v. Goetz, 524 S.W.3d 617 (Tenn. Ct. App. 2017); Goetz v. Autin, No.
W2015-00063-COA-R3-CV, 2016 WL 537818 (Tenn. Ct. App. Feb. 10, 2016) perm. app.
denied (Tenn. June 24, 2016). We will not belabor this opinion with another detailed
recitation of the facts because the issues presented on appeal are very limited.
In our most recent opinion, filed on May 26, 2017, this Court affirmed the trial
court’s dismissal of this case with prejudice. In re Mar. 9, 2012 Order, 2017 WL 2304842,
at *5. We also concluded that the appellant’s appeal was frivolous pursuant to Tennessee
Code Annotated section 27-1-122 and awarded the appellees attorney’s fees, directing the
trial court to determine the amount of the award on remand. Id.On June 17, 2019, the trial court entered an order awarding the appellees
$11,901.35. On July 16, 2019, the appellant filed a 59-page motion to alter or amend,
arguing, for the first time, and among other things, that the trial court’s order awarding
attorney’s fees was void ab initio because it was “adjudicated by an adjudicator with
compromised neutrality in violation of the Fourteenth Amendment[.]” The appellant
insisted that “if a writing filed by a trial court . . . includes a deviation from Fourteenth
Amendment due process, the writing is void ab initio[.]” He argued that the trial judge had
violated his due process rights “by attempting to adjudicate with the appearance of
compromised neutrality.” Thus, the appellant argued that the trial judge “was then and is
now disqualified from adjudicating the Subject Order.”
The legal basis for the appellant’s argument was Williams v. Pennsylvania, 136 S.
Ct. 1899, 1905 (2016), in which the United States Supreme Court held that “under the Due
Process Clause there is an impermissible risk of actual bias when a judge earlier had
significant, personal involvement as a prosecutor in a critical decision regarding the
defendant’s case.” The Court explained that there was a risk that a judge in that position
“‘would be so psychologically wedded’ to his or her previous position as a prosecutor that
the judge ‘would consciously or unconsciously avoid the appearance of having erred or
changed position.’” Id. at 1906 (quoting Withrow v. Larkin, 95 S.Ct. 1456 (1975)). In the
case before us, the appellant argued that Williams had “created new constitutional law” and
that, as a result, “[v]ery little, qualitatively, is required to prove an appearance of a
constitutionally impermissible compromise of neutrality[.]” He also argued that “the right
to recusal is not dependent on a recusal motion from the litigant; rather, the recusal is the
sua sponte obligation of the adjudicator.”
As factual support for his claim of “the appearance of compromised neutrality,” the
appellant quoted statements purportedly made by the trial judge during hearings in 2010
and 2012 in the context of the Autin-Goetz litigation. For instance, the trial judge allegedly
said that she was sealing the record because “there are still some very innocent children
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out here that had nothing to do with what you grown folks got involved in, one way or the
other.” At another hearing, the trial judge allegedly stated, “There are children who are
sitting at the heels of these folks in this neighborhood who potentially can have it spill over
on them, and certainly their parents are involved in the details that may very well be made
very public here. They can be embarrassed and harmed, and we know how cruel other
children can be with children. So to the extent that I can ward off any hurt and harm,
humiliations of the children I would like to[.]” Additionally, the trial judge expressed some
concerns “safety-wise” for the children and whether they would somehow be “put in
harm’s way as a consequence of the conduct of these grown-ups.” She cautioned the parties
not to “speed down the street and endanger the lives of children and other people” or make
sexually explicit comments around the children. According to the appellant, these remarks
indicated that the trial judge “prefers the best interests of children, if necessary, at the
expense of adults.” Although there is nothing in the record to confirm this statement, the
appellant claimed that the trial judge had “experience as a guardian ad litem for many
children” when she was in private practice. The appellant acknowledged that the children
referenced here, by the trial judge, were not parties to the litigation. Still, he insisted that
the trial judge was so “psychologically wedded” to “the best interest of children” that the
Fourteenth Amendment required her “to refrain from adjudicating the dispute in this case.”
The appellees filed a response to the motion to alter or amend pointing out that the
appellant had not filed any recusal motion, but yet, he argued that the trial judge was
disqualified and that her orders were void. The appellees also argued that the motion to
alter or amend simply sought to relitigate matters that had already been adjudicated and
raise previously untried legal theories, and therefore, it was not a proper motion to alter or
amend and did not toll the thirty-day time period for filing a notice of appeal.
On September 20, 2019, the trial court entered an order denying what the court
characterized as the “embedded” recusal motion within the motion to alter or amend. At
the outset, the trial judge noted that recusal was not specifically “requested or motioned”
within the motion to alter or amend, that no Rule 10B motion for recusal was filed, and
that all issues in the case had already been adjudicated with the exception of the Rule 59
motion. Nevertheless, the trial judge decided to address the matter. The order states that
the suggestion of recusal was not well taken and was denied because the trial judge had
“no perceived biases that would require the court to self-excuse because the court felt it
could not be fair to any attorney or party before the court.”
Thereafter, the trial court entered a separate order denying the motion to alter or
amend to the extent that it raised additional arguments. The appellant timely filed a notice
of appeal to this Court.
II. ISSUES PRESENTED
On appeal, the determinative issue raised by the appellant is:
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1. “[W]as the trial court’s adjudicator disqualified to adjudicate by the Fourteenth
Amendment to the United States Constitution [] Due Process Clause guarantee that
every litigant in the United States shall be adjudged by no person other than an
adjudicator as to whom there is no appearance of undermined neutrality?”
The appellees raise the following additional issues, which we have slightly restated:
1. Whether this Court lacks jurisdiction because the appellant’s appeal was untimely;
2. Whether the constitutionality of Tennessee Supreme Court Rule 10B is not properly
before this Court.1
For the following reasons, we affirm the decision of the circuit court.
III. DISCUSSION
A. Appellate Jurisdiction
We begin with the appellees’ issue regarding whether this Court lacks jurisdiction
to consider this appeal. The appellees argue that the appellant’s “Rule 59.04 Motion to
Alter or Amend” was not a proper motion to alter or amend because it essentially asked the
court to reconsider its prior rulings, while at the same time presenting new and previously
untried arguments, without seeking relief on an appropriate ground under Rule 59. Thus,
the appellees argue that the appellant’s motion was improper and did not operate to toll the
time period for filing an appeal to this Court.
“[A] motion to alter or amend pursuant to Tennessee Rule of Civil Procedure 59.04,
if timely filed, toll[s] commencement of the thirty-day period [for filing a notice of appeal]
until an order granting or denying the motion is entered.” Albert v. Frye, 145 S.W.3d 526,
528 (Tenn. 2004) (citing Tenn. R. App. P. 4(b); Binkley v. Medling, 117 S.W.3d 252, 255
(Tenn. 2003)). However, we “must consider the substance of a motion in determining
whether it is in fact one of the specified post-trial motions which toll commencement of
the time.” Tenn. Farmers Mut. Ins. Co. v. Farmer, 970 S.W.2d 453, 455 (Tenn. 1998). At
this point, the issue is not whether the trial court correctly denied the motion but instead
whether the motion “was one recognized under Rule 59.” U.S. Bank, N.A. v. Tenn. Farmers
Mut. Ins. Co., 410 S.W.3d 820, 826 (Tenn. Ct. App. 2012).
“A motion to alter or amend should ‘be granted when the controlling law changes
before the judgment becomes final; when previously unavailable evidence becomes
1
We agree that the constitutionality of Rule 10B is not before this Court. Although the appellant’s
brief suggested in a footnote that Rule 10B is unconstitutional, he also insisted that he sought no relief
pursuant to Rule 10B, and he did not list any issue on appeal regarding the constitutionality of Rule 10B.
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available; or to correct a clear error of law or to prevent injustice.’” U.S. Bank, 410 S.W.3d
at 826 n.2 (quoting In re M.L.D., 182 S.W.3d 890, 895 (Tenn. Ct. App. 2005)). Such a
motion “‘should not be used to raise or present new, previously untried or unasserted
theories or legal arguments.’” Id. (quoting In re M.L.D., 182 S.W.3d at 895). Additionally,
a Rule 59.04 motion is not simply an opportunity “to re-litigate the issues previously
adjudicated” by the trial court. Burris v. Burris, 512 S.W.3d 239, 247 (Tenn. Ct. App.
2016).
As previously noted, the appellant’s post-judgment motion spanned fifty-nine pages
and addressed a wide range of issues, including disqualification of the trial judge, the
American Rule for paying attorney’s fees, and in personam jurisdiction. In their response,
the appellees argued that the motion was an improper motion to alter or amend that did not
extend the time for appeal. However, the trial court treated the motion as a motion to alter
or amend (albeit with an “embedded” recusal motion). The trial court entered one order
addressing the recusal issue and a separate order addressing the remainder of the arguments
in the motion to alter or amend.
We likewise conclude that the appellant’s motion should be treated, at least in part,
as a legitimate motion to alter or amend. Within his fifty-nine pages of argument, the
appellant arguably “moved the trial court to address what [he] considered to be a clear error
of law and/or injustice, thereby providing the trial court with an opportunity to correct any
errors before its judgment became final and avoiding an unnecessary appeal.” Clear Water
Partners, LLC v. Benson, No. E2016-00442-COA-R3-CV, 2017 WL 376391, at *12-13
(Tenn. Ct. App. Jan. 26, 2017) (vacating an order striking a motion to alter or amend as an
improper motion to reconsider); see also In re Estate of Vaughn, No. W2018-01600-COA-
R3-CV, 2019 WL 3812419, at *6 n.5 (Tenn. Ct. App. Aug. 14, 2019) (recognizing that
some of the relief requested in a post-judgment motion was “not amenable to consideration
under a motion to alter or amend” but that the litigant also argued that “the trial court erred
in its legal analysis,” which was “qualitatively similar to a motion under Rule 59”
requesting correction of a clear error of law); Stokely v. Stokely, No. E2017-00433-COA-
R3-CV, 2018 WL 485998, at *3-4 (Tenn. Ct. App. Jan. 19, 2018) (recognizing that a
motion to alter or amend or for new trial “largely ask[ed] the Trial Court to reconsider its
decision” but concluding that it was not “so deficient as to not toll the period in which to
file an appeal”); Goetz, 2016 WL 537818, at *6 (concluding that another post-judgment
motion filed by the appellant in this case “impermissibly sought to present previously
unasserted theories and legal arguments” but “arguably also requested that the trial court
correct a clear error of law” such that it was properly deemed a motion to alter or amend).
As such, the motion to alter or amend tolled the time period for filing a notice of appeal,
and the appellant’s notice of appeal was timely filed.
B. Williams v. Pennsylvania
Next, we consider the appellant’s argument regarding disqualification of the trial
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judge. Notably, the appellant has based his argument on statements made by the trial judge
nearly a decade ago in a separate case. The appellant has not filed a written motion for
recusal in accordance with Tennessee Supreme Court Rule 10B. Instead, when the
litigation between the parties finally appeared to be at its end, he filed a motion to alter or
amend arguing that the trial court’s final order and all previous orders were void. He
argued that the trial judge had a “sua sponte obligation” to recuse herself regardless of the
absence of any motion for recusal. The appellant maintains this argument on appeal,
contending that this result is mandated by the United States Supreme Court’s decision in
Williams v. Pennsylvania.
Tennessee Supreme Court Rule 10B, section 1.01, states, “Any party seeking
disqualification, recusal, or a determination of constitutional or statutory incompetence of
a judge of a court of record, or a judge acting as a court of record, shall do so by a written
motion filed promptly after a party learns or reasonably should have learned of the facts
establishing the basis for recusal.” In Cook v. State, 606 S.W.3d 247, 254-55 (Tenn. 2020),
the Tennessee Supreme Court set forth the following principles regarding recusal:
If a litigant knows of facts indicating that a judge cannot fulfill the
judicial obligations of fairness and impartiality, the litigant should request
the judge’s recusal by filing a written motion. See Tenn. Sup. Ct. R. 10B, §
1.01. Recusal motions should be filed when “the facts forming the basis of
that motion become known.” Bean v. Bailey, 280 S.W.3d 798, 803 (Tenn.
2009) (citing Davis v. Tenn. Dep’t of Emp’t Sec., 23 S.W.3d 304, 313 (Tenn.
Ct. App. 1999)). A litigant cannot manipulate the judicial process by
knowing of allegedly improper judicial conduct but remaining silent until
after the legal matter has been resolved unfavorably to the litigant. Id.(quoting Tenn. Dep’t of Emp’t Sec., 23 S.W.3d at 313). Therefore, a claim
of judicial bias may be deemed waived if a litigant either fails to file a written
recusal motion or fails to file a written recusal motion in a timely manner
after learning the facts that form the basis of the request. Id. (citing Tenn.
Dep’t of Emp’t Sec., 23 S.W.3d at 313).
In some circumstances, however, judges have an obligation to recuse
themselves even if litigants do not file recusal motions. Tenn. Sup. Ct. R.
10, R.J.C. 2.11, cmt. 2 (“A judge is obligated not to hear or decide matters in
which disqualification is required, even though a motion to disqualify is not
filed.”). Rule of Judicial Conduct 2.11(A) enumerates six specific
circumstances in which recusal is required, even if a motion for recusal is not
filed. Tenn. Sup. Ct. R. 10, R.J.C. 2.11(A)(1)-(6). But the six listed
circumstances are illustrative not exclusive, and “[a] judge shall disqualify
himself or herself in any proceeding in which the judge’s impartiality might
reasonably be questioned[.]” Tenn. Sup. Ct. R. 10, R.J.C. 2.11(A) (emphases
added).
Rule of Judicial Conduct 2.11 recognizes that “the appearance of bias
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is as injurious to the integrity of the judicial system as actual bias.” [Davis
v.] Liberty Mut. Ins. Co., 38 S.W.3d [560, 565 (Tenn. 2001)] (citing Alley
[v. State], 882 S.W.2d [810, 820 (Tenn. Crim. App. 1994))]. As a result,
Rule of Judicial Conduct 2.11 incorporates the objective standard Tennessee
judges have long used to evaluate recusal motions. In re Hooker, 340 S.W.3d
389, 395 (Tenn. 2011) (citing State v. Cannon, 254 S.W.3d 287, 307 (Tenn.
2008); Liberty Mut. Ins. Co., 38 S.W.3d at 564-65). Under this objective
test, recusal is required if “‘a person of ordinary prudence in the judge’s
position, knowing all of the facts known to the judge, would find a reasonable
basis for questioning the judge’s impartiality.’” Liberty Mut. Ins. Co., 38
S.W.3d at 564-65 (quoting Alley, 882 S.W.2d at 820). Rule of Judicial
Conduct 2.11 and the objective standard it embraces reflect that
our system of law has always endeavored to prevent even the
probability of unfairness.... Such a stringent rule may
sometimes bar trial by judges who have no actual bias and who
would do their very best to weigh the scales of justice equally
between contending parties. But to perform its high function in
the best way “justice must satisfy the appearance of justice.”
In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955)
(quoting Offutt [v. U.S.], 348 U.S. [11, 14, 75 S.Ct. 11 (1954))].
Id. at 254-55.
Throughout this case, the appellant has insisted that he “seeks no relief” pursuant to
Rule 10B or any other aspect of Tennessee law. Instead, he wants the “singular issue”
before this Court to be whether he is entitled to relief under the Due Process Clause of the
Fourteenth Amendment as discussed in Williams v. Pennsylvania. Thus, we turn to
examine that decision.
Williams involved a prisoner who was convicted of first-degree murder and
sentenced to death. 136 S.Ct. at 1903. The Pennsylvania Supreme Court had vacated the
decision of a postconviction court granting relief to the prisoner and reinstated his death
sentence. Id. at 1903-1904. One of the justices on the Pennsylvania Supreme Court was
the former district attorney who had given the prosecutor permission to seek the death
penalty in the prisoner’s case almost three decades earlier. Id. The justice denied the
prisoner’s motion for recusal and participated in the decision. Id. at 1903. The issue before
the United States Supreme Court was “whether the justice’s denial of the recusal motion
and his subsequent judicial participation violated the Due Process Clause of the Fourteenth
Amendment.” Id. The Court’s existing precedent set forth an objective standard requiring
recusal “when the likelihood of bias on the part of the judge ‘is too high to be
constitutionally tolerable.’” Id. (quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868,
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872, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009)). Ultimately, the Court concluded that this
standard was met and that due process compelled recusal of the justice. Id.The Supreme Court framed its holding as follows: “under the Due Process Clause
there is an impermissible risk of actual bias when a judge earlier had significant, personal
involvement as a prosecutor in a critical decision regarding the defendant's case.” Id. at
1905. The Court explained,
Due process guarantees “an absence of actual bias” on the part of a
judge. In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942(1955). Bias is easy to attribute to others and difficult to discern in oneself.
To establish an enforceable and workable framework, the Court’s precedents
apply an objective standard that, in the usual case, avoids having to determine
whether actual bias is present. The Court asks not whether a judge harbors
an actual, subjective bias, but instead whether, as an objective matter, “the
average judge in his position is ‘likely’ to be neutral, or whether there is an
unconstitutional ‘potential for bias.’” Caperton, 556 U.S., at 881, 129 S.Ct.
2252. Of particular relevance to the instant case, the Court has determined
that an unconstitutional potential for bias exists when the same person serves
as both accuser and adjudicator in a case. See Murchison, 349 U.S., at 136-
137, 75 S.Ct. 623. This objective risk of bias is reflected in the due process
maxim that “no man can be a judge in his own case and no man is permitted
to try cases where he has an interest in the outcome.” Id., at 136, 75 S.Ct.
623.
Id. at 1905-1906. According to the Court, this due process guarantee “would have little
substance if it did not disqualify a former prosecutor from sitting in judgment of a
prosecution in which he or she had made a critical decision.” Id. at 1906. In that situation,
the Court found “a risk that the judge ‘would be so psychologically wedded’ to his or her
previous position as a prosecutor that the judge ‘would consciously or unconsciously avoid
the appearance of having erred or changed position.’” Id. (quoting Withrow, 421 U.S., at
57, 95 S.Ct. 1456). Even decades later, there was still a serious risk that the judge “would
be influenced by an improper, if inadvertent, motive to validate and preserve the result
obtained through the adversary process.” Id. at 1907. Thus, the justice’s “significant,
personal involvement in a critical decision in [the] case gave rise to an unacceptable risk
of actual bias.” Id. at 1908. This risk of actual bias “so endangered the appearance of
neutrality” that due process required his recusal. Id. at 1908-1909.
In closing, the Supreme Court emphasized that “due process demarks only the outer
boundaries of judicial disqualifications” and that statutes and professional codes of conduct
“provide more protection than due process requires.” Id. at 1908 (internal quotations
omitted). “Most questions of recusal are addressed by more stringent and detailed ethical
rules, which in many jurisdictions already require disqualification under the circumstances
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of this case.” Id. Notably, the Court added, “[t]he fact that most jurisdictions have these
rules in place suggests that today’s decision will not occasion a significant change in
recusal practice.” Id.
On appeal, the appellant argues that Williams was a “game-changer on judicial
neutrality.” He reiterates that he “stands on [his] Fourteenth Amendment, Due Process
Clause right to have an adjudicator who is free of an appearance of undermined neutrality
as articulated by Williams[.]” Relying on the trial judge’s statements from 2010 and 2012
about children, the appellant insists that the trial judge was “psychologically wedded” to
the “protection of minor children over the rights of the adults.” Thus, the appellant argues
that the trial judge was “disqualified to adjudicate” in this case and should have recused
herself sua sponte. The appellant acknowledges that the children referenced by the trial
judge “were not parties by any definition,” that this was not a domestic relations or family
law case of any kind, and that the children had no interest in the subject matter of this
proceeding. He states,
Respectfully, the issue in the instant case has nothing to do with any hint that
the trial court adjudicator may have been biased (non-neutral) in the sense of
favoritism toward one litigant in comparison to another litigant. There is
none of that in this, in actuality or in appearance. Rather, [the] trial court
adjudicator was openly biased in favor of non-parties (children), and the trial
court adjudicator unabashedly stated that the interests [of] both litigants
would be subordinated to the interests of the minor children, as seen through
the eye[s] of the trial court adjudicator.
The appellant interprets Williams to mean that “the evidence needed to prove a
disqualifying ‘appearance’ is minimal and includes all sorts of information including
highly circumstantial evidence that may not even be admissible in an adversarial context.”
According to the appellant, “Williams makes it next to impossible, if not impossible, for an
adjudicator who is ‘psychologically wedded’ to something connected to a case to avoid an
unconstitutional appearance of undermined neutrality.” He contends that “[v]ery little,
qualitatively, is required to prove an appearance of a constitutionally impermissible
compromise of neutrality[.]” In sum, the appellant asks this Court to “reverse all orders in
this case . . . because the trial court adjudicator adjudicated encumbered by the appearance
of an admitted predisposition, to which she was admittedly ‘psychologically wedded,’ and
which she admittedly allowed to control her adjudications in this case.”
Williams has not been interpreted or applied as broadly as the appellant suggests. A
brief review of some cases from the federal circuits is instructive. For instance, in United
States v. Williams, 949 F.3d 1056, 1061 (7th Cir. 2020), the United States Court of Appeals
for the Seventh Circuit explained that the due process analysis for recusal requires courts
to determine whether “‘the probability of actual bias on the part of the judge or
decisionmaker is too high to be constitutionally tolerable.’” (quoting Rippo v. Baker, 137
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S.Ct. 905, 907 (2017)). However, the Seventh Circuit added,
Courts have identified a limited set of circumstances that meet this
standard. First, actual bias is disqualifying. See, e.g., Franklin [v.
McCaughtry, 398 F.3d 955, 961-62 (7th Cir. 2005)] (finding actual bias
where there was evidence that the judge determined that defendant was guilty
before trial). Second, “there is an impermissible risk of actual bias when a
judge earlier had significant, personal involvement as a prosecutor in a
critical decision regarding the defendant’s case.” Williams v. Pennsylvania,
––– U.S. ––––, 136 S. Ct. 1899, 1905, 195 L.Ed.2d 132 (2016). Third, a
judge is disqualified when the judge has a financial incentive in the case’s
outcome. See, e.g., Rippo, 137 S.Ct. at 906; Caperton, 556 U.S. at 877-78,
129 S.Ct. 2252; Bracy [v. Gramley], 520 U.S. [899,] 906, 909, 117 S.Ct. 1793[(1997)]; Bracy v. Schomig, 286 F.3d 406, 413, 419 (7th Cir. 2002) (en banc).
Lastly, a judge should recuse himself when the judge becomes “personally
embroiled” with a litigant. Mayberry v. Pennsylvania, 400 U.S. 455, 465-66,
91 S.Ct. 499, 27 L.Ed.2d 532 (1971); see also Del Vecchio [v. Ill. Dep’t of
Corr., 31 F.3d 1363, 1373-75 (7th Cir. 1994)].
This case does not fit into these buckets. Williams has not provided
any evidence of actual bias. . . . Nor is there any evidence that Judge Bruce
had a pecuniary interest in the outcome, previously worked on the case as a
prosecutor, or became “personally embroiled” with the parties.
Id.Similarly, in Johnson v. Morales, 946 F.3d 911, 918 n.3 (6th Cir. 2020), the Sixth
Circuit observed that the Supreme Court’s recusal precedents have “declined to find an
unconstitutional risk of bias in all but a few narrow circumstances—none of which apply
here.” The Sixth Circuit explained:
Before its decision in Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868,
129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009), the [Supreme] Court had only
required recusal in two types of situations. The first was “when the judge
ha[d] a financial interest in the outcome of the case,” and the second was
“when the judge [was] trying a defendant for certain criminal contempts.”
Id. at 890, 129 S.Ct. 2252 (Roberts, C.J., dissenting).
In Caperton, the Court held that there is an unconstitutional risk of
bias “when a person with a personal stake in a particular case had a
significant and disproportionate influence in placing the judge on the case by
raising funds or directing the judge’s election campaign when the case was
pending or imminent.” Id. at 884, 129 S.Ct. 2252. The narrowness of its
holding reflected the Court’s perception that it was dealing with an “extreme
case” that presented “an extraordinary situation” with facts it considered
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“extreme by any measure.” Id. at 887, 129 S.Ct. 2252. This, the Court
explained, was characteristic of its recusal cases, each of which “dealt with
extreme facts that created an unconstitutional probability of bias that ‘cannot
be defined with precision.’” Id. (quoting Aetna Life Ins. Co. v. Lavoie, 475
U.S. 813, 822, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986)).
The Court next revisited its recusal jurisprudence in Williams. There,
once again, the Court framed its holding narrowly: “[W]here a judge has had
an earlier significant, personal involvement as a prosecutor in a critical
decision in the defendant’s case, the risk of actual bias in the judicial
proceeding rises to an unconstitutional level.” Williams, 136 S. Ct. at 1910.
The situation here bears no resemblance to either Caperton or Williams.
Id.
Finally, we note a similar discussion by the Fourth Circuit in United States v.
Richardson, 796 F.App’x 795, 799-800 (4th Cir. 2019), cert. denied, 140 S.Ct. 2656(2020), and cert. denied sub nom. Chadwick v. United States, 140 S.Ct. 2750 (2020).
Because “most matters relating to judicial disqualification [do] not
rise to a constitutional level,” Caperton, 556 U.S. at 876, 129 S.Ct. 2252(alteration in original) (quoting FTC v. Cement Inst., 333 U.S. 683, 702, 68
S.Ct. 793, 92 L.Ed. 1010 (1948)), it is the “extraordinary situation where the
Constitution requires recusal,” id. at 887, 129 S.Ct. 2252. These situations
may be largely categorized as instances when an extraordinary financial
interest exists between a judge and a litigant, see, e.g., Caperton, 556 U.S. at
884, 129 S.Ct. 2252 (requiring recusal of elected state court judge in case
involving corporation whose CEO had contributed about $3 million to
judge’s election campaign following lower court’s entry of $50 million
judgment against corporation when it was likely that corporation would seek
review in state supreme court), when a judge acts as a significant part of the
accusatory process before presiding over the accused’s trial, see, e.g.,
Williams, 136 S. Ct. at 1903 (requiring recusal of judge before whom
defendant appeared seeking relief from a death sentence where the judge had,
as district attorney, given approval to seek death penalty against defendant);
In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955)
(requiring recusal of judge when judge acts as a “one-man grand jury” by
hearing testimony qua grand jury, presiding over contempt hearing of grand
jury witnesses qua judge, and holding grand jury witnesses in contempt for
their conduct before judge qua grand jury), or when a judge is involved in a
running, bitter controversy with a litigant, see, e.g., Mayberry v.
Pennsylvania, 400 U.S. 455, 465, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971)
(requiring recusal of judge in a litigant’s contempt trial when that litigant
continuously, “cruelly slandered” the judge).
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Simply put, an extraordinary situation is not before us. . . .
Id.Like these federal circuit courts, we conclude that the facts of the case before us are
a far cry from those present in Williams. The appellant claims that the trial judge in this
civil matter appeared to have a predisposition in favor of the best interest of children, in
general, over adults. The appellant admits that the trial judge had no bias “in actuality or
in appearance” that would advantage either party in this case, and this was not one of those
extraordinary situations in which the likelihood of bias was too high to be constitutionally
tolerable. The facts of this case simply do not rise to the level of a due process violation.
The Due Process Clause of the Fourteenth Amendment did not require the trial judge to
disqualify herself sua sponte, and the orders entered by the trial judge are not void. All
other issues are pretermitted.2
IV. CONCLUSION
For the aforementioned reasons, we affirm the decision of the circuit court denying
the appellant’s post-judgment motion and the award of attorney fees. Costs of this appeal
are taxed to the appellant, William Goetz, for which execution may issue if necessary.
_________________________________
CARMA DENNIS MCGEE, JUDGE
2
We note that the appellees asked this Court to award them attorney’s fees for the filing of a
frivolous appeal. However, they requested that this Court make such an award sua sponte and failed to list
this as an issue presented for review. We therefore decline to award attorney’s fees on appeal. See Brunetz
v. Brunetz, 573 S.W.3d 173, 186 (Tenn. Ct. App. 2018) (concluding that requests for attorney’s fees on
appeal were waived where they were argued in the briefs but not designated as an issue).
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