IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned January 13, 2014

CYNTHIA SHERWOOD MCKENZIE V. JASON WAYNE MCKENZIE

Appeal from the Circuit Court for Davidson County

No. 12D3542 Philip E. Smith, Judge

No. M2014-00010-COA-T10B-CV - Filed February 11, 2014

This is an appeal of the trial court’s denial of a motion to recuse. The motion was

based upon allegations of bias against the party, who is also a licensed attorney

representing herself in this matter. Because we can find no evidence in the record of

any bias that would require recusal, we affirm the trial court’s denial of the motion.

Tenn. R. App. P. 3 Appeal as of Right/Tenn. Sup. Ct. R. 10B; Judgment of the

Circuit Court Affirmed

PATRICIA J. COTTRELL, P.J., M.S., delivered the opinion of the Court, in which FRANK G.

CLEMENT, JR. and ANDY D. BENNETT, JJ., joined.

Cynthia Sherwood McKenzie, Nashville, Tennessee, Pro Se.

Lewis A. Williams, Nashville, Tennessee, for the appellee, Jason Wayne McKenzie.

OPINION

The underlying case is a divorce action between parties who were married for two

years and had no minor children. During the course of the litigation, the wife was

represented by several counsel, apparently sequentially, but at some point took over her

own representation. Ms. McKenzie, the wife, is an attorney licensed to practice in this

state.

Ms. McKenzie filed a motion with the trial court asking that judge to recuse

himself from the case. She believed that he was biased against her because of some

statements he made during various proceedings and because of some rulings. The trial

court denied the motion in an order addressing all grounds raised in the motion. This

appeal followed. The record before us includes some orders entered by the trial court as

well as transcripts of hearings relevant to the points raised in the appeal.
I. APPEALS UNDER TENN. R. S. CT. 10B

Appeals from orders denying motions to recuse are governed by Tenn. S. Ct. R.

10B. Pursuant to Tenn. S. Ct. R. 10B, §2.01, parties are entitled to an “accelerated

interlocutory appeal as of right” from an order denying a motion for disqualification or

recusal. If this court, based on the petition and supporting documents, determines that no

answer is needed, we may act summarily on the appeal. Tenn. S. Ct. R. 10B, §2.05.

Otherwise, this court may order an answer and may also order further briefing by the

parties. In addition, Tenn. S. Ct. R. 10B, §2.06 grants this court the discretion to decide

the appeal without oral argument.

We have reviewed Ms. McKenzie’s petition and supporting documents,

determined that an answer and additional briefing are unnecessary, and elected to act

summarily on the appeal. We also find oral argument unnecessary pursuant to Tenn. S.

Ct. R. 10B, §2.06.

The only issue before this court in an appeal under Tenn. S. Ct. R. 10B is whether

the trial court erred in denying the motion for recusal. See Duke v. Duke, 2012 WL

4513613 at *2 (Tenn. Ct. App. Oct. 2, 2012). We review the trial court’s recusal decision

under a de novo standard of review. Tenn. S. Ct. R. 10B, §2.06. The merits of any other

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rulings may not be reviewed in a Rule 10B appeal. Duke, 2012 WL 4513613 at *2.

II. JUDICIAL IMPARTIALITY

Ms. McKenzie’s motion for recusal alleged as grounds that the trial judge is biased

against her.

It is, of course, of primary importance that a litigant’s case be decided by an

impartial and unbiased court. In re Hooker, 340 S.W.3d 389, 394 (Tenn. 2011). As the

Tennessee Supreme Court has said:

. . . [O]ne of the core tenets of our jurisprudence is that litigants have a right

to have their cases heard by fair and impartial judges. Kinard v. Kinard,

986 S.W.2d 220, 227 (Tenn. Ct. App. 1998) . . . . Accordingly, judges must

Prior to the adoption of Tenn. S. Ct. R. 10B, appellate courts reviewed recusal decisions under an

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abuse of discretion standard. State v. Hester, 324 S.W.3d 1, 72-73 (Tenn. 2010); Bailey v. Blount County Bd

of Educ., 303 S.W.3d 216, 239-40 (Tenn. 2010); State v. Hines, 919 S.W.2d 573, 578 (Tenn. 1995) (“A

motion for recusal based upon the alleged bias or prejudice of the trial judge addresses itself to the sound

discretion of the trial court and will not be reversed on appeal unless clear abuse appears on the face of the

record”).

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conduct themselves at all times in a manner that promotes public

confidence in the integrity and impartiality of the judiciary and shall not be

swayed by partisan interests, public clamor, or fear of criticism. Tenn. S.

Ct. R. 10, Cannon 2(A), 3(B)(2).

Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 564 (Tenn. 2001). “If the public is to

maintain confidence in the judiciary, it is required that cases be tried by unprejudiced and

unbiased judges.” State v. Rimmer, 250 S.W.3d 12, 37 (Tenn. 2008) (quoting Alley v.

State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994)).

In addition, recusal motions require consideration of whether there may be an

appearance of bias even though no actual bias exists. The public’s confidence in the

judiciary requires not only that the judge be impartial in fact, but also that the judge be

perceived to be impartial. Davis, 38 S.W.3d at 564.

It is important “not only that justice be administered . . . but that [the public] shall

have no sound reason for supposing that it is not administered.” Smith v. State, 357

S.W.3d 322, 340 (Tenn. 2011) (quoting In re Cameron, 151 S.W. 64, 76 (Tenn. 1912)).

In other words, “justice must satisfy the appearance of justice.” State v. Lynn, 924

S.W.2d 892, 898 (Tenn. 1996) (quoting Offutt v. United States, 348 U.S. 11, 13 (1954)).

Accordingly, the question of recusal on the basis of bias frequently involves two

different inquiries. The first is whether the judge has actual bias; the second is whether

his or her “impartiality might reasonably be questioned,” i.e., whether there is an

appearance of bias. Tenn. Sup. Ct. R. 10, Canon 2, R. 2.11(A); Bean v. Bailey, 280

S.W.3d 798, 805 (Tenn. 2009).

Since the appearance of bias is as injurious to the integrity of the judicial system as

actual bias, the test for determining whether a judge’s impartiality might reasonably be

questioned is, and must be, an objective one. In re Hooker, 340 S.W.3d at 395; Smith v.

State, 357 S.W.3d at 341; Davis, 38 S.W.3d at 565. The test for determining whether an

appearance of impartiality exists is whether 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.” In re Hooker, 340 S.W.3d at 395 (citations

omitted); State v. Hester, 324 S.W.3d 1, 73 (Tenn. 2010); Bean, 280 S.W.3d at 805.

Thus, even when a judge believes that he or she can hear a case fairly and

impartially, the judge should grant a motion to recuse 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.” Tenn. Sup.Ct. R. 10, R. 2.11(A); Bean v.

Bailey, 280 S.W.3d at 805.

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III. RECUSAL FOR ALLEGED BIAS

In examining requests for recusals due to bias, it is important to keep in mind the

fundamental protections that the rules on recusal are intended to provide. The law on

judicial bias is intended “to guard against the prejudgment of the rights of litigants and to

avoid situations in which the litigants might have cause to conclude that the court had

reached a prejudged conclusion because of interest, partiality, or favor.” Bean, 280

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S.W.3d at 803 (quoting State v. Austin, 87 S.W.3d 447, 470 (Tenn. 2002)) (emphasis

added); see In re Hooker, 340 S.W.3d at 395.

Ordinarily, the bias that could disqualify a judge in a particular case is specific to

the judge in light of the parties, attorneys, or other factors in the case. Rule 2.11 of the

Rules of Judicial Conduct, Tenn. Sup. Ct. R. 10, Canon 2, R. 2.11, provides:

(A) A judge shall disqualify himself or herself in any proceeding in which

the judge’s impartiality might reasonably be questioned, including but not

limited to the following circumstances:

(1) The judge has a personal bias or prejudice concerning a party or party’s

lawyer, or personal knowledge of facts that are in dispute in the

proceedings.

Rule 2.11(A) lists other specific situations which create questions regarding the

judge’s ability to be impartial, including defined relationships to the parties or counsel on

the part of the judge or the judge’s family. None of those situations is alleged to exist

here.

Generally, the terms “bias” and “prejudice” refer to a state of mind or attitude that

works to predispose a judge for or against a party. Alley v. State, 882 S.W.2d 810, 821

(Tenn. Crim. App. 1994). However,

[n]ot every bias, partiality, or prejudice merits recusal. To disqualify,

prejudice must be of a personal character, directed at the litigant, “must

stem from an extrajudicial source and result in an opinion on the merits on

some basis other than what the judge learned from participation in the

case.”

The Constitutional provision, Article VI, section 11 of the Tennessee Constitution, provides that

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“[n]o Judge of the Supreme or Inferior Courts shall preside on the trial of any cause in the event of which he

may be interested . . . .”

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* * *

If the bias is based upon actual observance of witnesses and evidence given

during the trial, the judge’s prejudice does not disqualify the judge.

However, if the bias is so pervasive that it is sufficient to deny the litigant a

fair trial, it need not be extrajudicial.

Id. (emphasis added) (quotations and citations omitted); see also Spain v. Connolly, 606

S.W.2d 540, 544 (Tenn. Ct. App. 1980).

Generally, in order to justify recusal, any alleged bias must arise from extrajudicial

sources and not from events or observations during litigation of a case. If the bias is

alleged to stem from events occuring in the course of the litigation of the case, the party

seeking recusal has a greater burden to show bias that would require recusal, i.e., that the

bias is so pervasive that it is sufficient to deny the litigant a fair trial.

Other jurisdictions follow a similar rule. Federal courts and some other state

courts express the rule using a little different language, but with no substantive difference.

Essentially, if the source of the alleged bias is not extrajudicial, a party moving for

recusal must demonstrate “a deep-seated favoritism or antagonism that would make fair

judgment impossible.” See, e.g., United States v. Adams, 722 F.3d 788, 838 (6th Cir.

2013); Jenkins v. Kerry, 928 F. Supp. 2d 122, 127 (D.D.C. 2013); Albuquerque

Bernalillo Cnty. Water Util. Authority v. New Mexico Public Regulation Comm’n, 229

P.3d 494, 511 (N.M. 2010); Teachers4Action v. Bloomberg, 552 F. Supp. 2d 414, 415

(S.D. N.Y. 2008).

Ms. McKenzie has not alleged that there is any extrajudicial source of the bias she

claims. Instead, her allegations stem entirely from actions, statements, and rulings made

during or as a result of various hearings. Consequently, her request for recusal is subject

to a higher burden than if it arose from extrajudicial sources. The alleged bias must be so

pervasive that it denies a litigant a fair trial.

The evidence Ms. McKenzie cites as support for her allegations that the trial judge

was biased against her fall into two general general categories: (1) failure to follow

precedent and otherwise make incorrect rulings against her, and (2) statements made in

court that Ms. McKenzie characterizes as “personal attacks” against her. We first

examine the law applicable to these types of allegations.

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A. Adverse Rulings

Because the protections against bias are generally specific to an individual judge,

and arise from a personal situation and a source outside the lawsuit, rulings made during a

lawsuit are not enough to require recusal. Generally, allegations based on adverse rulings

do not rise to the standard of bias required to support a request for recusal. See, e.g.,

Peterson v. Swarthout, 214 P.3d 332, 339 (Alaska 2009); Massey v Town of Branford,

985 A.2d 335, 343 (Conn. App. 2009); Jones v. State, 841 So.2d 115, 137-38 (Miss.

2003); Briggs v Clinton Cnty. Bank and Trust Co., 452 N.E.2d 989, 1006 (Ind. App.

1983).

The law in Tennessee is similarly well settled that “[a]dverse rulings by a trial

court are not usually sufficient grounds to establish bias.” Keisling v. Keisling, 92 S.W.3d

374, 380 (Tenn. 2002); Alley v. State, 882 S.W.2d at 821. The reason for this proposition

is obvious. “If the rule were otherwise, recusal would be required as a matter of course

since . . . courts necessarily rule against parties and witnesses in every case, and litigants

could manipulate the impartiality issue for strategic advantage, which the courts frown

upon.” Davis, 38 S.W.3d at 565 (citation omitted).

Therefore, the mere fact that a judge has ruled adversely to a party or witness is

not grounds for recusal. Id.; State v. Hines, 919 S.W.2d 573, 578 (Tenn. 1995). “A trial

judge’s adverse rulings are not usually sufficient to establish bias.” State v. Cannon, 254

S.W.3d 287, 308 (Tenn. 2008). “Rulings of a trial judge, even if erroneous, numerous and

continuous, do not, without more, justify disqualification.” Alley v. State, 882 S.W.2d at

821.

B. Statements During Hearings

As recounted above, opinions of a judge based upon events that occur during the

litigation of a case are not extrajudicial and do not arise from outside or from personal

bias. Consequently, “judicial remarks during the course of a trial that are critical or

disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not

support a bias or partiality challenge.” United States v. Adams, 722 F.3d at 837 (quoting

Liteky v. United States, 510 U.S. 540, 555 (1994)); Albuquerque Bernalillo Cnty. Water

Utility Authority, 229 P.3d at 511.

The rule makes common sense. The Tennessee Supreme Court explained in

Davis v. Liberty Mut. Ins. Co., 38 S.W.3d at 565, that if parties and counsel could demand

recusal on the basis of rulings, “recusal would be required as a matter of course since trial

courts necessarily rule against parties and witnesses in every case, and litigants could

manipulate the impartiality issue for strategic advantage.”

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The same danger of manipulation in order to require a change of judge exists

where the basis for recusal is criticism or irritation directed at an attorney. A rule that

allowed an attorney to have his case transferred to another judge by quarreling with the

court is not in the interest of justice. If every time a judge criticized the conduct of an

attorney in the trial of a case, no matter how much it was warranted, a ground for recusal

might exist, it would allow for the kind of forum shopping and cause for delay that is

disfavored.

Recusal is not required because a judge has formed an opinion that a particular

counsel is abrasive or has a litigation strategy that might include delay as a tactic.

Marcum v. Caruana, 2012 WL 3984631, at *7 (Tenn. Ct. App. Sept. 11, 2012);; In re

D.C., 49 S.W.3d 694, 698 (Mo. Ct. App. 2001) (a judge’s possession of views about the

conduct of a party or of the party’s counsel does not constitute disqualifying prejudice).

A judge’s irritation or exasperation with counsel, criticism of counsel for

perceived delays or failures to follow rules, friction occurring during litigation, or even

sanctions and contempt charges do not establish the objective personal bias that would

prevent a fair assessment of the merits of the case. See, e.g., Rhodes v McDannel, 945

F.2d 117, 120 (6th Cir. 1991); People v. Smith, 410 N.E.2d 973, 978-79 (Ill. App. Ct.

1980); Blacknell v State, 502 N.E.2d 899, 904 (Ind. 1987); McKinley v. Iowa Dist.

Court for Polk Cnty., 542 N.W.2d 822, 827 (Iowa 1996).

A number of jurisdictions have acknowledged that a judge may, in some

circumstances, be disqualified for prejudice against counsel but have

denied disqualification because the facts were insufficient to demonstrate

bias. Judicial antipathy and irritation with counsel, rebuke of the attorney

by the judge, the judge’s holding the attorney in contempt, and adverse

legal rulings by the judge have all been considered legally insufficient

reasons to disqualify a judge. In addition, a conflict between the judge and

counsel in another case, a judge’s attempt to appoint different defense

counsel, ex parte contacts by the judge, and a judge’s comments to another

judge concerning counsel are not grounds for judicial disqualification.

Facts relied on to prove prejudice on the part of the judge were insufficient

in cases where there were prior critical comments by the judge, where

there was attorney opposition to the judge’s election, where there was

judicial reaction to counsel’s failure to appear in court, or in other

circumstances.

54 A.L.R. 5th 575, § 2[a] (Disqualification of judge for bias against counsel for litigant)

(footnotes omitted).

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As discussed earlier, a judge’s bias against an attorney, based upon occurrences

during litigation, may warrant disqualification only where hostility or bias is so

pervasive that it is sufficient to deny the litigant a fair trial. Any comments made by the

trial court must be construed in the context of all the facts and circumstances to

determine whether a reasonable person would construe those remarks as indicating

partiality on the merits of the case. Alley v. State, 882 S.W.2d at 822.

IV. ANALYSIS

In her 73-page petition filed in this court, Ms. McKenzie has alleged that various

actions or statements by the trial court demonstrate personal bias against her. Some

allegations are repeated and some grouped under more than one heading. We have

reviewed all the assertions made and examined the transcripts and documents provided

to us. We will not address each separate allegation in detail, but will examine some

examples.

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Our review of the transcripts indicates that Ms. McKenzie has characterized

events and statements in a way that differs from a full and fair assessment of them. For

example, Ms. McKenzie complains that one of her expert witnesses on computers was

not allowed to testify at a hearing on discovery disputes and restraining orders. After

hearing one witness who testified to hacking problems with Ms. McKenzie’s computers,

the trial court declined to hear the second expert. That decision was based upon the

description of the testimony that would be given.

Shortly thereafter, the judge was told that the potential witness would provide

additional information that would tie the hacking to Mr. McKenzie, a bit of information

that had not been related to the judge earlier. Upon learning that, the trial court stated

that the second expert should be called back in to testify because no one had yet “put Mr.

McKenzie’s fingerprints” on the hacking. However, Ms. McKenzie’s attorney did not

ever attempt to call the witness to the stand.

Ms. McKenzie’s counsel stated that she wanted the restraining order (prohibiting

Mr. McKenzie from remotely accessing information on Ms. McKenzie’s computers) and

wanted to be able to come back later and prove that the husband had violated the order.

The trial court then had counsel for Ms. McKenzie question the husband whether he

possessed any documents obtained remotely from the wife’s computers, and Mr.

McKenzie answered no to each question.

In her petition to this court, Ms. McKenzie seeks to add a basis for her allegations of bias that was

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not included in her motion for recusal presented to the trial judge. Under Rule 10B our review is limited to

the trial court’s denial of the recusal motion. Accordingly, we will not address these later allegations.

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Counsel concluded by telling the trial court, “we have our cause of action,” and

then verified that the court was going to issue a restraint on the husband remotely

accessing information on the wife’s computers. The court affirmed that was its

intention, and counsel for husband stated that the husband agreed to any such restraining

order.

Consequently, based on a full reading of the transcript of the hearing, we cannot

agree that the trial court prevented a witness from testifying. Additionally, Ms.

McKenzie was granted the relief she had requested. We cannot see how she may have

suffered any prejudice.

Next, Ms. McKenzie asserts that the trial judge should have recused himself

because his “personal attacks” against her evidence a prejudice against her. She

provides examples of such statements, and we have reviewed the transcripts of them all.

While Ms. McKenzie accuses the judge of calling her names, we disagree with that

characterization. Some of the statements involve advising her to consider retaining

another lawyer to represent her in this divorce. As the trial court explained, it had some

concern that she was too emotionally involved. While the court did refer to the old

saying about a lawyer who represents herself, the court did not call Ms. McKenzie a

“fool.” The judge did tell her in one instance that she was not thinking like a

professional but was acting like a scorned litigant. Having reviewed all the comments

cited by Ms. McKenzie in context, we do not agree that they were “personal attacks,”

nor did they indicate bias or prejudice against her that would suggest cause for removal.

The judge was concerned by the amount of time that had already been spent on a

divorce of short duration with no children and few assets, and several times expressed

his frustration with the situation and wondered at the cause. He also indicated on a few

occasions that Ms. McKenzie’s actions in the course of the litigation was at least part of

the problem. Additionally, he admonished Ms. McKenzie that attacks on another lawyer

were not acceptable in his court. We find no comments by the judge to Ms. McKenzie in

her role as counsel that could provide a basis for recusal. As discussed above, even

critical remarks during litigation do not show bias.

Another allegation is that the trial court disregarded controlling law and refused to

allow her to present evidence “in her own defense.” As stated above, adverse rulings do

not form the basis for an allegation of bias. All of the examples Ms. McKenzie provides

to support these allegations are, essentially, rulings of the trial court regarding

application of the law to the facts or evidentiary or procedural matters. In addition, she

challenges the trial court’s finding her in contempt and argues that the finding and the

procedure used indicate prejudice against her. Such rulings may be subject to review on

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appeal, but the merits of those decisions are not before us, and we hold that they do not

support a claim of prejudice under the legal standards set out earlier.

Ms. McKenzie also asserts that the trial judge should be recused because of

something she calls “extrajudicial considerations from cases involving other lawyers.”

The example given of that complaint consists of the judge telling Ms. McKenzie that he

did not let other lawyers get away with something, so he was not going to let her either.

There is simply no basis for Ms. McKenzie to claim this statement was somehow

inappropriate or indicative of prejudice. Her claim bears no relationship to the actual

facts or to relevant law.

Finally, we must address Ms. McKenzie’s claims that the trial judge exhibited a

gender bias. As evidence of alleged prejudice against her because of her gender, she

relies on the trial judge’s comment that a dog “is man’s best friend,” when there was an

issue over timely return of a dog to the husband. Additional evidence is alleged to exist

in the trial judge’s statement that he had recently dealt with a male lawyer going through

a divorce who used a rationale similar to one Ms. McKenzie was offering for her

lowered income and/or delay in meeting discovery deadlines. The judge stated that he

did not see why he should treat Ms. McKenzie differently.

We find absolutely no evidence of a bias against Ms. McKenzie based upon her

gender. In fact, given the “evidence” she cites in support of the allegation, we find her

allegation to be outrageous. Without any reasonable foundation, she has attacked the

motivation of the trial judge and accused him of a more general bias than just against her

in this lawsuit. We have serious concerns regarding her conduct and admonish her, as a

member of the bar, against making unfounded critical accusations regarding a judge.

Based upon the law discussed earlier and our review of the facts evidenced in the

transcripts and filings, Ms. McKenzie has failed to allege any ground for recusal.

V. CONCLUSION

The trial court’s order denying the motion for recusal is affirmed. Ms. McKenzie

is taxed with the costs for which execution, if necessary, may issue.

________________________________

PATRICIA J. COTTRELL, JUDGE

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