No Judicial Recused Merely for Being “Tight” With Court Employee
Tennessee case summary on judicial recusal in divorce.
Molly Leann Green v. Michael Wayne Green
She was required to come forward with evidence that would prompt a reasonable person to question the judge’s impartiality.
The husband and wife in this Fentress County, Tennessee, case were divorced in 2014, and the case was heard by Judge Todd Burnett. They subsequently reconciled and had another child, but did not remarry. The father brought a petition to establish parentage, and that order was also entered in the Juvenile Court by Judge Burnett.
Judge Burnett’s assistant was previously married to the husband’s father, but they divorced about eighteen years earlier.
In 2021, the mother filed a petition regarding parenting time. Judge Burnett recused himself at the mother’s request, and the case was heard by Judge Daryl A. Colson.
At the hearing, the mother observed Judge Burnett’s assistant sitting near Judge Colson and talking to him. Even though she felt worried, she took no action to recuse Judge Colson at that time.
Judge Colson continued to preside over the case, but the following year, the wife had a conversation with a local attorney who informed her that Judge Colson was “tight” with the other judge’s assistant. She also learned of a Facebook post in which Judge Colson had endorsed Judge Burnett. Based upon this information, she filed a motion to recuse Judge Colson.
Judge Colson denied the motion on the grounds that his endorsement of the fitness of another judge had no bearing on the case. He found the allegation that he was “tight” with the assistant to be unfounded.
The wife then appealed to the Tennessee Court of Appeals, which noted that it reviewed such cases de novo, with no presumption of correctness. But the party seeking recusal bears the burden of proof. The mother argued that the assistant’s standing near the judge was inappropriate.
The appeals court pointed out that this conduct took place more than a year before the wife filed her recusal petition. It found that this delay meant that the wife did not promptly bring the issue to the judge’s attention. It also pointed out that a court employee standing near or talking to a judge is hardly inappropriate.
As to the allegation of the Judge being “tight” with the employee, the appeals court stated that it was unclear what this meant. The wife had the burden of proof on this issue, and she was required to come forward with evidence that would prompt a reasonable person to question the judge’s impartiality.
The appeals court also pointed out that the rules of judicial conduct clearly allow judges to endorse another judge, so the Facebook post was a non-issue.
For this reason, the Court of Appeals affirmed. The husband requested the court to find that the appeal was frivolous, but it declined to do so. However, it did tax the costs of appeal against the wife.
No. E2022-01518-COA-T10B-CV (Tenn. Ct. App. Dec. 1, 2022).
See original opinion for exact language. Legal citations omitted.
To learn more, see The Tennessee Divorce Process: How Divorces Work Start to Finish.
