Opinion
2016-SC-000699-MR
08-21-2018
PRESBYTERIAN CHURCH (U.S.A), Appellant v. Hon Brian C. EDWARDS, Judge Jefferson Circuit Court, Appellee and Rev. Eric Hoey, Real Party in Interest
ORDER DENYING MOTION TO RECUSE
Under the Code of Judicial Conduct, SCR 4.300 Rule 2.11(A), a judge or justice should recuse from deciding a case or participating in a decision when his or her impartiality might reasonably be questioned. The inquiry is an objective one, made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances. I disclosed on the record that my spouse, although not a lawyer in this matter, is a member of the law firm, Stoll Keenon Ogden PLLC, representing the Appellant, Presbyterian Church (U.S.A.). In response, Real Party in Interest, Rev. Eric Hoey, filed a motion to recuse, and the Church filed a reply. Having considered all pleadings and being otherwise sufficiently advised, I deny the motion to recuse.
Rules of the Supreme Court of Kentucky. When this motion was filed, the Kentucky Court of Justice, its judges and justices were governed by the then version of Kentucky’s Code of Judicial Conduct, which was based on the 1990 American Bar Association’s Model Code of Judicial Conduct and was adopted by the Kentucky Supreme Court in 1998. In February 2017, the Kentucky Supreme Court began the process of adopting a Code of Judicial Conduct based on the 2007 ABA Model Code. This process was completed in January 2018. Ky. S. Ct. Admin. Order 2018-04. Unless otherwise noted, references to the SCR 4.300 and the Code of Judicial Conduct are to the 2018 version.
I. Factual Background.
My spouse and I were married on August 5, 2017. Since being elected to the Supreme Court and taking office on January 2, 2017, I have entered approximately twenty Disclosure notices. To my knowledge, only four objections, including the present one, have been filed. The basis for Rev. Hoey’s motion is stated, as follows:
Prior to August 5, 2017, the Disclosures were of the fact of relationship or engagement, as appropriate.
After consultation with his client, counsel states his objection to the current posture of the case where Justice Laurance B. VanMeter is sitting on the case and his wife is a member of the law firm Stoll Kennon Ogden PLLC, counsel for the [Church]. Though the disclosure states that the Justice does not believe the foregoing forms a basis for his disqualification in the within styled action, nor that he would be influenced whatsoever by the fact that his spouse is a member of Stoll Keenon Ogden PLLC, the canons under SCR 4.300 would mandate that [Rev. Hoey’s] case be heard without the current arrangement of Justice VanMeter sitting and Stoll Keenon Ogden PLLC being counsel for the [Church], The integrity of the process
for litigants would be eroded by the appearance of impropriety. Counsel for [Rev. Hoey] believes that the current relationship between Justice VanMeter and [the Church’s] counsel would create that appearance. An ordinary citizen should believe that their [sic] case will be heard without any influence or prejudice or bias from any Justice.
As noted by the Church’s response, its counsel in this action practices in a large (by Kentucky standards), multistate law firm, based primarily in Kentucky, with offices in Louisville, Lexington, Frankfort, Hodgenville; Indiana offices in Indianapolis and Evansville; and an office in Pittsburgh, Pennsylvania. The firm consists of 143 attorneys, 65 of whom are equity members, including my spouse. The Church’s primary counsel in this case is John Sheller who practices in the firm’s Louisville office and who, as he represents, has been its counsel generally since 1993 and in the present matter since it was filed in Jefferson Circuit Court in June 2015. All other of the firm’s attorneys who have worked on this case have been resident in the firm’s Louisville office, and my spouse, who lives and works in Lexington, has had no involvement in the case.
I take judicial notice of the firm’s office locations from its website: https://www.skofirm.com/contact/offices/ (accessed 7 Nov. 2017). KRE 201.
Counsel Sheller avers that the firm’s representation of the Church is performed on an hourly basis, and no portion of the fee is contingent on the case’s outcome. He further states that my spouse will not benefit financially if the case is resolved favorably to the Church, nor suffer financial detriment if the case is resolved unfavorably to the Church. By supplemental response, he further states that my spouse presently is compensated on a fixed, annual salary.
II. Analysis.
The issue in this case, simply stated, is whether a justice’s or judge’s relationship to an attorney who is affiliated with a law firm representing a party in a case mandates the justice’s or judge’s recusal. Here, the relationship is spousal, but the rule could apply to other close familial relationships, e.g., parent/child, uncle or aunt/niece or nephew, siblings.
As noted above, "the inquiry under [Rule 2.11(A) ] ‘is an objective one, made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances." ’ Dean v. Bondurant, 193 S.W.3d 744, 746 (Ky. 2006) (quoting Microsoft Corp. v. United States, 530 U.S. 1301, 1302, 121 S.Ct. 25, 26, 147 L.Ed.2d 1048 (2000) ); see also Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 850, 108 S.Ct. 2194, 2197, 100 L.Ed.2d 855 (1988) (interpreting 28 U.S.C § 455(a) which mandates judicial disqualification "in any proceeding in which ... impartiality might reasonably be questioned" to be evaluated from the standpoint of "a reasonable person, knowing the relevant facts").
In Dean, Justice Roach discussed Canon 3(E)(1) of SCR 4.300 (1998) which is virtually identical to Rule 2.11(A) of SCR 4.300 (2018).
Rule 2.11(A) mandates judicial recusal "in any proceeding in which the judge's impartiality might reasonably be questioned[.]" The Rule further identifies a number of specific situations which require recusal. Comment [1] to Rule 2.11 states "[u]nder this rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless whether any of the specific provisions of paragraphs (A)(1) through (5) apply." The Comments further provide that "[a] judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification." The specific rules delineated under Rule 2.11(A) which may bear on the instant case are the following:
Rule 2.11 has other disqualifying scenarios, such as a judge’s personal bias or prejudice concerning a party or its lawyer, knowledge of disputed evidentiary facts, Rule 2.11(A)(1); a judge’s service as a lawyer in the matter, Rule 2.11(A)(2)(b); or a judge’s or household member’s interest, more than de minimis, in the subject matter or a party that could be substantially affected, Rule 2.11(A)(3). None of these scenarios are implicated in this matter. KRS 26A.015(2) contains virtually identical disqualifying situations as Rule 2.11(A). Arguably, a judge’s relative’s interest in a law firm participating in a case could be deemed an interest in the subject matter, but if so, the analysis would be similar, if not identical, to that under Rule 2.11 (A) (2) (c), infra.
(2) The judge knows[ ] that ... the judge's spouse ... is:
(a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party;
(b) acting as a lawyer in the proceeding;
(c) a person who has more than a de minimis* interest that could be substantially affected by the proceeding; or
(d) likely to be a material witness in the proceeding.
Three of the delineated provisions of Rule 2.11(A)(2) can be rejected out of hand as requiring my recusal in this case. My spouse is not a party to the case, nor an officer, director or trustee of a party; is not acting as a lawyer in the proceeding; and she is unlikely to be a material witness. Comment [4] to Rule 2.11 provides,
My spouse and I are both lifelong Episcopalians.
This interpretation of Canon 3E(1)(d)(ii) is supported by Jeffrey M. Shaman, Steven Lubet, James J. Alfini, Judicial Conduct and Ethics (3d ed., Charlottesville, VA, Lexis Law Publishing 2000) § 4.12 (stating "[d]isqualification may be required only if the relative-attorney is actually representing the party in a case before the judge. Therefore, if a relative ... is only affiliated with a law firm that represents a party in the case, disqualification is not specifically required under Canon 3E(1)(d)(ii)"). As noted, supra, n. 4, Rule 2.11 is virtually identical to former Canon 3E(1).
[4] The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not itself disqualify the judge. If, however, the judge's impartiality might reasonably be questioned under paragraph (A), or the relative is known by the judge to have an interest in the law firm that could be substantially affected by the proceeding under paragraph (A)(2)(c), the judge's disqualification is required.
(emphasis added). In other words, the fact that my spouse, a non-lawyer in this proceeding, is affiliated with Stoll Keenon Ogden PLLC does not per se mandate recusal. On the other hand, recusal may be required if she has an interest in the firm that could be substantially affected by the outcome of the proceeding. Rule 2.11(A)(2)(c). This issue and its analysis is related to, but slightly different than, her annual compensation.
No Kentucky Supreme Court decision has analyzed the extent to which a judge’s relative’s interest in a law firm would require disqualification, but other jurisdictions have done so. For example, the Michigan Supreme Court set forth a number of factors to be considered in making this determination:
The Court of Appeals decision in Abell v. Oliver, 117 S.W.3d 661 (Ky. App. 2003), requires recusal when a judge’s spouse is associated with a firm representing a party. Irrespective of the result reached, that, post-trial, the trial judge should have set aside the verdict, the reasoning behind Abell, and therefore the rule it announces, is questionable for three reasons. First, the majority opinion relied primarily on the per se disqualification set out in KRS 26A.015(2)(d) 2 and Canon 3E(1)(d)(ii) (requiring a judge to recuse if his/her spouse is acting as a lawyer). Second, the court bootstrapped a firm disqualification from SCR 3.130 (1.10(a) ), even though it expressly does not apply. And third, it misconstrued the plain language of the Commentary to Canon 3E(1) by restricting its meaning to support staff, secretaries and the like. 117 S.W.3d at 662-63.
When the Kentucky Supreme Court adopted the 1972 version of the ABA Model Code, it omitted the commentary to the rules. If it had so included, the comment to this rule stated, "[t]he fact that a lawyer in a proceeding is affiliated with a law firm with which a lawyerrelative of the judge is affiliated does not of itself disqualify a judge...." 1972 ABA Model Code of Judicial Conduct, Canon 3C(1)(d)(ii) Commentary (emphasis added). As noted, supra, the current Comments in SCR 4.300, as well as in both the 1990 and 2007 ABA Model Codes, replaces the word "lawyer-relative" with simply "relative." A reasoned explanation for this change is to include support staff, secretaries and the like, as well as lawyers, under the rule’s provisions, as opposed to limiting the rule’s meaning only to staff.
While the required recusal rule set out in Abell reflects an incorrect interpretation of Canon 3E, Abell does contain some useful lessons. The trial judge should have disclosed the relationship between her spouse and the plaintiff’s law firm and should have disclosed or permitted discovery into the relationship.
(1) the nature of the attorney's interest in the law firm; (2) whether that interest could be affected by the outcome of the case, and if so, whether it could be substantially affected; (3) the judge's knowledge regarding the attorney's interest in the firm. One primary concern is the financial remuneration which the judge's relative might receive. Closely related to direct financial remuneration are nonpecuniary benefits to the lawyer-relative's firm, such as enhanced reputation and increased good will that indirectly benefit the lawyer-relative.
Adair v. State, Dep't of Educ., 474 Mich. 1027, 1034-35, 709 N.W.2d 567, 574 (2006) (internal quotation and citation omitted); see also Archer Daniels Midland Co. v. Seven Up Bottling Co. of Jasper, Inc., 746 So.2d 966, 990-97 (Ala. 1999) (See, J., statement of nonrecusal) (declining to recuse in case involving 21 partner law firm based on determination that brother-in-law’s interest in law firm would not be substantially affected by the outcome of the case, and because no other grounds had been asserted for questioning impartiality, justice had constitutional duty to decide case). Federal decisions have looked at similar factors to determine if the judge’s relative’s interest is such that the judge should recuse. See, e.g., Pashaian v. Eccelston Props., Ltd., 88 F.3d 77, 83-84 (2d Cir. 1996) (rejecting per se recusal rule, instead looking at factors, such as number of partners, firm’s gross revenue, relative’s interest in firm’s net revenue, amount at stake in present case, and reputation of the firm and the significance of the present case to that reputation).
The justice in question requested and reviewed the firm’s information concerning (a) brother-in-law’s interest; (b) materiality of client to the firm; (c)-(d) effect of result of appeal on firm and brother-in-law’s interest in firm; (e)-(f) whether brother-in-law’s compensation would change as result of case; (g) number of firm’s cases before the court. 746 So.2d at 990.
In this instance, my spouse’s interest in the law firm representing the Church is 1% or less. The firm is compensated in this case on an hourly basis, win or lose. Her compensation is fixed on an annual basis. No likelihood appears to exist that herinterest will be affected by this case, let alone significantly affected. Thus, nothing in the record indicates that my spouse would receive significant remuneration from this case. Finally, any nonpecuniary benefits to the firm, such as enhanced reputation and increased goodwill that may indirectly benefit my spouse, would similarly appear to be minimal or nonexistent from this dispute involving issues arising from claims of ecclesiastical immunity which, to my knowledge, has received little to no publicity. I conclude, therefore, that my spouse does not "have a more than de minimis interest that could be substantially affected by the proceeding." Rule 2.11(A)(2)(c).
As to whether my impartiality might reasonably be questioned, again and as noted by Justice Roach, the inquiry under Rule 2.11 "is an objective one, made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances." Dean, 193 S.W.3d at 746 (internal quotation omitted). Two facts bear on this. First, of the Disclosures entered by me, approximately 80% have not been challenged, which indicates that the overwhelming majority of attorneys who received this Disclosure do not believe my impartiality might reasonably be questioned in this situation and have confidence in my objectivity and ability to apply the law fairly and evenly. Second, and although I have not kept a tally, in the past two years, I have voted with my colleagues in several cases against interests represented by my spouse’s firm.
Finally, an overarching consideration which must be mentioned is a judge’s obligation to decide. Canon 2 of SCR 4.300 (2018) sets forth rules governing a judge’s adjudicative responsibilities. Rule 2.7 provides that "[a] judge shall hear and decide matters assigned to the judge except when disqualification is required by Rule 2.7." Obviously, mandatory disqualification exists in some situations, but as noted by Chief Justice Rehnquist, unnecessary disqualification has a disproportionate negative impact on a jurisdiction’s highest court. Microsoft Corp., 530 U.S. at 1303, 121 S.Ct. at 26-27. Unlike the situation in the lower courts, a recused justice is not easily replaced; "[n]ot only is the Court deprived of the participation of one of its [seven] Members, but the even number of those remaining creates a risk of affirmance of a lower court decision by an equally divided court." Id., 530 U.S. at 1303, 121 S.Ct. at 27.
For example, no argument exists that if a spouse, or other close relative, is a lawyer in a case, a judge or justice must recuse. Rule 2.11(A)(2)(b).
Prior to 1999, the Kentucky Supreme Court had a policy in place that permitted the Chief Justice to appoint a special justice in the event one justice recused. See KRS 26A.015(3)(a) (permitting any judge or justice recused by the terms of KRS 26A.015 to be replaced by the Chief Justice). That policy, however, has been discontinued. Hodge v. Commonwealth , 17 S.W.3d 824 (Ky. 1999). If two or more justices recuse in a given case, the Kentucky Constitution authorizes the Governor to name sufficient special justices to constitute a full court to hear the case. Ky. Const. 110 (3).
In other words, absent good cause for recusal, judges have an obligation to remain on and decide a given case. Pessin v. Keeneland Ass'n, 274 F.Supp. 513, 514 (E.D. Ky. 1967) ; see Laird v. Tatum, 409 U.S. 824, 837, 93 S.Ct. 7, 15, 34 L.Ed.2d 50 (1972) (Rehnquist, J., noting that the court of appeals had unanimously concluded that judges have a duty to sit when not disqualified that is equally as strong as the duty not to sit when disqualified). "[W]here the standards governing disqualification have not been met, disqualification is not optional; rather, it is prohibited." In re Aguinda, 241 F.3d 194, 201 (2nd Cir. 2001) ; Adair, 474 Mich, at 1041, 709 N.W.2d at 579.
Over a now 24 year judicial career at all four levels of the Kentucky judiciary, I have had numerous occasions in which a case has appeared on the docket which may have been preferable to avoid—because of the parties, attorneys, or issues involved. The nature of being judge, however, is one does not get to select the cases which arise, and one has an obligation to decide. The rationale behind this obligation is expressed as follows:
Unwarranted disqualification may bring public disfavor to the court and to the judge personally. The dignity of the court, the judge’s respect for fulfillment of judicial duties, and a proper concern for the burdens that may be imposed upon the judge’s colleagues require that a judge not use disqualification to avoid cases that present difficult, controversial, or unpopular issues.
Rule 2.7, Comment [1].
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For the foregoing reasons, that my spouse does not have more than a de minimis interest that could be substantially affected by this proceeding, that no other grounds have been asserted for questioning my impartiality, and that I have an obligation to sit on and decide cases when recusal is not required, Rev. Eric Hoey’s motion for me to recuse is DENIED.
Pursuant to CR 76.38, Rev. Hoey has 10 days from the date of entry of this Order to file a motion for reconsideration.
/s/ Laurance B. VanMeter
Laurance B. VanMeter,
Justice
All concur.