Monroe v. Blackmon

OPINION

CHAVEZ, Justice.

By the present mandamus proceeding, re-lators, Jeffrey and Gena Monroe, complain that the respondent, Judge Robert Black-mon, abused his discretion in failing to re-cuse a trial Judge, the Honorable Max Bennett, from presiding over the underlying lawsuit. The basis of the sought recusal is that Judge Bennett is represented in another matter, currently before the Supreme Court of Texas, by counsel for a defendant in the underlying cause. The real party in interest is Union Pacific Resources Company (“Union Pacific”), a defendant in the underlying lawsuit. We conditionally grant the writ.

We are guided by a paucity of reported Texas decisions addressing the narrow issue raised by this proceeding: Is recusal required of a trial judge when an attorney for a party to a proceeding in the judge’s court is concurrently representing the judge as attorney of record before another tribunal? We determine that recusal is the singular appropriate response.

Facts

In 1994, relators filed the underlying lawsuit against Union Pacific and other defendants in Nueces County, Texas, and were assigned to the 319th District Court, over which Judge Bennett presides. The law firm of Hunt, Hermansen, McKibben & English, L.L.P. (“Hunt, Hermansen”) respresents Union Pacific in that cause. Meanwhile, the Hunt, Hermansen firm also represents Judge *535Bennett in a mandamus proceeding in the supreme court, Bennett v. Thirteenth Court of Appeals, No. 96-0598.2

On September 23, 1996, relators filed a motion a recuse Judge Bennett in the underlying cause, arguing that Judge Bennett’s representation by the Hunt, Hermansen firm caused his impartiality to reasonably be questioned. Judge Bennett referred the motion to recuse and the presiding judge for the administrative judicial region appointed Judge Blackmon to hear it. At the recusal hearing on October 29, 1996, Judge Bennett called himself as a witness, and then testified about the origins and nature of his relations with attorney Carlos Villarreal of the Hunt, Hermansen firm.

On November 5, 1996, Judge Blackmon issued his “Order on Motion to Recuse,” which stated:

[I]t appears from the evidence that an attorney-client relationship exists between Mr. Villarreal and Judge Bennett.
This Court is of the opinion that Plaintiff could reasonably question the Judge’s impartiality based on this relationship.
The recusal is, therefore, appropriate, and is ordered.

Judge Bennett’s response was immediate. In a letter to Judge Blackmon of the same date, and “[i]n view of your [i.e., Judge Blackmon’s] ruling,” Judge Bennett requested a rehearing of the recusal matter. Noteworthy is the fact that Judge Bennett did not challenge Judge Blackmon’s conduct of the recusal hearing until after the court issued its order, approximately one week after the initial recusal hearing.

On November 7, 1996, Judge Blackmon forwarded a letter to all parties and Judge Bennett, stating that a rehearing was scheduled for November 15, 1996, “at the Judge’s request.” We consider Judge Bennett’s letter to Judge Blackmon to have been in the nature of a pleading, insofar as rehearing of the recusal matter was responsive thereto.

At the rehearing, the appearance of attorney Villarreal of the Hunt, Hermansen firm engendered some initial confusion as to precisely who he was representing (Judge Bennett or one of the defendants?). Judge Bennett again called himself as a witness, testifying at length and being cross-examined by the parties. Judge Bennett also gave an oral argument, just as the parties did, at the close of the hearing. Judge Bennett even offered exhibits, consisting of his orders underlying the matter in which the Hunt, Hermansen firm represents him.

On November 18,1996, the court issued its order following the rehearing, denying the motion to recuse, providing that “Judge Bennett’s impartiality cannot reasonably be questioned under the circumstances.” We find it curious that a different result obtained on rehearing, although a near identity of evidence and core arguments existed as between the two recusal hearings. No new findings of fact were made, and there exists no apparent justification for Judge Black-mon’s change of position.

Standard for issuance of writ

Mandamus is proper (1) to correct a clear abuse of discretion committed by the trial court, (2) when there exists no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992); Discovery Operating, Inc. v. Baskin, 855 S.W.2d 884, 885 (Tex.App.—El Paso 1993, orig. proceeding) (conditionally granting writ on relator’s claim of mandatory recusal of trial judge).

Availability of adequate remedy on appeal

We must determine whether an adequate remedy exists on appeal. See *536Schwartz v. Jefferson, 930 S.W.2d 957, 959 (Tex.App.—Houston [14th Dist.] 1996 orig. proceeding). Rule 18a(f) of the Texas Rides of Civil Procedure provides: “If the motion [to recuse or disqualify] is denied, it may be reviewed for abuse of discretion on appeal from the final judgment.” Obviously, an appellate remedy exists for relators, so we consider whether the appeal allowed under Rule 18a(f) would be “adequate.”

To demonstrate the absence of an adequate remedy on appeal, the relators must have suffered an effective denial of the reasonable opportunity to develop the merits of their case. See AMR Corp. v. Enlow, 926 S.W.2d 640, 645 (Tex.App.—Fort Worth 1996, orig. proceeding). The nonexistence of an adequate appellate remedy has been determined in analogous situations, wherein appeal from final judgment arguably exists. See, e.g., Mendoza v. Eighth Court of Appeals, 917 S.W.2d 787, 789-90 (Tex.1996); K.J. Eastwood Investments, Inc. v. Enlow, 923 S.W.2d 255 (Tex.App.—Fort Worth 1996, orig. proceeding); Sweezy Const., Inc. v. Murray, 915 S.W.2d 527, 530 (Tex.App.—Corpus Christi 1995, orig. proceeding). We have also held that the availability of other remedies will not prohibit mandamus to issue to correct a gross abuse of discretion. See Corpus Christi Caller-Times v. Mancias, 794 S.W.2d 852, 854 (Tex.App.—Corpus Christi 1990, orig. proceeding). Under the factual pattern (i.e., attorney for litigant concurrently representing trial judge) of the instant case, we determine that the harm engendered by Judge Blackmon’s second order will permeate all phases of proceedings in the trial court, thus precluding availability to relators of an adequate appellate remedy.

Clear abuse of discretion

Aside from the “clear abuse of discretion” threshold set forth in Walker, supra, the supreme court has also stated that mandamus will lie to correct a “gross” abuse of discretion by the trial court. State v. Sewell, 487 S.W.2d 716, 718 (Tex.1972). “The relator must establish, under the facts of the case, that the facts and law permit the trial court to make but one decision.” Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985). Put differently: “[A] clear abuse of discretion, when utilized as the basis for an original mandamus proceeding, refers to the unique situation wherein the lower court, exercising a ‘discretionary’ authority, has but one viable course to follow and one legitimate way to decide the question presented, but instead issues a contrary ruling.” Cessna Aircraft Co. v. Kirk, 702 S.W.2d 321, 323 (Tex.App.—Eastland 1986, orig. proceeding). Intervention by the appellate courts is justified when relators stand to lose substantial rights, or the ability to present their claim is vitiated or severely compromised. Walker, 827 S.W.2d at 842-43; Discovery, 855 S.W.2d at 885-86.

Accordingly, we assess the merits of relators’ claim to determine whether an abuse of discretion warranting mandamus relief has occurred.

Rule 18b(2)(a)

Rule 18b of the Texas Rules of Civil Procedure provides:

(2) Recusal. A judge shall recuse himself in any proceeding in which:
(a) his impartiality might reasonably be questioned; ...

Tex.R. Civ. P. 18b. We are called on to give meaning to this nebulous standard. Analogously, where doubt exists as to a judge’s pecuniary interest in a matter, doubt is resolved in favor of disqualification. Gulf Maritime Warehouse Co. v. Towers, 858 S.W.2d 556, 559 (Tex.App.—Beaumont 1993, writ denied). We resolve doubts raised by the Hunt, Hermansen firm’s representation of Judge Bennett in favor of recusal.

By favoring recusal under the instant facts, we do not take issue with the settled proposition that all judges have the duty to sit and decide matters before them unless there exists a basis for disqualification or recusal. See Rogers v. Bradley, 909 S.W.2d 872, 879 (Tex.1995); Kirby v. Chapman, 917 S.W.2d 902, 908 (Tex.App.—Fort Worth 1996, n.w.h.). However, when there exists a reasonable question — based on objective facts — as to a judge’s impartiality, recusal is mandated. Justices Gammage and Enoch suggest that, in determining whether recusal *537is required pursuant to Texas Rule of Civil Procedure 18b(2)(a), the proper inquiry is whether a reasonable member of the public at large, knowing all the facts in the public domain concerning the judge’s conduct, would have a reasonable doubt that the judge is actually impartial. Rogers, 909 S.W.2d at 874, 881.

In the instant case, instruments filed at the supreme court of this state, evidencing the Hunt, Hermansen firm’s representation of Judge Bennett, are clearly within the public domain. As lawyers, we belong to a profession bombarded by attention from the popular media, and we feel certain that a reasonable member of the public at large appreciates the sacrosanct duty of a law firm and its lawyers to their clients. Accordingly, given the fact that the sanctity of the attorney-client relation is of common knowledge, and assuming that a reasonable member of the public at large were apprised of all matters within the public domain, we can only conclude that reasonable doubts must exist as to Judge Bennett’s actual impartiality.

28 U.S.C. § 455

Congress has addressed the issue of recusal based on apparent impartiality by adding the following to Title 28, United States Code:

§ 455. Disqualification of justice, judge, or magistrate
(a) Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

28 U.S.C.A. § 455 (1988). Adopted prior to the adoption of Texas Rule of Civil Procedure 18b, the federal statute is identical in relevant part to the Texas rule, and therefore the statute is a benchmark for interpreting our rule. Under 28 U.S.C. § 455(a), representation of the judge by an attorney for a litigant mandates recusal in the litigant’s lawsuit. See, e.g., Potashnick v. Port City Const. Co., 609 F.2d 1101, 1110-12 (5th Cir.1980).

Authoritative commentary

Commentators, too, recognize that factual patterns similar to the instant case present persuasive grounds for recusal. See, e.g., 46 AmJur. 2d Judges § 166 (1994); Marcia G. Robeson, Annotation, Construction and Application of 28 USCS § Ii,55(a) Providing for Disqualification of Justice, Judge, Magistrate, or Referee in Bankruptcy in Any Proceeding in Which His Impartiality Might Reasonably Be Questioned, 40 A.L.R. Fed. 954, 962 (1978); see also William W. Kilgarlin and Jennifer Bruch, Disqualification and Recusal of Judges, 17 St. MARY’S L.J. 601, 639 (1986) (noting ethics committee opinion which states that a judge should recuse where attorney for a litigant is presently serving as trustee, with discretionary powers, of a trust in which the judge’s wife is a beneficiary).

Policy considerations

The real party in interest, Union Pacific, argues that, were this court to mandate recu-sal, an untoward precedent would obtain and our state’s judiciary would be left defenseless vis-a-vis lawsuits filed against them in their official capacity, in that the bar would be reluctant to undertake representation of the bench for fear of possible subsequent recusal or disqualification. We find this argument unpersuasive for two principal reasons: (1) if requested, the attorney general of this state must defend trial judges in such lawsuits,3 and (2) fear of possible subsequent recusal or disqualification can, in our view, only be motivated by the desire to forum-shop. The correct policy consideration in this regard is the promotion of objectively impartial tribunals, to which the concern expressed by the real party in interest is inapposite.

Discussion

Judge Blackmon initially decided this matter correctly, subsequently erring when he reversed his prior order. Judge Bennett apparently participated fully in the determination of the motion to recuse in the proceedings below, and this participation in the recusal matter was extraordinary. Judge Bennett’s opposition to the recusal motion aligned him with the defendants and against *538the plaintiffs in the underlying ease, destroying any reasonable appearances of impartiality.

Active participation by a challenged judge in recusal proceedings can only lead to the judge’s recusal. See generally Blanchard v. Krueger, 916 S.W.2d 15 (Tex.App.—Houston [1st Dist.] 1995, orig. proceeding). Contrary to the view expressed by Justice Dorsey that challenges to Judge Bennett founded on Rule 18b(2)(a) are unripe in the instant proceeding, we believe that Judge Blackmon should have sua sponte addressed the issue. Clearly, he was aware of the governing standard, as his order of November 5,1996, contains the standard’s talismanic language.

Judge Blackmon had but one viable course of action — to order Judge Bennett’s recusal. By withdrawing his initial order of recusal, Judge Blackmon grossly abused the discretion committed to him, warranting correction in the instant proceeding. Accordingly, the petition for writ of mandamus is conditionally granted to order respondent to vacate his order of November 18, 1996. We are confident that Judge Blackmon will act in accordance with this opinion. The writ will issue only in the event he fails to comply.

Dissenting opinion by DORSEY, J., joined by SEERDEN, C.J., and FEDERICO G. HINOJOSA, Jr., JJ. Concurring opinion by CHAPA, Chief Justice (Retired).

. The real party in interest in the instant proceeding, Union Pacific, has filed a conditional motion to recuse this court from determining this original proceeding. Union Pacific argues that this court’s impartiality might reasonably be questioned in view of Judge Bennett's suit against this court in the supreme court. We dismiss the motion.

Rule 15(c) of the Texas Rules of Appellate Procedure provides generally for an en banc determination of a motion to recuse an individual justice of the court of appeals. However, Union Pacific’s motion to recuse is not brought against any individual justice. There is no provision in Texas law for the collective recusal of an entire appellate court. Accordingly, we dismiss the motion as we have no jurisdiction to entertain Union Pacific's complaint.

. Tex. Gov’t Code Ann. § 74.141 (Vernon 1988).