Williams v. Viswanathan

65 S.W.3d 685, 2001 WL 23151
CourtCourt of Appeals of Texas
DecidedJanuary 8, 2001
Docket07-00-0414-CV
StatusPublished
Cited by26 cases

This text of 65 S.W.3d 685 (Williams v. Viswanathan) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Williams v. Viswanathan, 65 S.W.3d 685, 2001 WL 23151 (Tex. Ct. App. 2001).

Opinions

ON APPELLANTS’ DISQUALIFICATION AND RECUSAL MOTION

BOYD, Chief Justice.

Appellants have filed a motion seeking to disqualify Justice Phil Johnson and to recuse Justice Brian Quinn. Texas Rule of Civil Procedure 18b lists the reasons why a judge, which we assume would include an appellate justice, should disqualify himself or herself from participation in a pending matter, as well as the reasons why such a judge or justice should recuse himself or herself in a pending matter.

[687]*687Texas Rule of Appellate Procedure 16 deals particularly -with appellate judges and includes the procedure by which motions such as this may be determined.

Justice Phil Johnson

Justice Johnson agrees that he is disqualified to participate in the determination of this cause because of his prior involvement as an attorney in this case at the trial court level. Accordingly, no further discussion of appellants’ motion in that regard is necessary.

Justice Brian Quinn

Section 16.3 is the portion of Tex.R.App. P. 16 that prescribes the procedure for presenting motions seeking to recuse a sitting justice. Subsection (b) of that section provides that subsequent to the filing of a recusal motion, and before proceeding any further in the case, the challenged justice or judge must “either remove himself or herself from all participation in the case or certify the matter to the entire court, which will decide the motion by a majority of the remaining judges sitting en banc.” Tex.R.App. P. 16.3(b). Thus, a motion to recuse simply initiates a more formal process of consideration. Justice Quinn has certified the reasons why he does not believe he should recuse himself to the two members of the court who are not the subjects of the recusal motion and has stated in some detail his reasons for doing so. It now becomes our duty to decide the motion.

Appellants initially seek Justice Quinn’s recusal pursuant to the Tex.R. Civ. P. 18b(2) mandate that a judge shall re-cuse himself in any proceeding in which his impartiality might reasonably be questioned. The gist of appellants’ initial challenge to Justice Quinn is that appellants’ attorney unsuccessfully challenged him in the 2000 Republican primary and that appellants “not only did not contribute to Justice Quinn’s campaign, but also vigorously campaigned for his opponent who was at the time and remains now, the undersigned counsel.” They also point out that “[sjeveral hundred dollars of the monies collected and expended on Justice Quinn’s behalf came from the law firm representing Dr. Viswanathan.” Thus, they conclude, “[a] reasonable member of the public at large, knowing all the facts in the public domain would doubt that Justice Quinn could be impartial in these proceedings.”

In considering this initial argument, we first note that appellants do not present any grounds for constitutional or rule-based disqualification in regard to Justice Quinn. See Tex. Const. art. V, § 11; Tex.R.App. P. 16.1. We also note that it is the duty of a judge or justice to sit and decide matters brought before the court upon which the judge or justice serves. Sun Oil Co. v. Whitaker, 483 S.W.2d 808, 823-24 (Tex.1972); Tex.Code Jud. Conduct, Canon 3(B)(1), reprinted, in Tex. Gov’t Code Ann., tit. 2, subtit. G app. B (Vernon Supp.2000). It has been well said that “[t]here is as much obligation for a judge not to recuse when there is no occasion for him to do so as there is for him to do so when there is.” U.S. v. Burger, 964 F.2d 1065, 1070 (10th Cir. 1992), cert. denied, 507 U.S. 1033, 113 S.Ct. 1854, 123 L.Ed.2d 477 (1993) (quoting Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir.1987)).

Texas Rule of Civil Procedure 18b(2)(a) provides that a judge shall recuse himself or herself in any proceeding in which “his impartiality might reasonably be questioned.” The provision furnishes the basis upon which movants seek to recuse Justice Quinn. The challenge presented by mov-ants is a direct result of the system for selection of judges which has long been [688]*688utilized in this state, namely a “no holds barred” partisan election. There are relatively few active judges in this state who have not at one time or another gone through a contested election. This is particularly true of our two highest courts. If a per se rule existed that a sitting judge should recuse merely because a lawyer who unsuccessfully ran against that judge or a supporter of that challenger represents a litigant before that sitting judge, the efficiency of our judicial system would be seriously compromised. We do not believe that, without more, a mere allegation that a litigant’s lawyer entered the elective process and that the litigant supported his lawyer’s efforts is sufficient to show that a reasonable person might doubt a sitting justice’s ability to be impartial.

It is virtually impossible to articulate a bright line test that would govern instances such as this. Of necessity, the determination whether recusal is necessary must be made on a case-by-case fact-intensive basis. There is a paucity of relevant Texas authority to aid us in our decision. However, four justices of the federal supreme court, in interpreting a statutory requirement similar to that contained in our rule, opined that a reasonable question as to a justice’s impartiality “is triggered by an attitude or state of mind so resistant to fair and dispassionate inquiry as to cause a party, the public, or a reviewing court to have reasonable grounds to question the neutral and objective character of a judge’s rulings or findings.” Liteky v. U.S., 510 U.S. 540, 556, 114 S.Ct. 1147, 1158, 127 L.Ed.2d 474 (1994) (Kennedy, J., concurring, joined by Blackmun, Stevens, and Souter, JJ.).

As we have noted, even though there is very little helpful Texas authority, we have found the approach of former El Paso Court of Appeals Chief Justice Max Osborn in his concurring opinion in Aguilar v. Anderson, 855 S.W.2d 799 (Tex.App.—El Paso 1993, writ denied) most helpful. In that case, with reference to the Tex.R. Civ. P. 18b(2)(a) impartiality provision, Justice Osborn opined, “[a]fter all [,] the impartial standard has been adopted in order that the public, ie., the person on the street, might have confidence in the judiciary and to protect judges from unjustified complaints about their being partial in their decision.” Id. at 804-05. We agree with that reasoning. See Lueg v. Lueg, 976 S.W.2d 308, 310 (Tex.App.—Corpus Christi 1998, pet. denied).

We also agree with Chief Justice Osborn that a reasonable person must be aware of the facts surrounding our judiciary and must know that our judges have to stand for election on a regular basis, that elections cost money, and that money must be raised to conduct an effective campaign. Aguilar, 855 S.W.2d at 805.

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Bluebook (online)
65 S.W.3d 685, 2001 WL 23151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-viswanathan-texapp-2001.