                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1492
                               Filed August 1, 2018


DIANA VERDUGHT,
     Plaintiff-Appellant,

vs.

LEE COUNTY, IOWA,
     Defendant-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Lee (South) County, Michael J.

Schilling, Judge.



       A plaintiff appeals the district court judge’s denial of a motion for recusal.

AFFIRMED.



       Curtis R. Dial of Law Office of Curtis Dial, Keokuk, for appellant.

       Steven E. Ort of Bell, Ort & Liechty, New London, for appellee.



       Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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MCDONALD, Judge.

       The question presented in this appeal is whether the district court judge

abused his discretion in failing to recuse or disqualify himself from presiding over

a civil jury trial. In determining whether recusal is necessary in any particular case,

“the burden of showing grounds for recusal is on the party seeking recusal.” State

v. Haskins, 573 N.W.2d 39, 44 (Iowa Ct. App. 1997). “This burden is substantial[,]

and we will not overturn the trial judge’s decision absent an abuse of discretion.”

Id. To show an abuse of discretion, a party must demonstrate the judge exercised

his discretion “on grounds or for reasons clearly untenable or to an extent clearly

unreasonable.” In re Estate of Olson, 479 N.W.2d 610, 613 (Iowa Ct. App.1991)

(quoting State v. Blackwell, 238 N.W.2d 131, 138 (Iowa 1976)).

       The record reflects Diana Verdught filed this suit against Lee County, Iowa,

in September 2015. In her petition, she asserted the following claims against the

county:    (1) “wrongful discharge from employment/retaliatory discharge by

constructive discharge;” (2) “violation of whistle blower statute;” (3) retaliatory

hostile work environment; and (4) hostile work environment based on her sex. The

matter came on for trial in August 2017. At the time of trial, the district court judge

disclosed to the parties information that might be relevant to a motion for

disqualification.

              I would like to begin with, Iowa Rule 51:2.11 and 5 says that,
       quote, 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.
              So based upon that comment, I want to make it clear for the
       record a couple things.
              Number one, my wife works for Lee County, Iowa, in the
       Public Health Department.
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               Second, I know—I know Mr. Buckley [a supervisor in plaintiff’s
       department], and I’ve met him a time or two in connection with my
       wife’s employment. I have no social relationship with Mr. Buckley,
       past or present, neither does my wife, other than the fact that they
       may have had contact with each other in connection with their
       employment with Lee County.
               Next, I do know, have met, the members of the Lee County
       Board of Supervisors. I’ve met them in my capacity as a judge
       because I’ve sworn in the sheriff and deputy sheriffs for Lee County,
       Iowa, on three or four occasions. I’ve also sworn in members of the
       Board of Supervisors. I have no ongoing past or present social
       relationship with any members of the Lee County Board of
       Supervisors, and, of course, in my capacity as a judge, I know other
       members of the—or in employment with Lee County, including the
       Lee County attorney, the assistant Lee County attorney—attorneys,
       I should say. I also know Denise Fraise, who has—I think she might
       be the auditor. I’ve had dealings with her both in my capacity as a
       judge, and she’s the one that calls me to swear in Lee County
       officials when I’m asked to do that. I’ve also met her at the Lee
       County office building in Fort Madison when the election results for
       the bond referendum for the public health building were announced.
               I have no past or present social relationship with any of the
       individuals that I’ve mentioned, other than my wife, of course.
               So if any of you want to discuss what I said outside my
       presence, you have the right to do so. If you feel that you want to
       make a further record about what I just said, feel free to. We can
       take a recess, and you can discuss it in private.

       After the judge disclosed this information to the parties, plaintiff’s counsel

and Verdught discussed the issue outside the presence of the district court judge.

Verdught subsequently requested the district court judge disqualify himself

because of a conflict of interest. Defense counsel had no objection to the judge

presiding over the trial. The district court judge denied the request, stating as

follows:

                THE COURT: The request that the Court recuse or disqualify
       itself is denied, and I’ll explain my reasons.
                I’ve carefully reviewed a couple times today Rule 51:2.11,
       which sets forth the specific circumstances under which it’s
       mandatory that a judge disqualify himself or herself, and there’s been
       no suggestion made by the plaintiff that any of those apply. In
       looking them over, I don’t think any of those apply. The comment to
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       the rule says: Under this rule a judge is disqualified whenever the
       judge’s impartiality might reasonably be questioned, regardless of
       whether any of the specific provisions of Paragraphs (A)(1) through
       5 apply.
               I suppose the key word there is might reasonably be
       questioned, and, Mr. Dial [Verdught’s counsel], as I understand it,
       the basis for your concern is the fact that my spouse is an employee
       of Lee County, Iowa; is that—is that the basis of your concern?
               MR. DIAL: Yes, Your Honor.
               THE COURT: Okay. I’m not sure how many people are
       employed by Lee County, Iowa, but my wife is not an employee of a
       particular—this was a conservation board or conservation office
       issue. She’s not an employee of that office, and I don’t see how a
       verdict for or against the defendant in this case would have any
       impact—economic impact on her. I don’t—I just don’t think there’s a
       fair basis for concluding that the Court’s impartiality can reasonably
       be questioned in this case under those circumstances. I think the
       connection between my spouse and the facts and circumstances of
       this case are just too tenuous to make that a basis for disqualification,
       so I’m going to overrule that. Any other record you want to make on
       that, Mr. Dial?
               Let me—before I—let me also add, this is the day that the trial
       is scheduled to start, and this case was filed on September 11, 2015;
       in other words, it’s two weeks shy of being two years old. Both
       parties deserve a resolution of the case. It’s been scheduled for jury
       trial before and continued. It’s been to the Appellate Court once, and
       it’s time to get the case resolved. We also are short one judge in this
       district. We also have at least one judge on vacation. Whether it’s
       even possible to get another judge to hear this case this week, I’m
       not certain. I want to add that to the record, because I think that’s a
       consideration. Those things are a consideration as well.

       The matter proceeded to trial, the jury found in favor of Lee County, and the

district court judge entered judgment in favor of the county. The plaintiff timely

filed this appeal.

       We cannot conclude the plaintiff carried her substantial burden of

establishing the district court judge abused his discretion in denying the

disqualification motion. The relevant standards for recusal are set forth in the Iowa

Code of Judicial Conduct. “A judge shall uphold and apply the law, and shall

perform all duties of judicial office fairly and impartially.” Iowa Code of Judicial
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Conduct R. 51:2.2.    The Iowa Code of Judicial Conduct enumerates certain

circumstances in which the judge must recuse himself. See Iowa Code of Judicial

Conduct R. 51:2.11(A)(1)–(6). One such circumstance is when the “judge has a

personal bias or prejudice concerning a party or a party’s lawyer, or personal

knowledge of facts that are in dispute in the proceeding.” Iowa Code of Judicial

Conduct R. 51:2.11(A)(1).    The enumerated circumstances are nonexclusive,

however, and the “judge shall disqualify himself or herself in any proceeding in

which the judge’s impartiality might reasonably be questioned . . . .” Iowa Code of

Judicial Conduct R. 51:2.11(A).

      Here, there is no actual conflict of interest requiring recusal under the Code

of Judicial Conduct. See Iowa Code of Judicial Conduct R. (A)(1)–(6). Nor are

there any facts present in which the district court judge’s impartiality might

reasonably be questioned. See Iowa Code of Judicial Conduct R. 51:2.11 cmt. 1.

As the district court judge noted, while his spouse was employed by the county,

his spouse was not employed in the same agency as the plaintiff or the relevant

witnesses. The plaintiff was employed in the Conservation Department. The

judge’s spouse worked in the Health Department. The district court judge stated

he did not have any personal knowledge of the facts and circumstances of the

case. The mere fact the judge’s spouse was employed by the county does not

give rise to any reason to believe a verdict entered against the county would have

had any consequences, financial or otherwise, for the judge’s spouse or the judge.

See, e.g., Ex parte James, No. 1950241, 1997 WL 35021641, at *2 (Ala. Jan. 10,

1997) (denying recusal motion where judge’s spouse was employed by

government entity, government entity was a party, and there was no reason to
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believe the litigation would have any financial impact on the judge’s spouse or the

judge), vacated on other grounds, No. 1950241, 2001 WL 36647064 (Ala. June

29, 2001); State v. Putnam, 675 A.2d 422, 424–25 (Vt. 1996) (stating there is no

per se rule requiring recusal “where a spouse or other relative is employed by, or

is otherwise aligned with, a party appearing before the judge” and citing cases).

       In addition, the judge has the duty to decide. The judge is duty-bound to

“hear and decide matters assigned to the judge, except when disqualification is

required by rule 2.11 or other law.” Iowa Code of Judicial Conduct R. 51:2.7.

              Judges must be available to decide the matters that come
       before the court. Although there are times when disqualification is
       necessary to protect the rights of litigants and preserve public
       confidence in the independence, integrity, and impartiality of the
       judiciary, judges must be available to decide matters that come
       before the courts. Unwarranted disqualification may bring public
       disfavor to the court and to the judge personally.

Id. at 51:2.7 cmt. 1. It has thus been observed that mere speculation of partiality

is not sufficient; “[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.” Hinman

v. Rogers, 831 F.2d 937, 939 (10th Cir.1987).

       In this case, the district court judge appropriately considered his duty to

decide the case. The district court judge noted judicial resources in the district

court were limited because there was a judicial vacancy and another judge was

unavailable. The district court judge noted the case had been pending for a

significant period and the matter should be tried without further delay. These

considerations support the denial of the motion.        See, e.g., United States v.

Snyder, 235 F.3d 42, 46 (1st Cir. 2000) (noting an erroneous recusal may be

prejudicial in some circumstances and that “the unnecessary transfer of a case
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from one judge to another is inherently inefficient and delays the administration of

justice”); Camacho v. Autoridad de Telefonos de Puerto Rico, 868 F.2d 482, 491

(1st Cir. 1989) (noting that the judicial system would be “paralyzed” were standards

for recusal too low).

       Finally, the plaintiff has not established prejudice.        “Before recusal is

necessary, actual prejudice must be shown.” State v. Biddle, 652 N.W.2d 191,

198 (Iowa 2002). This matter was tried to a jury, and the jury returned a verdict in

the defendant’s favor. The plaintiff has not identified any ruling or other action of

the judge that prejudiced the plaintiff’s ability to fairly present her case to the jury.

Indeed, the plaintiff does not even allege prejudice.         The mere allegation of

impropriety without a showing of prejudice is not sufficient to merit reversal. See

In re A.B., 445 N.W.2d 783, 784 (Iowa 1989).

       The district court judge in this case appropriately disclosed on the record

information the judge believed the parties or their lawyers might reasonably

consider relevant to a possible motion for disqualification even though the judge

believed there was no basis for disqualification. The judge appropriately allowed

the parties to discuss the matter outside the judge’s presence and then make a

record on the issue. The judge heard from the plaintiff’s lawyer on the request for

disqualification. Ultimately, the judge denied the motion on the ground there was

no conflict of interest and no appearance of impropriety. In addition, the exigencies

of the situation demanded the judge preside over the case. This decision was

committed to the sound discretion of the judge. The plaintiff has not established
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the district court judge’s reasons for denying the motion were unreasonable,

untenable, or otherwise an abuse of the judge’s considerable discretion.

      AFFIRMED.
