                     IN THE SUPREME COURT OF TENNESSEE
                                AT KNOXVILLE

       JEANIE HOLSCLAW v. IVY HALL NURSING HOME, INC.
                               Circuit Court for Carter County
                                         No. C12784
                               ____________________________

               No. E2016-02178-SC-T10B-CV – Filed September 19, 2017
                           ____________________________


ROGER A. PAGE, J., dissenting:


       I maintain that the Court of Appeals properly concluded that recusal was necessary
in this case. While I adhere to the position expressed by both the appellate court’s
majority and concurring opinions that “[n]othing in the record on appeal leads this Court
to believe that the trial judge holds a prejudice or bias against any party or that the trial
judge cannot remain impartial despite this communication,” Holsclaw v. Ivy Hall Nursing
Home, Inc., No. E2016-02178-COA-T10B-CV, 2016 WL 7364901, at *8 (Tenn. Ct. App.
Dec. 19, 2016), perm. app. granted (Tenn. Feb. 17, 2017), I nonetheless perceive an
appearance of impropriety that is expressly disfavored by the Canons of Judicial
Conduct, see Tenn. Sup. Ct. R. 10, Canon 1.2 (“A judge shall act at all times in a manner
that promotes public confidence in the independence, integrity, and impartiality of the
judiciary, and shall avoid impropriety and the appearance of impropriety.”). Therefore, I
respectfully disagree with the decision of the majority of this Court that recusal is
unnecessary.

        In the trial court, the defendant filed a motion for the plaintiff to be examined by a
certified rehabilitation counselor (“CRC”) pursuant to Rule 35.01 of the Tennessee Rules
of Civil Procedure. In it, the defendant “asserted that a CRC would be able to ‘testify
about the availability of alternative job opportunities in a particular labor market[.]’” In
opposition, the plaintiff argued “that a CRC could not testify as to the ‘availability of
alternative job opportunities in the particular labor market[.]’” The trial court then
telephoned Dr. Wayne Mulkey, the director of the rehabilitation counselor program at the
University of Tennessee.1 At the next motions hearing in this case, the trial court stated
as follows:

       1
        The majority succinctly summarized the procedural posture of the case at the time the ex parte
communication occurred and correctly quoted the trial court’s explanation of the telephone call.
        He just kind of filled me in on what the program, the certification is, what
        these guys do and don’t do, you know, enough for me to at least conclude
        that this is the type of certification for a person that I might let testify as an
        expert.

        So I understand that what this person might or might not be able to testify
        to is also going to be limited by what their background, education, and so
        forth is.


The defendant subsequently filed a motion to recuse, stating that “[b]efore trial, the
[c]ourt will have to decide the admissibility of Ivy Hall’s expert’s testimony and, during
trial, the [c]ourt will have to rule upon objections related to the subject matter.” The
defendant also submitted that “[t]he [c]ourt ha[d] acquired information from an extra-
judicial source that is not available to the parties and [could] not be subjected to scrutiny
in the adversarial process.” As such, argued the defendant, the trial court should have
recused itself because “(a) the court did not constrain itself to consideration of the facts
presented by the parties; (b) the court conducted an independent investigation; and (c) the
[c]ourt acquired knowledge from an extrajudicial source.” Indeed, the qualifications of a
CRC and his/her expertise on the issue of alternative job opportunities in the appellee’s
labor market were issues of disputed fact between the parties.2

       The Tennessee Code of Judicial Conduct states that “[a] judge shall disqualify
himself or herself in any proceeding in which the judge’s impartiality might reasonably
be questioned[.]” Tenn. Sup. Ct. R. 10, Canon 2.11(A). This Court reviews a trial
judge’s decision on a motion to recuse de novo with no presumption of correctness.
Tenn. Sup. Ct. R. 10B, § 2.06.

       Regardless of her motive, the trial judge undertook an independent investigation of
disputed facts by telephoning the director of the program at the University of Tennessee
and inquiring about credentials of CRCs, contrary to the Code of Judicial Conduct. Id. at
Canon 2.9(C) (“A judge shall not investigate facts in a matter independently[] and shall
consider only the evidence presented and any facts that may properly be judicially
noticed.”). The majority acknowledges that the trial judge’s actions constituted ex parte
communications and an independent investigation. This is exacerbated by the fact that


        2
          The majority relies on the definition of “personal knowledge” in deciding that the trial judge’s
actions were permissible. See Tenn. Sup. Ct. R. 10, Canon 2.11(A)(1) (noting a violation of the canon
when “[t]he judge has . . . personal knowledge of facts that are in dispute in the proceeding” (emphasis
added)). While I agree with the majority’s thorough explanation of the term “personal knowledge,” I
nonetheless maintain that the scenario in this case creates an appearance of impropriety.



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the conversation was held off the record, and the parties did not know the full content of
exactly what was said. As noted by Judge Dinkins’ concurring opinion, by engaging in
ex parte communications with the professor “without the knowledge or consent of the
parties, the court was not only denied the opportunity to create a record of the purpose for
the call prior to it being made, but the parties were denied the opportunity to preserve an
objection.” Holsclaw, 2016 WL 7364901, at *9 (Dinkins, J., concurring).

        I agree with the majority that the record is devoid of any evidence of actual
partiality on the part of the trial judge. However, I disagree with the majority opinion’s
conclusion that the trial judge’s actions did not create an appearance of impropriety. As
noted by the Court of Appeals’ majority, “‘because perception is also important, a party
does not have to prove actual bias or prejudice’ in order to seek a judge’s recusal.”
Holsclaw, 2016 WL 7364901, at *8 (quoting Wilson v. Wilson, 987 S.W.2d 555, 562
(Tenn. Ct. App. 1998)); see also Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 564-65
(Tenn. 2001) (noting that recusal is appropriate “when a person of ordinary prudence in
the judge’s position, knowing all of the facts known to the judge, would find a reasonable
basis for questioning the judge’s impartiality” because “the appearance of bias is as
injurious to the integrity of the judicial system as actual bias” (citation and internal
quotation marks omitted)); Kinard v. Kinard, 986 S.W.2d 220, 228 (Tenn. Ct. App. 1998)
(stating that “the preservation of the public’s confidence in judicial neutrality requires not
only that the judge be impartial in fact, but also that the judge be perceived to be
impartial”). As this Court concluded in State v. Rimmer,

       A trial judge should recuse himself or herself whenever the judge has any
       doubt as to his or her ability to preside impartially or whenever his or her
       impartiality can reasonably be questioned. Pannell v. State, 71 S.W.3d
       720, 725 (Tenn. Crim. App. 2001). This is an objective standard. Alley [v.
       State], 882 S.W.2d [810,] [ ] 820 [(Tenn. 1994)]. The appearance of
       impropriety is conceptually distinct from the subjective approach of a judge
       facing a possible disqualification challenge and does not depend on the
       judge’s belief that he or she is acting properly. See Liteky v. United States,
       510 U.S. 540, 553, n.2 [ ] (1994) (“The judge does not have to be
       subjectively biased or prejudiced, so long as he appears to be so.”). “Thus,
       while a trial judge should grant a recusal whenever the judge has any
       doubts about his or her ability to preside impartially, recusal is also
       warranted when a person of ordinary prudence in the judge’s position,
       knowing all of the facts known to the judge, would find a reasonable basis
       for questioning the judge’s impartiality.” Id.

250 S.W.3d 12, 38 (Tenn. 2008) (emphasis added).

      Based on the facts as outlined in the majority opinion, I believe this is a situation
where impartiality might reasonably be questioned. Moreover, the trial court’s allowing


                                              3
Mr. Smith, the expert requested by the defendant, to examine the plaintiff does not
alleviate the perception of impropriety created by her contacting an outside source ex
parte and off the record.

        While I acknowledge that the question of recusal is close, I have concluded that a
line was crossed in this case and that the conduct in question created an appearance of
impropriety. I have also concluded that communication of the type in this case wherein a
trial judge has an off-the-record ex parte discussion with an individual whose advice
could have potential impact on the trial court’s decision-making process would, in most
cases, create an appearance of impropriety.3 Therefore, the trial judge should have
recused herself.

       For these reasons, I agree with the conclusion reached by the Court of Appeals in
this case.


                                                        ______________________________
                                                        ROGER A. PAGE, JUSTICE




        3
            It is certainly acceptable for a trial court to consult with an expert. Tenn. Sup. Ct. R. 10,
Canon 2.9(A)(2)(“A judge may obtain the advice of a disinterested expert on the law applicable to a
proceeding before the judge, if the judge gives notice to the parties of the person consulted and the
substance of the advice, and affords the parties a reasonable opportunity to respond to the advice
received.”). However, this should be done on the record and with notice to and participation by the
parties. The manner in which the contact was made in this case leaves an appearance of impropriety. I
also note that the professor with whom the trial judge spoke was not an expert on the law.



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