               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                               Assigned March 25, 2015

                  JAMES R. COTHAM v. JUDY P. COTHAM

        Interlocutory Appeal from the Chancery Court for Decatur County
                  No. 4007    Carma Dennis McGee, Chancellor


              No. W2015-00521-COA-T10B-CV – Filed March 30, 2015


This is a Rule 10B appeal of the denial of a petition for recusal. Appellant supported the
Chancellor‟s opponent in the August 2014 election and contends that her support of the
opponent provides cause for the Chancellor‟s recusal. The trial court denied Appellant‟s
motion to recuse, and Appellant filed this accelerated interlocutory appeal pursuant to
Rule 10B of the Rules of the Tennessee Supreme Court. We affirm.

Tenn. Sup. Ct. R. 10B Interlocutory Appeal as of Right; Judgment of the Chancery
                         Court Affirmed and Remanded

BRANDON O. GIBSON, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and KENNY ARMSTRONG, J., joined.

Douglas Thompson Bates, Centerville, Tennessee, for the appellant, Judy P. Cotham.

Stephen M. Milam, Lexington, Tennessee, for the appellee, James R. Cotham.

                                       OPINION

                                      Background

       James R. Cotham, Plaintiff/Appellee, sued Judy P. Cotham, Defendant/Appellant,
for divorce in Decatur County Chancery Court. Appellant‟s filings in this Court do not
indicate when the lawsuit was filed. On February 23, 2015, Appellant filed a “Motion for
This Court to Recuse Itself.” In that motion, Appellant alleged that she “campaigned
heavily” for the Decatur County Chancellor‟s (hereinafter “Chancellor”) opponent in the
recent election, presumably referring to the August 2014 election in the Twenty-Fourth
Judicial District. In support of her motion, Appellant submitted an affidavit asserting
that, during the contested election, Appellant “was involved in supporting” the
Chancellor‟s opponent. Appellant stated that she “publically met with” the Chancellor‟s
opponent at fundraisers and “toured him around [Decatur] County to introduce him to
potential voters.” Appellant further stated that her support for the Chancellor‟s opponent
was widely known, very public, and that she was very vocal in her support for the
opponent.

                                         Appeals under Rule 10B

        Rule 10B of the Tennessee Supreme Court Rules authorizes an aggrieved party to
file “an accelerated interlocutory appeal as of right” from an order denying a motion to
recuse or to disqualify the trial court judge.1 Tenn. Sup. Ct. R. 10B, § 2.01. The appeal is
effected by filing a “petition for recusal appeal” with the appropriate appellate court. Id.
at § 2.02. Under Rule 10B, the appellant must file, along with the petition, “copies of any
order or opinion and any other parts of the record necessary for determination of the
appeal.” Id. at § 2.03. The appellate court may order the other parties to answer the
appellant‟s petition and file any necessary documents, but it is also authorized to
adjudicate the appeal summarily, without an answer from other parties. Id. at § 2.05.
Having reviewed Appellant‟s petition and supporting documents, we have determined
that an answer and additional briefing are unnecessary, and we have elected to act
summarily on the appeal in accordance with Tenn. Sup. Ct. R. 10B, § 2.05. Oral
argument is likewise unnecessary.

                                                   Analysis

        The only issue before the Court in this appeal is whether the trial judge erred in
denying Appellant‟s motion to recuse. See McKenzie v. McKenzie, No. M2014-00010-
COA-T10B-CV, 2014 WL 575908, at *1 (Tenn. Ct. App. Feb. 11, 2014) (no perm. app.
filed). In accordance with Rule 10B, we review the trial court‟s recusal decision “upon a
de novo standard of review.” Tenn. Sup. Ct. R. 10B, § 2.06. The party seeking recusal
bears the burden of proof, and “any alleged bias must arise from extrajudicial sources and
not from events or observations during litigation of a case.” McKenzie, 2014 WL

1
    Section 2.01 provides:

           If the trial court judge enters an order denying a motion for the judge‟s disqualification or
           recusal, or for determination of constitutional or statutory incompetence, an accelerated
           interlocutory appeal as of right lies from the order. The failure to pursue an accelerated
           interlocutory appeal, however, does not constitute a waiver of the right to raise any issue
           concerning the trial court‟s ruling on the motion in an appeal as of right at the conclusion
           of the case. The accelerated interlocutory appeal or an appeal as of right at the
           conclusion of the case shall be the exclusive methods for seeking appellate review of any
           issue concerning the trial court‟s denial of a motion filed pursuant to this Rule.

Tenn. Sup. Ct. R. 10B, § 2.01
                                                        2
575908, at *3.
      Appellant argued that the trial judge was required to recuse herself under
Tennessee Supreme Court Rule 10, Canon 2, Rule 2.11. That Rule provides, in pertinent
part:

      A. A Judge shall disqualify himself or herself in any proceeding in which
      the judge‟s impartiality might reasonably be questioned, including but not
      limited to the following circumstances:
      ....
             (4) The judge knows or learns by means of a timely motion that a
         party, a party‟s lawyer, or the law firm of a party‟s lawyer has made
         contributions or given such support to the judge‟s campaign that the
         judge‟s impartiality might reasonably be questioned.

Tenn. Sup. Ct. R. 10, Canon 2, Rule 2.11. Comment 7 to the rule goes on to state:

      The fact that a lawyer in a proceeding, or a litigant, contributed to the
      judge‟s campaign, or supported the judge in his or her election does not of
      itself disqualify the judge. Absent other facts, campaign contributions
      within the limits of the “Campaign Contributions Limits Act of 1995,”
      Tennessee Code Annotated Title 2, Chapter 10, Part 3, or similar law
      should not result in disqualification. However, campaign contributions or
      support a judicial candidate receives may give rise to disqualification if the
      judge‟s impartiality might reasonably be questioned. In determining
      whether a judge‟s impartiality might reasonably be questioned for this
      reason, a judge should consider the following factors among others:
             (1) The level of support or contributions given, directly or indirectly,
      by a litigant in relation both to aggregate support (direct and indirect) for
      the individual judge‟s campaign and to the total amount spent by all
      candidates for that judgeship;
             (2) If the support is monetary, whether any distinction between
      direct contributions or independent expenditures bears on the
      disqualification question;
             (3) The timing of the support or contributions in relation to the case
      for which disqualification is sought; and
             (4) If the support or contributor is not a litigant, the relationship, if
      any, between the supporter or contributor and (i) any of the litigants, (ii) the
      issue before the court, (iii) the judicial candidate or opponent, and (iv) the
      total support received by the judicial candidate or opponent and the total
      support received by all candidates for that judgeship.

                                             3
Tenn. Sup. Ct. R. 10, Canon 2, Rule 2.11, cmt. 7.
        In this case, Appellant is not arguing that she was a supporter of or contributor to
the Chancellor‟s campaign. Rather, she is arguing the opposite. Appellant asserts that
she contributed to and supported the Chancellor‟s opponent and that her support of the
unsuccessful candidate warrants recusal. The Chancellor, in denying Appellant‟s motion
to recuse, noted that the Chancellor “had no knowledge of the identity of Mrs. Cotham
prior to her appearance in Court on January 6, 2015, and does not recall ever having seen
or heard of her before that time.” The order goes on to note, “[t]he election encompassed
a five-county district, of which Decatur County was the smallest in the number of
registered voters. The election was highly contested, with wide-spread support for both
candidates through the district.” The order also points out that the election occurred on
August 7, 2014, which was seven months prior to the hearing on Appellant‟s motion to
recuse.

        Even if a judge subjectively believes he or she can be fair and impartial, the judge
must still recuse himself or herself upon request whenever “„the judge‟s impartiality
might be reasonably questioned because the appearance of bias is as injurious to the
integrity of the judicial system as actual bias.‟” Smith v. State, 357 S.W.3d 322, 341
(Tenn. 2011) (quoting Bean v. Bailey, 280 S.W.3d 798, 805 (Tenn. 2009)). However, “a
judge should not decide to recuse unless a recusal is truly called for under the
circumstances.” Rose v. Cookeville Reg’l Med. Ctr., No. M2007-2368-COA-R3-CV,
2008 WL 2078056, *2 (Tenn. Ct. App. May 14, 2008).

        “The question of recusal on the basis of bias involves two inquiries. The first is
whether the judge has actual bias; the second is whether his or her impartiality might
reasonably be questioned, i.e., whether there may be an appearance of bias even though
no actual bias exists.” In re Bridgestone Corp., No. M2013-00637-COA-10B-CV, 2013
WL 1804084, at *2 (Tenn. Ct. App. 2013), perm. app. denied (Tenn. June 11, 2013). “A
trial judge should grant a recusal motion 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.‟” State v. Hester, 324 S.W.3d 1, 73 (Tenn.
2010) (quoting Bean v. Bailey, 280 S.W.3d 798, 805 (Tenn. 2009)). Recusal, however, is
not required in response to “spurious or vague charges of partiality.” Farm Credit Bank
of St. Paul v. Brakke, 512 N.W.2d 718, 721 (N.D. 1994).

       Appellant‟s affidavit does not assert that the Chancellor has any actual bias.
Rather, the crux of Appellant‟s motion to recuse is that there is an appearance of bias on
the part of the Chancellor. Appellant‟s affidavit in support of her motion to recuse only
asserts that she supported the Chancellor‟s opponent, that she publically met with him at
fundraisers, toured him around Decatur County to meet potential voters, displayed and
placed signs in support of the opponent, and was vocal in her support for the opponent.
                                             4
Appellant‟s affidavit asserts no facts whatsoever to indicate that the Chancellor‟s
impartiality “might reasonably be questioned” because of Appellant‟s support of the
Chancellor‟s opponent. She provides no basis upon which we could determine that her
support of the Chancellor‟s opponent was significant or disproportionate to other
participants in the election. Appellant‟s argument takes a leap that is not supported by
Rule 10. Appellant‟s support of the Chancellor‟s opponent in the smallest county of a
five-county judicial election, without more, would not cause a person of ordinary
prudence to jump to the conclusion that the Chancellor would be biased against her and
therefore does not require recusal.

                                      Conclusion

      The decision of the trial court is affirmed, and the cause is remanded for further
proceedings consistent with this Opinion. Costs on appeal are to be taxed to Appellant
Judy P. Cotham and her surety, for which execution may issue if necessary.



                                               _________________________________
                                               BRANDON O. GIBSON, JUDGE




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