Ball v. Melsur Corp.

• Citation: 633 A.2d 705,161 Vt. 35
• Decision Date: 24 September 1993
• Docket Number: No. 92-487,92-487
• Court: United States State Supreme Court of Vermont
• Parties: Albert L. BALL & Jeanette Ball v. MELSUR CORPORATION.

Page 705

633 A.2d 705

161 Vt. 35

Albert L. BALL & Jeanette Ball v. MELSUR CORPORATION.

No. 92-487.

Supreme Court of Vermont.

Sept. 24, 1993.

Frederick deG. Harlow and Martha Anne Wieler of Harlow Liccardi & Crawford, P.C., Rutland, for plaintiffs-appellees.

Sheilla C. Files and Douglas Richards of Richards & Files, P.C., Springfield, for defendant-appellant.

Before ALLEN, C.J., GIBSON and JOHNSON, JJ., and PECK, J. (Ret.), Specially Assigned.

ALLEN, Chief Justice.

Defendant Melsur Corporation appeals an adverse judgment in a personal injury case and seeks a new trial. Defendant claims that: (1) the administrative judge for the trial courts committed reversible error when he denied defendant's motion for recusal; (2) the trial court committed reversible error when it allowed plaintiffs to present evidence of certain OSHA/VOSHA standards and their alleged violation; (3) the jury verdict was a result of passion, caprice, prejudice, compromise, or some other consideration; and (4) the trial judge demonstrated prejudice in favor of plaintiffs when he engaged in a pattern of rulings in their favor throughout the trial. We affirm.

On February 12, 1987, plaintiff Albert Ball was injured while he was delivering fine sawdust, called wood flour, to defendant. Plaintiff was employed by Allen-Rogers, Ltd., as a truck driver. Allen-Rogers was one of several companies that delivered wood flour to defendant.

On the date in question, plaintiff backed his truck up to defendant's loading dock, parked it, and went inside the plant. A metal dockboard was placed between the loading dock and the rear of the truck by an employee of defendant, whose responsibility was to unload the sacks of wood flour with a forklift. In the course of unloading the wood flour, the forklift became stuck on the dockboard. Plaintiff was asked to help dislodge the forklift. In response, plaintiff picked up a piece of wood, and using it as a lever, placed it under the forklift and began prying the forklift upward. The piece of wood slipped and plaintiff fell backward into a cement wall, thereby injuring his back.

Plaintiffs claim that the forklift operator had not been adequately trained in forklift operation and that it was unsafe to ask plaintiff Albert Ball to attempt to pry or push the forklift when it was stuck. They also alleged that the dockboard did not conform with specific OSHA/VOSHA regulations. Defendant denied any negligence and filed a motion in limine seeking a pretrial determination that plaintiffs be precluded from introducing any evidence at trial of the alleged OSHA/VOSHA violations.

When the case was originally scheduled to be tried, the presiding judge for the Windham Superior Court was not available. Both parties requested the administrative judge for the trial courts to specially assign the case for trial in early August of 1992 if a judge was available. James L. Morse, a justice on this Court and former superior court judge, had agreed to an assignment in the Windham Superior Court because of the unavailability of the presiding judge. When the justice was assigned this case, he recalled that plaintiffs' attorney had filed an ethical complaint against him with the Judicial Conduct Board some six or eight years earlier, which was resolved when the Board dismissed the complaint. The justice asked not to be assigned to the case, out of concern that plaintiffs' attorney might believe the assignment was done solely because of the prior complaint.

Sometime prior to the scheduled trial date, counsel for plaintiffs contacted the administrative judge to inquire why Justice Morse had decided not to preside over this case. Counsel understood from the clerk of the court and the administrative judge that the justice's decision was based on the prior ethical complaint. The attorney then wrote to Justice Morse on July 28, 1992, stating that he felt such a decision was unwarranted since the Conduct Board had vindicated the justice. Plaintiffs' counsel went on to say that he felt that the request for reassignment showed that the justice bore a grudge against him for filing the complaint.

In response, Justice Morse drafted a letter to dispel the attorney's misapprehension and accepted assignment as trial judge of the case. This letter was hand delivered at a pretrial conference three days later, on the first day of trial. In addition to Justice Morse's letter, copies of all prior communications were also hand delivered to defense counsel at the pretrial conference.

On the second day of trial, defendant filed a motion for recusal alleging that "past events which occurred between Justice Morse and attorney Harlow" required it. This motion was denied. The trial judge later vacated his ruling and referred the motion to the administrative judge pursuant to V.R.C.P. 40(e). ¹ The administrative judge heard oral arguments on the motion for recusal at the end of the third day of trial and denied the motion.

I.

Defendant argues that the administrative judge for the trial courts committed reversible error when he denied defendant's motion for recusal of the trial judge. Before turning to the merits of defendant's claim, however, we must identify the appropriate standard of review to apply to the administrative judge's decision. Canon 3C(1) of the Code of Judicial Conduct establishes the general rule for disqualification of judges, providing that "[a] judge shall disqualify himself in a proceeding in which his impartiality might reasonably be questioned." A.O. 10, Canon 3C(1). This standard is met " 'whenever a doubt of impartiality would exist in the mind of a reasonable, disinterested observer.' " State v. Hunt, 150 Vt. 483, 492, 555 A.2d 369, 375 (1988), cert. denied, 489 U.S. 1026, 109 S.Ct. 1155, 103 L.Ed.2d 214 (1989) (quoting Richard v. Richard, 146 Vt. 286, 288, 501 A.2d 1190, 1191 (1985)). Since reasonable minds may differ on an issue, a certain degree of discretion inheres in the determination of whether a judge's impartiality may be doubted in a given situation. Moreover, the judge subject to the recusal motion is accorded a presumption "of 'honesty and integrity,' with burden on the moving party to show otherwise in the circumstances of the case." Klein v. Klein, 153 Vt. 551, 554, 572 A.2d 900, 903 (1990).

We decline to hold that a per se lack of impartiality, mandating recusal, arises whenever a judge is the subject of a judicial conduct complaint by an attorney. On its face, the "reasonable disinterested observer" standard of Canon 3C(1) forestalls such an inflexible per se rule, but instead enables the decisionmaker to take particular circumstances into account. Policy considerations also counsel against a mandatory recusal rule. Otherwise, an attorney would need only file a complaint, possibly groundless, to avoid a particular judge thereafter. Conversely, the requirement could cause an attorney to withhold a legitimate complaint against a judge that would effectively bar later appearances before that judge. Either scenario could undermine the integrity and goals of the judicial conduct review process. Considering these problems, and the effectiveness of the current flexible standard, we see no reason to adopt a per se recusal rule.

Defendant argues, citing Richard v. Richard, 146 Vt. at 288, 501 A.2d at 1191, that disqualification is required if even the slightest question exists as to a judge's impartiality. In Richard, however, we specified that this level of scrutiny was required "[a]bsent a procedure in Vermont for referral of close questions to another judge." Id. Since Richard was decided, Rule 40(e) was adopted and mandates the intervention of a disinterested judicial officer if the trial judge does not grant a motion to recuse. According to Rule 40(e)(3), "[t]he judge whose disqualification is sought shall either disqualify himself or herself or, without ruling on the motion, refer the motion to the Administrative Judge for Trial Courts. ..." V.R.C.P. 40(e)(3). As noted above, Canon 3C(1) provides a degree of discretion on the decision whether or not to recuse. Therefore, if the trial judge does not grant the motion to recuse, the question of recusal hinges on the administrative judge's exercise of discretion. On review this Court will disturb such a ruling only if there has been an abuse of discretion, that is, if the record reveals no reasonable basis for the decision. State v. Savo, 141 Vt. 203, 208, 446 A.2d 786, 789 (1982). Having determined the appropriate standard of review, we turn to the merits of defendant's claim.

The administrative judge did not abuse his discretion by denying the motion to recuse the trial judge. Defendant does not dispute that both sides had an adequate opportunity to present argument and evidence to the administrative judge. The record shows that the administrative judge was fully informed as to the nature and content of all communications between plaintiffs' counsel and the trial judge prior to trial, and of defendant's efforts to secure a recusal in the first two days of trial. The administrative judge found that any problem between the trial judge and plaintiffs' counsel had been resolved, a finding amply supported by the record. The administrative judge also concluded that defendant had failed to demonstrate that whatever occurred between the trial judge and plaintiffs' counsel would have a negative impact on defense counsel or his clients.

Furthermore, defendant failed to make any affirmative demonstration of actual prejudice or bias by the trial judge. A party seeking a trial judge's recusal must make a clear and affirmative showing of bias or prejudice. State v. Carter, 154 Vt. 646, 647, 577 A.2d 280, 281 (1990) (mem.); Klein, 153 Vt. at 554, 572 A.2d at 902. Defendant argued only that the potential existed for the trial judge to overcompensate in avoiding the appearance of bias against plaintiffs, with the result of prejudicing defendant. Defendant believed that none...