Demers v. Gerety, 2724

• Citation: 595 P.2d 387, 92 N.M. 749, 1978 NMCA 19
• Case Date: February 07, 1978
• Court: Court of Appeals of New Mexico

Page 387

595 P.2d 387

92 N.M. 749

Henry G. DEMERS, Plaintiff-Appellant, v. Edward J. GERETY, M. D., Defendant-Appellee.

No. 2724.

Court of Appeals of New Mexico.

Feb. 7, 1978.

Charles G. Berry, Marchiondo & Berry, P. A., Albuquerque, for plaintiff-appellant

Bruce D. Hall, Wm. Robert Lasater, Jr., Rodey, Dickason, Sloan, Akin & Robb, P. A., Albuquerque, for defendant-appellee.

OPINION

SUTIN, Judge.

"Ancaeus . . . was told by a hard-pressed slave that he would never live to taste the wine of his vineyards, and when such wine was set before him he sent for the slave to laugh at the latter's prognostications; but the slave made the answer 'there's many a slip 'twixt the CUP and the lip'. At this instant Ancaeus was told that the Calydonian BOAR was devastating his vineyard, whereupon he set down his cup, went out against the boar, and was slain in the encounter." Brewer's Dictionary of Phrase & Fable, Centenary Edition (1970), Harper & Rowe, p. 33.

Litigation is a slippery experience when appeals are reversed. Everything is uncertain until the case is put to rest.

Plaintiff was denied the right to taste the wine of his vineyard. He was slain in the instant case in his encounter with two district judges.

This is a career case. See Demers v. Gerety, 85 N.M. 641, 515 P.2d 645 (1973); Id., 86 N.M. 141, 520 P.2d 869 (1974), Id., 87 N.M. 52, 529 P.2d 278 (Ct.App.1974). In the first trial, plaintiff was awarded $67,000.00 in damages. In the second trial, he was awarded nothing. Plaintiff appeals. We reverse.

A. The original trial judge erroneously recused himself.

The Honorable Gerald D. Fowlie, District Judge, presided at the first trial. After reversal by this Court, the mandate for a new trial was filed in the district court clerk's office on December 6, 1974. On the same day, Judge Fowlie formally filed a recusal that stated:

I hereby recuse myself from hearing any proceedings in the above cause.

Judge Fowlie mailed a copy of his recusal to attorneys of record. The recusal showed that this case was reassigned to Judge Harry E. Stowers, Jr. Eighteen months later, on June 14, 1976, Judge Stowers also filed a formal recusal. Judge Stower's recusal, however, did not show that the case was reassigned to Judge Maurice Sanchez. Neither does the record show that this cause was reassigned from Judge Stowers to Judge Sanchez in accordance with the rules adopted by the Judges of the Second Judicial District. The district court's record shows that on some unrecorded date: "A44262 not honored by Judge Sanchez unless all counsel stipulate and agree to the disqualification."

After learning that Judge Sanchez would preside in this case on the merits, plaintiff filed an affidavit of disqualification and defendant filed a motion to quash. A hearing on defendant's motion was held on July 15, 1976. That same day, plaintiff filed a motion that Judge Fowlie withdraw his recusal and six days later, Judge Fowlie, without a hearing, and remaining mute, summarily denied the motion.

In the absence of any explanation, this Court cannot look with approval upon the conduct of plaintiff's attorney which allowed a delay of 19 months. Nevertheless, plaintiff did not waive the right to challenge the recusal by Judge Fowlie. Recusal is governed by § 16-11-3(C)(1)(a), N.M.S.A.1953 (Repl. Vol. 4, 1975 Supp.) of the Code of Judicial Conduct. It reads as follows:

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including But not limited to instances where :

(a) he has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding;

Recusal rests within the discretion of the trial judge. If a district judge seeks a recusal, the judge need not state the reasons why personal bias and prejudice exists. He/she may have personal reasons. But these reasons must be valid. Doe v. State, 91 N.M. 51, 570 P.2d 589 (1977). Furthermore, when the recusal is challenged, and the challenge is denied, a district judge has a duty to state in the order of denial that he has valid reasons for recusing himself. To remain mute constitutes an abuse of discretion; to refuse to hear the case without a compelling reason constitutes a neglect of duty.

In the trial of cases, recusal and disqualification of district judges is a subject of vital importance in the administration of justice. If they are not disqualified, they have a duty to sit. To introduce this subject matter, we borrow the words quoted in the landmark case of Benedict v. Seiberling, 17 F.2d 831, 840 (D.C.Ohio, 1926):

"Quite true it is that the judge has no concern in presiding on the trial of any particular case, and no litigant has any right to have a particular judge try his case; but every litigant under the Constitution and laws has the right to insist that his case be tried by the regular judge, if he is holding the court, unless he is shown to be disqualified, and it is essential to the orderly administration of justice and the integrity of the Constitution that judges appointed under it to administer its judicial power shall not be wrongfully driven from the judgment seats in any case. * * * "

It has been held that a district judge has the inherent power at any time to acknowledge his own disqualification and certify that fact of record, State ex rel. Mizner Land Corporation v. Gray, 117 Fla. 294, 157 So. 663 (1934). In addition, a judge has ". . . the discretionary power to disqualify himself Sua sponte whenever the existence of any semblance of judicial bias or impropriety in a proceeding in his court comes to his attention." Stein v. State, Ind.App., 334 N.E.2d 698, 699 (1975). But the grounds relied on by the judge for disqualification must be adequate, because a judge has no right to disqualify himself in the absence of a valid reason. Williams & Mauseth Ins. Brokers, Inc. v. Chapple, 11 Wash.App. 623, 524 P.2d 431, 434 (1974); Arizona Conference Corp. v. Barry, 72 Ariz. 74, 231 P.2d 426 (1951); Clawans v. Waugh, 10 N.J.Super. 605, 77 A.2d 519 (1950); Board of County Com'rs of Pitkin v. Blanning, 29 Colo.App. 61, 479 P.2d 404, 406 (1970), or for the most compelling reasons. Nelson v. Fitzgerald, 403 P.2d 677 (Alaska, 1965). "There is as much obligation upon a judge not to recuse himself when there is no occasion as there is for him to do so when there is." In Re Union Leader Corporation, 292 F.2d 381, 391 (1st Cir. 1961).

We should heed the admonition of Justice Montoya as stated in his special concurring opinion in Gray v. Sanchez, Robertson v. Sanchez, 86 N.M. 146, 150, 520 P.2d 1091, 1095 (1974).

If the present system of disposing of cases in the Second Judicial District inhibits or in any way interferes with the substantive right of the litigant to disqualify a judge, as set forth in the statute, then the latter right must prevail. Otherwise, the statutory right is more illusory than real.

Given this duty to hear a case, and absent compelling reasons to recuse himself such as bias or prejudice, reversal and remand for a new trial are not sufficient to prevent a judge from retrying a case. State v. Nelson, 65 N.M. 403, 413, 338 P.2d 301 (1959). State ex rel. Anaya v. Scarborough, 75 N.M. 702, 410 P.2d 732 (1966). Plaintiff objected to the recusal by Judge Fowlie. On review of a perplexing problem such as this one, our duty points toward satisfying the expectations of fairness of a party rather than resolving the interplay of judges in a multi-judge district court. We must never deny to any litigant the right to a fair and impartial trial before a fair and impartial judge the very essence of justice in our judicial system.

Judge Fowlie's recusal was erroneous.

B. The presiding judge erred in refusing to honor plaintiff's affidavit of disqualification timely filed.

This cause was at issue on February 20, 1970, and was tried with Judge Fowlie presiding. The judgment entered on September 20, 1972 was appealed to this Court. After two opinions by this Court and one by the Supreme Court, the case was reversed and remanded for a new trial consistent with the opinion of this Court. The mandate was filed in the office of the district court clerk on December 6, 1974. Twenty months later, Judge Sanchez decided to try this case on the merits. The record does not disclose the date or the procedure by which Judge Sanchez became the presiding judge.

More than six years after the cause was at issue, on July 1, 1976, plaintiff filed an affidavit of disqualification directed to Judge Sanchez. Within a week of plaintiff's attempt to disqualify Judge Sanchez, defendant filed a motion to quash the affidavit relying on the fact that the cause was at issue on February 20, 1970, and the affidavit was not timely filed as provided by §§ 21-5-8 and 21-5-9, N.M.S.A.1953 (Repl. Vol. 4, 1975 Supp.).

A hearing was held on defendant's motion to quash. Thereafter, the motion was sustained because the affidavit was not timely filed.

The trial court relied on Gray v. Rozier E. Sanchez and Harry E. Stowers, Jr., District Judges, and Robertson v. Honorable Maurice Sanchez, Judge, supra. Gray was a criminal case. Robertson was a civil case.

In interpreting § 21-5-8, Gray v. Sanchez followed Beall v. Reidy, 80 N.M. 444, 457 P.2d 376 (1969). It acknowledged the problems which arise when a party who has not been apprised of the trial judge, needs to later disqualify the designated judge. Gray quoted at length from Beall. Chief Judge Wood of this Court, speaking for the Supreme Court, said:

". . . (A) party needs to know the name of the judge before whom the case is to be tried And needs that information early in the litigation.

. . . Accordingly, it is incumbent upon the judges in multi-judge districts to provide, By rule, a method by which the party may know the name of the judge before whom the case is to be tried And may know the name before the right to disqualify under § 21-5-8, supra,...