Jenkins v. Forrest County General Hosp., 56508
| Citation | 542 So.2d 1180 |
| Decision Date | 30 November 1988 |
| Docket Number | No. 56508,56508 |
| Parties | Oddie JENKINS and Alvin Jenkins v. FORREST COUNTY GENERAL HOSPITAL; Hattiesburg Radiology Group, a Partnership; Dr. Marcus Hogan; and Dr. Hernando Velez. * |
| Court | United States State Supreme Court of Mississippi |
Margaret P. Ellis, C.R. McRae, Pascagoula, for appellants.
R.W. Heidelberg and Robert J. Dambrino, III, Heidelberg, Sutherland & McKenzie, Hattiesburg, Jimmy B. Reynolds, Jr., and William C. Griffin, Steen, Reynolds, Dalehite & Currie, Jackson, S. Wayne Easterling, Easterling & Varnado, Dorance C. Aultman and Vicki Ruffin Leggett, Aultman, Tyner, McNeese, Weathers & Ruffin, Hattiesburg, for appellees.
En Banc.
I.
This appeal arises from the Circuit Court of Forrest County, Mississippi, wherein Alvin Jenkins and Oddie Jenkins, husband and wife, filed suit against Dr. A.D. Cromartie, Dr. Dorothy Gillespie, Dr. Hernando Velez and the Hattiesburg Radiology Group, Dr. Marcus Hogan, and Forrest County General Hospital. The suit claimed a negligent failure to diagnose Oddie Jenkins' twin pregnancy resulting in injuries; that Dr. Hogan was negligent in performing a 1977 tubal ligation which should have, but did not, render Oddie Jenkins incapable of becoming pregnant; and that all of the doctors and Forrest County General Hospital were agents, servants, employees and joint venturers of and with each other.
On September 11, 1984, the Jenkins filed a motion for the Circuit Judge Richard W. McKenzie to recuse himself on the grounds that his brother was a senior partner in the law firm of Heidelberg, Sutherland & McKenzie, representing the Hospital, and further because Judge McKenzie had openly stated that the medical community of Hattiesburg was responsible for his election. The Jenkins did not feel that they could get a fair trial against members of the medical community before a judge who believed himself beholden to that professional community. The motion to recuse was heard on October 18, 1984, at which time it was overruled and the judge proceeded to hear arguments on behalf of all defendants' motions for summary judgment. The Jenkins have cited Judge McKenzie's failure to recuse himself, inter alia, as reversible error. Because we agree and therefore reverse, we do not reach the other error assigned.
II.
On appeal and in their motion for recusal, the Jenkins allege that Judge McKenzie should have disqualified himself to avoid the appearance of impropriety. In support of their motion, the Jenkins cite the Judge's family relationship to a senior partner in the law firm representing Forrest County General Hospital and further allege that it was public knowledge that Judge McKenzie attributed his successful election to the medical community.
III.
The legal authority upon which this Court's decision must rest is contained in constitutional and statutory directives. Ruffin v. State, 481 So.2d 312 (Miss.1985).
The Mississippi Constitution of 1890, Article VI, Section 165 speaks to the issue at hand and reads in applicable part:
No judge of any court shall preside on the trial of any cause, where the parties or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, except by the consent of the judge and of the parties....
Except for minor differences in wording and punctuation, the same language is used in Mississippi Code Annotated, Sec. 9-1-11 (1972).
On October 25, 1974, the Mississippi Conference of Judges adopted the Code of Judicial Conduct. Canon 3 C(1)(d) states:
(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
(d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) is acting as a lawyer in the proceeding.
The official Commentary adopted by that conference serves to offer guidance as to the circumstances in which a judge may be required to recuse himself. The Code's Commentary to Canon 3 C(1)(d)(i)(ii) reads as follows:
The fact that a lawyer in a proceeding is affiliated with a law firm with which a lawyer-relative of the judge is affiliated does not of itself disqualify the judge. Under appropriate circumstances, the fact that "his impartiality might reasonably be questioned" under Canon 3 C(1), or that the lawyer-relative is known by the judge to have an interest in the law firm that could be "substantially affected by the outcome of the proceeding" under Canon 3 C(1)(d)(iii) may require his disqualification.
While it may be true that such a broad qualification is not justified in every instance wherein a relative of a judge is affiliated with a law firm that is involved in a proceeding, the situation in this case concerns whether Judge McKenzie's "impartiality might reasonably be questioned" under Canon 3 C(1). We feel that such a situation exists here.
Recently we reiterated and modified our rule on this matter so as to conform to Canon 3 C(1) of the Code of Judicial Conduct. Cantrell v. State, 507 So.2d 325 (Miss.1987).
In Rutland v. Pridgen, 493 So.2d 952, 954 (Miss.1986), we stated:
In Ruffin v. State, 481 So.2d 312 (Miss.1984 [sic], we said, "When a judge is not disqualified under Sec. 165 of the Mississippi Constitution, or Sec. 9-1-11, the propriety of his or her sitting is a question to review only in case of manifest abuse of discretion." Id. at 317. See also, Coleman v. State, 378 So.2d 640 (Miss.1979).
We went on to modify the rule set forth above, to include an objective test that Cantrell, 507 So.2d at 332 (Sullivan, J., concurring).
We find that in light of the fact that (1) Judge McKenzie's brother is a senior partner in the law firm representing Forrest County General Hospital, obviously a part of the medical community, coupled with (2) allegations and testimony that the medical community in Forrest County assisted in electing the judge, this would lead a reasonable person, with knowledge of the circumstances, to harbor doubts about Judge McKenzie's impartiality. We make the point that this test is an objective one, and under the facts presented below we have no choice but to reverse on this matter. The issue is not any wrongdoing on the part of Judge McKenzie, but the potential for such and moreover, how this situation appears to the general public and the litigants whose cause comes before this judge.
Every litigant is entitled to nothing less than the cold neutrality of an impartial judge, who must possess the disinterestedness of a total stranger to the interest of the parties involved in the litigation, whether that interest is revealed by an inspection of the record or developed by evidence aliunde the record.
Yazoo & M.V.R. Co. v. Kirk, 102 Miss. 41, 55, 58 So. 710, 713 (1912).
In accordance with the rules of law above discussed, and the facts of this case, we are of the opinion that a reasonable person, knowing all the circumstances, would harbor doubts as to Judge McKenzie's impartiality. Therefore, we find that the interest of justice would best have been served had Judge McKenzie recused himself from this matter. Cantrell, supra, (Sullivan, J., concurring). In light of his failure to do so, this necessitates reversal on all points with an order that a circuit judge, other than Judge McKenzie, preside over this matter.
The judgment of the lower court is reversed and this cause is remanded for a new trial with orders consistent with this opinion.
REVERSED AND REMANDED.
The complaint in this cause was filed on March 11, 1983. The motion for the judge to recuse himself was not filed until September 11, 1984, some eighteen months later. It was filed after all of the motions for summary judgment, except one, had been filed and a non-transcribed hearing held. Admittedly, the summary judgments were not entered until a transcribed hearing was conducted on the motions and at which hearing the motion to recuse was overruled.
Approximately one year prior to the hearing on a motion to recuse, Judge Richard McKenzie, having injured his hand in a fall, met William Wilson, a Pascagoula attorney, outside of the Oschner Clinic in New Orleans. Wilson described his relationship with Judge McKenzie as "very familiar" and "cordial", dating to their law school days.
Intended as a "teasing remark", Wilson stated, "It's a shame they cannot attend your hand in Hattiesburg as much as they did for you in the last election." Judge McKenzie, according to Wilson, responded, "They elected me." At the hearing, Wilson testified, "It was something that surprised me, it was a very frank statement to a teasing remark to which I expected a jocular answer, and I did not take that to be jocular."
The majority opinion concludes that it was error for Judge McKenzie to hear the case at issue, involving medical malpractice, stating,
[I]n light of the fact that (1) Judge McKenzie's brother is a senior partner in the law firm representing Forrest County General Hospital, obviously a part of the medical community, coupled with (2) allegations and testimony that the medical community in Forrest County assisted in electing the judge, this would lead a reasonable person, with knowledge of the circumstances, to harbor doubts about Judge McKenzie's impartiality.
In support, the majority opinion cites Rutland v. Pridgen, 493 So.2d 952 (1986), where this Court, adopting an objective test, stated, "A judge...
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