Moffett, In re

• Decision Date: 31 January 1990
• Docket Number: No. 89-M-853,89-M-853
• Citation: 556 So.2d 723
• Parties: In re Catherine Ruth MOFFETT and Larry Moffett, Petitioners.
• Court: Mississippi Supreme Court

Page 723

556 So.2d 723

In re Catherine Ruth MOFFETT and Larry Moffett Petitioners.

No. 89-M-853.

Supreme Court of Mississippi.

Jan. 31, 1990.

Jeff D. Rawlings, Brad Sessums, Richard Underwood, Young Scanlon & Sessums, Jackson, for petitioners.

J. Robert Ramsay, Bryant Colingo Clark Dukes Blakeslee & Ramsay, R. Web Heidelberg, Heidelberg Sutherland & McKenzie, Hattiesburg, for respondents.

En Banc.

ON APPLICATION FOR WRIT OF MANDAMUS AND FOR OTHER

EXTRAORDINARY RELIEF

ROY NOBLE LEE, C.J., for the Court.

This matter is before the Court upon application of Catherine Ruth Moffett and Larry Moffett, plaintiffs in a case pending On November 18, 1988, the complaint was filed by the petitioners here, and on December 28, 1988, Judge McKenzie filed a notice of relationship which reflected that Judge Richard W. McKenzie is a brother of, and related in the second degree to, James F. McKenzie, a member of the law firm of Heidelberg, Sutherland and McKenzie of Hattiesburg, which law firm is counsel of record for one or more parties in the action.

in the Circuit Court of Forrest County, Mississippi, Cause No. 11-88-2521, filed against Lewis Hatten, M.D., and Forrest General Hospital, alleging medical negligence and malpractice. Judge Richard W. McKenzie is the presiding Circuit Court Judge for Forrest County, Mississippi, where the case is pending.

On January 13, 1989, the Moffetts filed a motion for recusal of Judge McKenzie. The motion stated that James F. McKenzie, brother of Judge Richard W. McKenzie, is a partner in the law firm of Heidelberg, Sutherland & McKenzie, and that the firm represents the defendant Forrest General Hospital in the Moffetts' pending case. The motion further states that Judge McKenzie should recuse himself to avoid the appearance of impropriety, pursuant to Canon 3(C)(1)(d) of the Code of Judicial Conduct and that, additionally, Article VI, Sec. 165 of the Mississippi Constitution requires recusal absent consent of the parties and that petitioners have not consented to Judge McKenzie presiding in the case.

On June 23, 1989, after a hearing, Judge McKenzie denied the petitioners' motion for recusal and the matter is now before this Court for remedial relief pursuant to Miss.Sup.Ct. Rule 21.

Petitioners cite and rely upon Jenkins v. Forrest County General Hospital, 542 So.2d 1180 (Miss.1989). Jenkins was a malpractice case against Forrest County General Hospital (same defendant in the Moffett case), Hattiesburg Radiology Group, a partnership composed of Dr. Marcus Hogan and Dr. Hernando Velez. Judge Richard W. McKenzie was the presiding judge and denied plaintiffs' motion for his recusal. Judge McKenzie proceeded to hear motions for summary judgment filed by the defendants. On appeal, this Court first addressed the assigned error of Judge McKenzie's refusal to recuse himself and reversed and remanded the case without considering any other question, ordering that a circuit judge, other than Judge McKenzie, preside over the matter.

Jenkins, supra, turned on a two-pronged motion to recuse: (1) that Forrest County General Hospital and the medical community actively participated in the election of Judge McKenzie and was responsible for his election in 1982, and (2) James F. McKenzie was a senior partner in the law firm of Heidelberg, Sutherland & McKenzie, which represented Forrest County General Hospital in that suit. However, after seven (7) years of serving on the circuit bench and having been subsequently elected, the signs of political help in 1982 have grown dim and, therefore, cause no real concern to this Court in the Moffett case.

However, we examine with concern the relationship between Judge McKenzie and James F. McKenzie, his brother and a senior partner in the defending law firm. In Jenkins, Article VI, Sec. 165, Mississippi Constitution of 1890, Mississippi Code Annotated Sec. 9-1-11 (1972), and Canon 3 C(1)(d) of the Mississippi Code of Judicial Conduct were discussed, along with appropriate Mississippi cases relating to the disqualification and recusal of trial judges. Provisions of the Constitution and the statute do not cover the situation presented to the Court here, since Judge McKenzie's brother is not a party to the case. Had his law firm represented a defendant on a contingency contract, he would have become a party which would have required the judge to recuse himself under the Constitution and the statute. As in Jenkins, we look to Canon 3 C(1)(d) which 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 Commentary to this Canon 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.

The respondents claim that James F. McKenzie is not a trial lawyer and his practice is limited to office practice; that he does not appear before Judge Richard W. McKenzie and that his firm is paid for their services on an hourly basis, without any contingent arrangement. Mr. McKenzie testified that his financial interest lies in the fact that he shares in the profits of the law firm. However, Mr. McKenzie pointed out that their law firm serves as general counsel to Forrest County General Hospital and, as such, he is involved in the business affairs of the hospital. He conceded that the hospital is a happy client when the firm wins lawsuits in which the hospital is involved. In Jenkins v. Forrest County General Hospital, 542 So.2d 1180 (Miss.1989), quoting from Rutland v. Pridgen, 493 So.2d 952 (Miss.1986), this Court said:

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 "a judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality." Rutland at 954. Cantrell [v. State], 507 So.2d at 332 [Miss.1987] (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.

542 So.2d at 1181.

The question here is not whether Judge McKenzie would give favor or disfavor in the trial of the Moffetts' case, but whether or not there is a reasonable appearance of impropriety on the part of the judge because his brother is a senior partner in the law firm representing a principal defendant. The Moffetts, who have a case of great importance to them, are reasonably concerned that kinship might cause them to be at a disadvantage in the presentation of their claim. Their friends, relatives, and probably other persons, who think of the closeness between brothers, could reasonably think that it was improper for the judge to preside over the case under those circumstances. If the Moffetts should lose their case, particularly on summary judgment, directed verdict, JNOV, or instructions, the public which knows nothing of the parties, the lawyers or the judge The question which we must decide is distasteful to appellate courts. To solve the problem, trial judges, in a situation such as is presented here, particularly where the judge has filed a notice of relationship and then a motion has been made for recusal because of such close kinship, should grant the motion and decline to participate in the case. As, in Jenkins v. Forrest County General Hospital, we find that the interest of justice would best have been served had Judge McKenzie recused himself from this matter.

                probably would say "Why, no wonder, the judge's brother was one of the lawyers."   The appearance of impropriety
                

The relief prayed for is granted, and this cause is remanded to the Circuit Court of Forrest County, Mississippi, for trial before a circuit judge other than Circuit Judge Richard W. McKenzie.

EXTRAORDINARY RELIEF OF RECUSAL GRANTED AND CAUSE REMANDED TO THE CIRCUIT COURT OF FORREST COUNTY, MISSISSIPPI

ROY NOBLE LEE, C.J., DAN M. LEE, P.J., AND PRATHER, ROBERTSON, and BLASS, JJ., concur.

HAWKINS, P.J., dissents by Separate Written opinion joined by SULLIVAN, J.

SULLIVAN, J., dissents as to reliance on Jenkins v. Forrest County General Hospital, 542 So.2d 1180 (Miss.1989), and files separate written opinion joined by HAWKINS, P.J., and ANDERSON and PITTMAN,...