KNOXVILLE, Tenn. (Legal Newsline) - A Tennessee judge who called his opponent “a morally bankrupt soul” during a hard-fought election must recuse himself from hearing cases involving the lawyer, an appeals court ruled, but no such restrictions apply to the lawyer’s firm.
Ben Dean challenged Chancellor Laurence M. McMillan for a seat on the 19th District court in 2022, unseating McMillan after more than 15 years on the bench. On the way to victory, Dean made “extremely derogatory remarks” about McMillan on Facebook, including:
"…My opponent keeps saying the mantra 'Experience Matters,' yet he has little to nothing to say or show about anything positive he has accomplished professionally or personally in 18 years as Chancellor.
"All the experience in the world means nothing if you can’t be nice and kind to people or if you are a morally bankrupt soul."
Even after Dean won, he berated his former opponent for saying the politicization of their race was “a loss for the moral integrity” of the court. In response, now-Chancellor Dean said he “ran a fairly positive campaign” without broadcasting McMillan’s “many past moral failings and deep character flaws” or “telling all the sordid details of his own personal failings.”
Now representing a client named Thomas Denney and his company, Doghouse Computers, McMillan asked Chancellor Dean to recuse himself from that and any future cases where McMillan or his law firm were involved. The judge refused, saying he held “no ill will, personal bias or prejudice” toward McMillan. It would also be unreasonable to conclude he was biased against McMillan’s firm, the judge ruled.
McMillan appealed the refusal under a Tennessee court rule allowing interlocutory appeals of certain judicial orders. The defendant in the Doghouse case opposed the appeal, arguing it would encourage lawyers to file complaints against judges as a tactic to force recusal.
Judge Jeffrey Usman of the Tennessee Court of Appeals ordered Chancellor Dean to recuse himself from the Doghouse Computers case but refused to order recusal from cases involving McMillan’s firm. In a Jan. 19 opinion, the judge began by dismissing arguments recusal here would inspire lawyers to file complaints against judges or make disparaging comments about them during an election to make them recuse themselves later.
“The comments in this case were not made as part of some type of quixotic attempt to force recusal of a judge through disparaging remarks but instead were comments made by the elected judge as to whom recusal is being sought,” he wrote. “In the rough-and-tumble of a hotly contested election, a candidate for judicial office may use strong language which does not tend toward respectful debate with his or her opponent.”
Nevertheless, some of Dean’s comments reflected a “deeply personal critique” that questioned the judge’s character and ability to serve, the judge continued.
“Many critiques, even sharp and cutting critiques of an opponent in a campaign for judicial office, will not require recusal, but here, given the nature of the comments, a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, could find a reasonable basis for questioning the judge’s impartiality as to Mr. McMillan,” the court concluded.
There was no evidence of bias against McMillan’s law firm, however, the judge ruled.