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Mondy v. Magnolia Advanced Materials, Inc.

Supreme Court of Georgia

June 4, 2018



         We granted a writ of certiorari in this case to decide whether, when a motion to recuse the trial judge is filed after the judge has orally held a party's attorney in contempt, the recusal motion must be decided before the judge may properly proceed to enter a written contempt order. In Mondy v. Magnolia Advanced Materials, Inc., 341 Ga.App. 141 (797 S.E.2d 506) (2017), the Court of Appeals held that the trial judge can ignore the pending recusal motion and enter the contempt order. See id. at 142-143. We disapprove that holding, concluding that under Uniform Rule of Superior Court 25.3, the entry of a written contempt order is an "act upon the merits" of the contempt proceeding that a trial judge whose impartiality has been formally called into question may not properly perform until the recusal motion has been decided.

         We also conclude, however, that - even assuming the motion to recuse in this case was not only filed with the clerk but also "presented" to the trial judge as Rule 25.3 requires - the motion was legally insufficient on its face. Thus, if properly considered, the recusal motion would not have required the trial judge's recusal, and the judge's procedural error does not require us to vacate the contempt order that followed. We therefore ultimately affirm the judgment of the Court of Appeals.

         1. The record shows the following. Michael O. Mondy is a lawyer. His client, Moses Langford, is the defendant in a breach of contract and trade secrets lawsuit brought in the Superior Court of DeKalb County by Langford's former employer, Magnolia Advanced Materials, Inc. Langford is also the plaintiff in an employment discrimination case against Magnolia brought in federal court in Georgia, and Magnolia is also the defendant in a trade secrets case brought by its competitor, Epoplex, in federal court in South Carolina.

         In August 2015, a few days after Epoplex issued a federal court subpoena to Langford requesting Magnolia documents, the trial judge in the state case entered an injunction prohibiting Mondy and Langford from directly or indirectly disclosing or permitting unauthorized access to Magnolia's non-public information. Magnolia then filed a motion to quash the federal subpoena, and a federal magistrate judge entered an order staying compliance with the subpoena until further order. A few days later, Mondy filed an unsealed brief with 28 exhibits opposing the motion to quash. Because the brief was not sealed, Magnolia's non-public information in the exhibits was made available not only to the general public but to Magnolia's competitor Epoplex - to whom Mondy also directly sent a Dropbox link containing the brief and exhibits.

         Magnolia then filed a motion in the state case to hold Mondy and Langford in contempt of the injunction. On November 23, 2015, the trial judge held an evidentiary hearing at which Mondy testified and exhibits were admitted. During the hearing, the judge orally held Mondy in contempt for violating the injunction. The judge directed Magnolia's counsel to submit a proposed order within ten days. The judge did not announce any sanction for the contempt, but directed that a hearing be scheduled regarding an award of attorney fees to Magnolia.[1]

         Five business days later, on November 30, Mondy filed with the trial court clerk a motion to recuse the trial judge and his own supporting affidavit. The substance of the recusal motion was that the judge's factual findings and legal conclusions regarding the contempt motion showed that the judge was prejudiced against Mondy; in his affidavit, Mondy also averred that the judge was prejudiced against him based on the judge's rulings and "condescending" and "angry" facial expressions and tone during the contempt hearing and in previous, unrelated cases. The judge did not immediately rule on the recusal motion. Instead, two weeks later, on December 15, 2015, the judge entered an 11-page written order holding Mondy in contempt. Forty minutes after that, the judge issued the following order: "I hereby recuse myself voluntarily from the above-styled case. The Superior Court Administrator shall assign the case to a different [judge.]" Mondy appealed the contempt order. See OCGA § 5-6-34 (a) (2) (authorizing an immediate direct appeal of "[a]ll judgments involving . . . contempt cases").

         The Court of Appeals affirmed the contempt order on the merits, explaining that Mondy had failed to include and properly identify evidence in the record to support his claims of error, and also held that Mondy could not appeal the trial judge's oral ruling granting a motion to compel discovery because it had not been reduced to a written order before Mondy appealed. See Mondy, 341 Ga.App. at 144-146. Before doing that, however, the court rejected Mondy's contention that it was improper for the trial judge to enter the written contempt order before disposing of the recusal motion. See id. at 142-143. The Court of Appeals recognized that Uniform Superior Court Rule 25.3 directs that, "[w]hen a judge is presented with a motion to recuse, or disqualify, accompanied by an affidavit, the judge shall temporarily cease to act upon the merits of the matter and shall immediately determine the timeliness of the motion and the legal sufficiency of the affidavit, " denying the motion if it is untimely or legally insufficient and otherwise directing that the motion be assigned to another judge to resolve. But the Court of Appeals concluded that the trial judge did not "act upon the merits" of the case by issuing the contempt order, which was characterized as merely "an administrative process that effectuated a ruling made before Mondy filed his motion to recuse." Mondy, 341 Ga.App. at 143. The court also analogized this case to cases holding that "a plaintiff may not foreclose a judge from acting on [the judge's] orally-announced intention to grant a defendant's dispositive motion by dismissing his complaint." Id.

         This Court granted Mondy's petition for a writ of certiorari solely to address the recusal motion issue.

         2. "'It is vital to the functioning of the courts that the public believe in the absolute integrity and impartiality of its judges, and judicial recusal serves as a linchpin for the underlying proposition that a court should be fair and impartial.'" Mayor & Alderman of the City of Savannah v. Batson-Cook Co., 291 Ga. 114, 114 (728 S.E.2d 189) (2012) (citations omitted). The formal procedures governing recusal of superior court judges are found in Uniform Superior Court Rule 25. See Batson-Cook Co., 291 Ga. at 116 & n.3. An understanding of the basic procedural and substantive rules of recusal (or "disqualification, " as that term is used interchangeably with "recusal" in this context) is necessary to understand our decision in this case. We recently outlined those rules in Post v. State, 298 Ga. 241, 243-245 (779 S.E.2d 624) (2015), and we will now repeat much of what we explained there.

         Rule 25.3 directs that when the trial judge assigned to a case is presented with a recusal motion and an accompanying affidavit, "the judge shall temporarily cease to act upon the merits of the matter" and determine "immediately": (1) whether the motion is timely; (2) whether the affidavit is legally sufficient; and (3) whether the affidavit sets forth facts that, if proved, would warrant the assigned judge's recusal from the case. See Horn v. Shepherd, 294 Ga. 468, 471 (754 S.E.2d 367) (2014); Birt v. State, 256 Ga. 483, 484 (350 S.E.2d 241) (1986). If all three criteria are met, "another judge shall be assigned to hear the motion to recuse." USCR 25.3. The decision about referring a recusal motion for reassignment to another judge does not involve an exercise of discretion by the judge whose recusal is sought. See Batson-Cook Co., 291 Ga. at 119. Rather, whether the three threshold criteria have been met is a question of law, which an appellate court reviews de novo. See id.

         To be timely, a recusal motion and accompanying affidavit must be filed and presented to the judge "not later than five (5) days after the affiant first learned of the alleged grounds" for the judge's recusal "and not later than ten (10) days prior to the hearing or trial which is the subject of [the] recusal." USCR 25.1. Failure to meet these deadlines may be excused, but only if the motion and affidavit establish "good cause" for the delay, and "[i]n no event shall the motion be allowed to delay the trial or proceeding." Id. If a recusal motion presents allegations, some of which are timely and some untimely, only the timely allegations will be considered. See, e.g., Henderson v. State, 295 Ga. 333, 335 (759 S.E.2d 827) (2014); Woodham v. Atlanta Dev. Auth., 335 Ga.App. 126, 129 (779 S.E.2d 116) (2015).

         For the affidavit accompanying a recusal motion to be legally sufficient, it must contain "the three elements essential to a complete affidavit . . . ." Batson-Cook Co., 291 Ga. at 120. The affidavit or affidavits accompanying the recusal motion must also "fully assert the facts upon which the motion is founded" and present "all evidence" on the motion. USCR 25.1.

         Allegations consisting of "bare conclusions and opinions" that the assigned judge is biased or prejudiced for or against a party, USCR 25.2, "are not legally sufficient to support a recusal motion or to justify forwarding the motion for decision by another judge." Horn, 294 Ga. at 472. In all other respects, however, the assigned judge must take the motion at face value, treating it as though "all of the facts set forth in the affidavit are true." USCR 25.3. See Batson-Cook Co., 291 Ga. at 120-121 ("The rationale for requiring the judge to take as true the affidavit's facts even when the judge knows the facts are not true 'is easy to divine. To commit to the judge a decision upon the truth of the facts gives chance for the evil against which the [rule] is directed.' Berger v. United States, 255 U.S. 22, 36 (41 S.Ct. 230, 65 LE 481) (1921)."). In deciding whether this assumed state of facts would require recusal, Rule 25.3 says that the assigned judge is to be guided by Canon 3E of the former Georgia Code of Judicial Conduct, which has been replaced by Rule 2.11 of the revised Code of Judicial Conduct that took effect on January 1, 2016.

         Rule 2.11 (A) in the revised Code says generally that "[j]udges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned, " followed by a non-exclusive list of specific situations in which recusal is required, including when "[t]he judge has a personal bias or prejudice concerning a party or a party's lawyer . . . ." Rule 2.11 (A) (1) (italics removed). The standard is an objective one. The facts "must be considered from the perspective of a reasonable person rather than from the perception of interested parties or their lawyer-advocates, or from the subjective perspective of the judge whose continued presence in the case is at issue." Batson-Cook Co., 291 Ga. at 121 (citation omitted). The operative question is whether "a fair-minded and impartial person would have a reasonable perception of a judge's lack of impartiality based upon objective facts set forth in the affidavit or reasonable inferences therefrom." Id.

         If the motion and affidavit, taken at face value, satisfy the three threshold criteria, the assigned judge must refer the motion for reassignment and may not "oppose the motion." USCR 25.3. The judge whose recusal is sought may not respond to the motion or attempt to refute the allegations, which "stand denied automatically, " id., no matter how false or even defamatory the judge might know or perceive the allegations to be. See Isaacs v. State, 257 Ga. 126, 128 (355 S.E.2d 644) (1987). If the recusal motion satisfies the test for referral to another judge, the challenged judge "shall neither select nor participate in the selection of the judge to hear the motion." USCR 25.5. In a judicial circuit with three or more superior court judges, see OCGA § 15-6-2 (11), a judge must be assigned to hear and decide the motion using the circuit's "existing random, impartial case assignment method, " USCR 25.4 (c). That judge may decide the motion solely on the affidavits, but also has discretion to convene an evidentiary hearing. See USCR 25.6. Either way, after considering the evidence, the judge must rule on the merits of the motion and "make written findings and conclusions." Id. If the recusal motion is denied, the original judge will continue to preside over the case. If the motion is granted, the judge originally assigned to the case is recused, and another judge must then be selected to preside over the case following the same procedure that was used to select the judge who decided the recusal motion. See id. The decision of the judge assigned to hear the recusal motion - the ruling on the merits of the motion, based on findings about which allegations are in fact true and what inferences should in fact be made - is reviewed on appeal only for abuse of discretion. See Batson-Cook Co., 291 Ga. at 119.

         Finally, if a trial judge determines at any time that he is required to disqualify, he may voluntarily recuse from a case, on the motion of a party or on the judge's own motion. See USCR 25.7; Gude v. State, 289 Ga. 46, 50 (709 S.E.2d 206) (2011) ("A trial judge has an ethical duty to recuse himself or herself sua sponte anytime the judge is aware of grounds to do so."). "A voluntary recusal shall not be construed as either an admission or denial to any allegations which have been set out in [a recusal] motion." USCR 25.7. If the judge voluntarily recuses, the case is reassigned to another judge using the procedures described in Rule 25.4

         The principal question in this case focuses on the text of Rule 25.3 that directs a trial judge faced with a recusal motion to "temporarily cease to act upon the merits of the matter and . . . immediately determine the timeliness of the motion and the legal sufficiency of the affidavit, " denying the motion if it is untimely or insufficient on its face and otherwise referring it to another judge for decision. The trial judge in this case did not immediately determine the facial validity of Mondy's motion to recuse him. Instead, the motion remained pending before the judge when, 15 days later, he entered the order holding Mondy in contempt. The Court of Appeals held that the trial judge acted properly; as we will explain, we disagree, although we conclude that any error was harmless in this case because Mondy's recusal motion was legally insufficient on its face.

         3. Before moving to that analysis, however, we recognize that there is a preliminary question about whether Mondy properly "presented" his recusal motion to the trial judge for decision. Although appellate cases discussing the timeliness of recusal motions often refer simply to the motion being "filed, " see, e.g., Post, 298 Ga. at 246-247; Henderson, 295 Ga. at 333-334, the rules plainly require that, to be timely, a recusal motion must be both "filed" (an act often done in the clerk of court's office, without immediate notification to the judge handling the case, see OCGA § 9-11-5 (e)) and "presented" to the judge (an act that makes the judge immediately and personally aware of the recusal issue). See USCR 25.1 ("Filing and presentation to the judge shall be not later than five (5) days after the affiant first learned of the alleged grounds for disqualification . . . ."); USCR 25.3 (establishing duties of the trial judge beginning "[w]hen a judge is presented with a motion to recuse").

         Mondy's recusal motion and accompanying affidavit are each stamped filed by the clerk of court, but there appears to be no direct evidence in the record that the motion was also presented to the trial judge that same day (which was the last day the motion would be timely) or at any time before the judge entered the contempt order. On the other hand, in civil actions, Uniform Superior Court Rule 6.1 requires the clerk of court in judicial circuits using an individual assignment system, like the circuit in which the trial judge here serves, to "promptly upon filing" furnish to the assigned judge a copy of pretrial motions not consented to by all parties, which would include the recusal motion in this case. "Promptly" means "without delay." Oxford English Dictionary, OED Online (2018). We also know that the trial judge voluntarily recused himself just after entering the contempt order.

         From the start, the parties have litigated the recusal issue on the apparent assumption that Mondy's recusal motion was properly and timely presented to the trial judge, and the Court of Appeals did not address this question. Because we ultimately find no reversible error in the trial court's judgment, we need not decide this question, but we note that if a party wishes its recusal motion to preclude a judge from continuing to act on the merits of a case (and to have the motion deemed timely), the party must ensure in some fashion that the judge is made aware of the recusal issue.[2]

         4. Turning to the question we posed in granting certiorari, Magnolia offers two arguments why the contempt order should not be considered an action "upon the merits of the matter." Neither argument is persuasive.

         (a) Magnolia first asserts that the contempt order did not relate to the merits of the underlying contract and trade secrets lawsuit between Magnolia and Langford, but rather to the "ancillary" matter of contempt by Langford's attorney. See Brown v. King, 266 Ga. 890, 890 (472 S.E.2d 65) (1996) (holding that "a contempt action to enforce court-ordered child support payments is an independent proceeding that is ancillary to the divorce action [in which the order was entered] and not a new civil action").[3] But even if we ignore the connections between the contempt proceeding and the underlying lawsuit - including the common caption and case number used for both - the motion to recuse that Mondy filed sought to disqualify the trial judge not only from continuing to preside over the lawsuit against Langford but also from taking further action on the contempt motion brought against Mondy based on the judge's alleged prejudice against Mondy. Indeed, the judicial action that Mondy challenges in this Court is the trial judge's failure to recuse and subsequent entry of the order holding Mondy in contempt, not any action on the substance of the underlying lawsuit.

         Thus, even if the contempt proceeding was entirely collateral to the underlying lawsuit, it is the contempt motion that qualifies as the "matter" on the merits of which the recusal motion sought to prevent the trial judge from acting further. Indeed, under Magnolia's argument, trial judges would have free reign to ignore motions to recuse them from adjudicating contempt proceedings ancillary to underlying lawsuits, even though contempt proceedings often heighten concerns about judicial impartiality because they involve claims that the alleged contemnor has willfully violated the authority or order of the court itself. See, e.g., In re Crane, 253 Ga. 667, 668-669 (324 S.E.2d 443) (1985) (discussing when a judge must disqualify himself from a proceeding on criminal contempt as a matter of due process).[4]

         (b) Magnolia's second argument that the contempt order was not an action "upon the merits" of the matter mirrors the Court of Appeals' conclusion that the entry of the order was a mere "administrative process that effectuated a ruling made before Mondy filed his motion to recuse." Mondy, ...

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