SUBSTITUTE MEMORANDUM OPINION
The court's memorandum opinion issued July 29, 2010, is withdrawn, and this substitute memorandum opinion is issued in its place.
KEM THOMPSON FROST, Justice.
Appellants/plaintiffs, former owners of a wholesale importation and distribution business appeal the trial court's summary judgment in favor of the appellees/defendants, one of whom purchased most of the assets of one of the appellants' companies at a foreclosure sale. The record reflects that, in response to the appellees' no-evidence summary-judgment grounds, the appellants failed to raise a genuine issue of material fact to preclude summary judgment as to their claims. Accordingly, we affirm the trial court's judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellants/plaintiffs Charles So. T. Chea and Diana Chea, as owners of several different business entities, were engaged in the wholesale seafood importation and distribution business in Houston for many years. One of the Cheas' companies, American General Food Corporation ("American General") had a $2 million line of credit ("Line of Credit") from Texas First National Bank ("Bank") secured by a security interest in most of American General's assets, including inventory, equipment, and accounts receivable. By the summer of 2002, the Cheas' businesses were in financial distress, and they were in default on the Line of Credit. On August 3, 2002, the Cheas entered into a contract (the "Contract") with Paul Poon that contained the following salient terms:
1. The parties will form a holding company probably in the form of a Limited Liability Partnership. There will be two partners. The first partner will be a corporation or a Limited Liability Company owned thirty percent (30%) by [the Cheas] and seventy percent (70%) by [Poon]. The entity will be named J.R.P. ENTERPRISES, L.L.P. and will be the real estate side of the business.
The second partner will be a corporation or a Limited Liability Company owned thirty percent (30%) by [the Cheas] and seventy percent (70%) by [Poon]. The entity will be named MARINE FOODS EXPRESS, L.L.P., which will be the part of the business that distributes and markets various wholesale food products to the restaurant and food markets.
2. MARINE FOODS EXPRESS, L.L.P. will assume the note with TEXAS FIRST NATIONAL BANK which involves American General Food Corporation, Cheas, Inc. d/b/a Captain Charlie Seafood, [and] Great Ocean, Inc. It will assume liability on the Two Million Dollars ($2,000,000.00) line of credit to TEXAS FIRST NATIONAL BANK and will include all accounts receivable,
inventories, and all other fixed assets (equipment, furniture, fixtures, etc.).
3. Accounts receivable and inventory will be verified by independent appraisers with a minimum of 1.5 million dollars in value. If the value does not reach 1.5 million dollars then it will be worked out between [the Cheas] and [Poon].
4. POON shall inject Five Hundred Thousand and No/100 Dollars ($500,000.00) in cash at the time of closing. If necessary POON will inject another Four Hundred Thousand and No/100 Dollars ($400,000.00) by loan to MARINE FOODS EXPRESS, L.L.P. for additional capital.
. . .
6. MARINE FOODS EXPRESS will pay DIANA CHEA Seventy Thousand and No/100 Dollars ($70,000.00) annual salary and ten percent (10%) of the net annual income as a bonus. Fifty Thousand and No/100 Dollars ($50,000.00) will be advanced to DIANA CHEA paid monthly as prepaid annual bonus for the first year. In any case [sic] the net income results in a bonus of more than Fifty Thousand and No/100 Dollars ($50,000.00) the company will pay the difference. In any case [sic] the net annual income results in a bonus of less than Fifty Thousand and No/100 Dollars ($50,000.00) the amount over paid will be deducted from the next year's bonus. [The Cheas] will be directors of MARINE FOODS EXPRESS.
. . .
8. TEXAS FIRST NATIONAL BANK must approve in writing all transactions that have any affect [sic] on existing notes and/or collateral, assumption of debts, assets, and any other issue involving TEXAS FIRST NATIONAL BANK.
. . .
11. MARINE FOODS EXPRESS, L.L.P. agrees to pay [the Cheas] Two Hundred Thousand and No/100 Dollars ($200,000.00), in cash, at the closing.
Neither of the two proposed entities — J.R.P. Enterprises L.L.P. and Marine Foods Express, L.L.P. ("Marine Foods LLP") — was ever formed. However, on August 2, 2002, Paul Poon's sons, Jason and Raymond, formed Marine Foods Express, Ltd. ("Marine Foods Ltd."), whose name is very similar to Marine Foods LLP's name. Because it was never formed, Marine Foods LLP could not assume or attempt to assume liability on the Line of Credit. No closing under the Contract ever occurred. On September 26, 2002, the Bank foreclosed upon its security interest and sold American General's assets to Marine Foods Ltd. for $2 million. On November 25, 2002, the Cheas' companies, including American General, filed for protection under Chapter 7 of the United States Bankruptcy Code.
Diana Chea was employed as the general manager of Marine Foods Ltd. at some point subsequent to its formation, but Marine Foods Ltd. terminated her employment in June 2006. On August 2, 2006, the eve of the fourth anniversary of the execution of the Contract, the Cheas filed suit against appellees/defendants Paul Poon, Jason Poon, Raymond Poon, and Marine Foods Ltd. (collectively the "Poon Parties"). The Cheas alleged the following in support of their claims for fraud, conspiracy, breach of contract and breach of an employment contract: • The Cheas entered into the Contract to form a new business entity to acquire and continue the seafood importation and distribution business that had been conducted by the Cheas. Paul Poon promised to form a new business entity with the Cheas to conduct a wholesale food product importation and distribution business, 30% of which would be owned by the Cheas and 70% of which would be owned by Paul Poon. This entity was to be known as "Marine Foods Express L.L.P."
• Paul Poon also promised that the Cheas would be paid $200,000 in cash at closing and that Marine Foods LLP, the new business entity, would employ Diana Chea as its general manager at an annual salary of $70,000, plus 10% of the net annual income as a bonus. In reliance upon these promises, the Cheas agreed to enter into the new business arrangement and effectively to sell Paul Poon their existing wholesale food products business.
• Paul Poon did not honor his promises, either to form the new business entity with the Cheas as 30% owners or to pay the Cheas $200,000 at closing. Instead, without the Cheas' knowledge, Paul conspired with Jason and Raymond to form another company to operate the Cheas' wholesale food interest, Marine Foods Ltd. The Cheas were deprived of any ownership interest in this company.
• The Poon Parties continuously have refused to (1) convey to the Cheas a 30% ownership interest in Marine Foods Ltd., (2) pay the Cheas 30% of the profits from Marine Foods Ltd.'s business, and (3) pay Diana Chea the agreed-upon bonus of "10% of the company net annual income." The Poon Parties also caused Diana Chea's employment as general manager of Marine Foods Ltd. to be terminated without just cause, causing Diana Chea to lose her guaranteed salary and share of the net profits.
• Paul Poon engaged in fraud by making numerous promises to the Cheas with no present intention to perform. These promises induced the Cheas to enter into the Contract.
• The Poon Parties conspired with one another to defraud the Cheas of their ownership in the "Marine Foods Express business."
• Paul Poon breached the Contract because "Marine Foods Express" failed to pay the Cheas $200,000 at closing as promised in the Contract.
• The Poon Parties promised to employ Diana Chea as general manager of the Marine Foods operation. The Poon Parties breached their promises by terminating Diana Chea's employment without just cause in June 2006, which caused Diana Chea damages.
• Based on these allegations, the Cheas sought the imposition of a constructive trust, an accounting, actual damages, exemplary damages, attorney's fees, and prejudgment and postjudgment interest.
The Poon Parties answered the Cheas' lawsuit with verified denials, asserting that (a) no enforceable agreement arose because the Cheas failed to furnish the $1.5 million in accounts receivable and inventory referenced in the Contract and (b) Diana Chea's employment with Marine Foods Ltd. was terminated because, among other things, she abused her position and misappropriated confidential information for the benefit of her son's company, All Harvest Trading, LLC ("All Harvest"). The Poon Parties also counter-sued the Cheas, joining All Harvest as a third-party defendant. The Poon Parties asserted claims against the Cheas and All Harvest for misappropriation of trade secrets, breach of fiduciary duty, tortious interference with business relations, conspiracy, and defamation. They also sought injunctive relief.
The Poon Parties filed an amended summary-judgment motion, seeking a traditional summary judgment as well as a no-evidence summary judgment. The Poon Parties asserted that there is no evidence of the following: (1) all essential elements of the fraud claim, (2) all essential elements of the conspiracy claim, (3) all essential elements of the breach-of-contract claim except for the existence-of-a-contract element, and (4) all essential elements of the breach-of-employment-contract claim. The Cheas filed a response, with affidavits attached from both Charles and Diana Chea.
The trial court granted the Poon Parties' summary-judgment motion on June 10, 2008. This judgment was not final because it did not dispose of the Poon Parties' pending counterclaims and third-party claims. However, on June 30, 2008, the Poon Parties nonsuited these claims, and on July 21, 2008, the trial court signed an order of nonsuit. When they nonsuited their claims, the Poon Parties also moved for entry of final judgment, attaching a proposed judgment. On July 25, 2008, the trial court signed the proposed final judgment submitted by the Poon Parties. The Cheas filed a motion for new trial within thirty days of the July 25, 2008 judgment but not within thirty days of the July 21, 2008 order. In response, the Poon Parties asserted that the trial court lacked plenary power because the trial court had rendered a final judgment on July 21, 2008, and its plenary power had expired before the motion for new trial was filed. In reply, the Cheas asserted that any prior final judgment had been modified by the July 25, 2008 final judgment and, in the alternative, the Cheas filed a motion under Texas Rule of Civil Procedure 306a as to the July 21, 2008 order. The trial court did not expressly rule on any post-judgment motions.
II. ISSUES AND ANALYSIS
In two issues, the Cheas assert first that their post-judgment motions were timely filed and second that the trial court erred in granting summary judgment in favor of the Poon Parties.
A. Does this court have jurisdiction over this appeal?
In their first issue, the Cheas assert that their motion for new trial and notice of appeal were filed timely and therefore this court has appellate jurisdiction. In response, the Poon Parties contend that the trial court's summary judgment became final on July 21, 2008, when the court signed its nonsuit order. Thus, they argue that the Cheas' motion for new trial, filed more than thirty days later on August 25, 2008, was a legal nullity. According to the Poon Parties, because the Cheas' motion for new trial was a legal nullity, there was no extension of the time to file a notice of appeal, and the Cheas' notice of appeal, filed on October 23, 2008, was likewise late. Thus, the Poon Parties assert that this court lacks jurisdiction over this appeal. We disagree.
When the trial court signed the nonsuit order on July 21, 2008, there was a final judgment because the trial court had actually disposed of all claims and parties before the court. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192, 200 (Tex. 2001). However, "if a judgment is modified, corrected or reformed in any respect, the time for appeal shall run from the time the modified, corrected, or reformed judgment is signed." TEX. R. CIV. P. 329b(h).
The trial court rendered a judgment on July 25, 2008, in which it stated that it had granted summary judgment as to the Cheas' claims and that the Poon Parties had nonsuited their claims. The trial court then rendered judgment on July 25, 2008, that all the relief requested by the parties was denied, and the court stated that the judgment was final and disposed of all claims and parties. The trial court issued this judgment while it still had plenary power over the case, and there is no indication that the trial court issued this judgment solely for the purpose of extending the appellate timetable.
Under these circumstances, the prior final judgment was modified by the July 25, 2008 judgment, and the appellate timetables then began to run from the July 25, 2008 judgment. See TEX. R. CIV. P. 329b(h); Mackie v. Mackie, 890 S.W.2d 807, 808 (Tex. 1994) (per curiam). Because the Cheas filed their motion for new trial within thirty days of this modified final judgment, their motion was filed timely. See TEX. R. CIV. P. 329b(a), (h). Likewise, the Cheas timely filed their notice of appeal within ninety days after the trial court's modified judgment. See TEX. R. APP. P. 26.1(a) (stating that, when a motion for new trial has been timely filed, a party must file its notice of appeal within ninety days of the judgment). We thus have jurisdiction over this appeal.
We need not and do not consider whether the trial court erred in failing to conduct an evidentiary hearing based on the Cheas' motion under Texas Rule of Civil Procedure 306a.
B. Did the trial court properly grant summary judgment?
The Cheas assert that the trial court erred in granting summary judgment in favor of the Poon Parties because they did not conclusively prove any affirmative defense or negate any challenged elements in their motion for summary judgment. Additionally, the Cheas contend that more than a scintilla of evidence exists as to the Cheas' fraud, breach-of-contract, conspiracy, and breach-of-employment-contract claims; thus, the Cheas argue that summary judgment was also improper on the no-evidence grounds. We first review the no-evidence grounds.
1. Standard of Review
In reviewing a no-evidence summary judgment, we ascertain whether the nonmovant pointed out summary-judgment evidence raising a genuine issue of fact as to the essential elements attacked in the no-evidence motion. Johnson v. Brewer Pritchard, P.C., 73 S.W.3d 193, 206-08 (Tex. 2002). In our de novo review of a trial court's summary judgment, we consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam). When, as in this case, the order granting summary judgment does not specify the grounds upon which the trial court relied, we must affirm the summary judgment if any of the independent summary-judgment grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
2. No Evidence of Causation as to the Fraud Claim
To prevail on their fraud claim, the Cheas must prove, among other things, damages resulting from their alleged reliance upon a misrepresentation by one or more of the Poon Parties. See Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 636 (Tex. 2007) (stating that damages for common-law fraud are either direct damages, which compensate for the loss that is the necessary and usual result of the defendant's wrongful act, or consequential damages, which result naturally from the defendant's wrongful act). The only alleged misrepresentations asserted by the Cheas were the promises made by Paul Poon in the Contract. The Poon Parties asserted in their summary-judgment motion that there is no evidence of fraud damages and no evidence that the Poon Parties caused damage to the Cheas.
The Cheas assert that at the time Paul Poon signed the Contract, he had no intention of performing these promises. In the Contract, the parties agreed that they would (1) form new companies, including Marine Foods LLP, (2) have Marine Foods LLP assume American General's obligations under the note and the Line of Credit with the Bank, and (3) take various actions at the closing of this transaction. However, no closing and no assumption of liability under the Line of Credit could occur without the Bank's written approval. The parties stated this requirement of Bank approval in the Contract. Therefore, even if Paul Poon and the Cheas had fully performed their promises and obligations under the Contract, there would be no assumption and no closing absent written approval by the Bank.
However, on appeal, the Cheas do not argue that the Bank would have given written approval for such an assumption, and the summary-judgment evidence does not raise a genuine fact issue in this regard. In his two affidavits, Charles Chea testified in pertinent part as follows:
Mr. Poon expressly agreed to have the new company assume the liability for the Texas First National Bank debt, which would have prevented Texas First National Bank from foreclosing on its lien, and would have preserved the assets of Marine Foods['] business for the new entity that Mr. Poon promised to form with us. In short, if Mr. Poon had complied with his obligations, there would have been no foreclosure sale of the assets at all.
. . .
[W]here Mr. Poon promised to have the Texas First National Bank debt assumed by the new company that was to be formed pursuant to the [Contract], and then failed to perform that promise, but instead knowingly allowed his sons' partnership to assume the debt instead, the foreclosure sale occurred only because of the Poons' repudiation of their obligations.
In his testimony, Charles Chea does not provide any evidence that the Bank would have approved an assumption of liability under the Line of Credit by Marine Foods LLP. Rather, he states in a conclusory fashion that, if Paul Poon had performed his obligations under the Contract, there would have been no foreclosure sale of the assets of American General. These conclusory statements do not raise a genuine fact issue as to whether the Bank would have approved the transaction. See Coastal Transport Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004) (stating that even unobjected-to conclusory testimony does not raise a fact issue); Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex. App.-Houston [14th Dist.] 2000, pet. denied) (explaining that conclusory allegations in affidavits are insufficient to raise a fact issue).
In their affidavits, both of the Cheas testify that they have been damaged by the Poon Parties' failure to pay the $200,000 that, in the Contract, Marine Foods LLP promised to pay the Cheas at closing. However, no closing could occur without the Bank's approval, and there is no evidence that the Bank would have approved.
The Poon Parties asserted no-evidence grounds as to all of the elements of the fraud claim. The Poon Parties were not required to specifically assert that there was no evidence that the Bank would have approved the transaction. See Chrismon v. Brown, 246 S.W.3d 102, 113 n. 12 (Tex. App.-Houston [14th Dist.] 2007, no pet.).
As to the Cheas' fraudulent inducement claim, presuming that there were false representations upon which the Cheas justifiably relied in entering into the Contract, the Cheas still would have to raise a fact issue as to whether their entering into the Contract caused the Cheas' alleged damages. In their appellate brief, the Cheas state that,: "Had Appellees not defrauded the Cheas, the Cheas could have looked for and possibly found another business partner to work with them and save their business." (emphasis added). However, there is no summary-judgment evidence that raises a fact issue in this regard.
Under the applicable standard of review, even presuming that there was reliance by the Cheas upon alleged misrepresentations by one or more of the Poon Parties, the evidence does not raise a genuine fact issue as to whether any of the Cheas' alleged damages resulted from this reliance. See LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688-89 (Tex. 2006) (per curiam); American Steel Supply, Inc. v. Commercial Metals, Inc., No. 13-08-00502-CV, 2010 WL 877661, at *6 (Tex. App.-Corpus Christi Mar. 11, 2010, pet. denied) (mem. op.). Thus, the summary-judgment record contains no evidence of one of the essential elements of the Cheas' fraud claim, and the trial court did not err in granting summary judgment as to the fraud claim.
3. No Evidence of Conspiracy
The Cheas' civil conspiracy claim requires an underlying tort claim. See Ernst Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 583 (Tex. 2001). The only underlying tort they have alleged is fraud. Because summary judgment was proper as to the fraud claim, it was also proper as to the Cheas' civil conspiracy claim. See id.
Therefore, the trial court did not err in granting summary judgment as to this claim.
4. No Evidence that Alleged Breach of Contract Caused Damages
To recover damages for breach of contract, the Cheas would have to prove damages resulting from the alleged breaches of contract. See Clearview Prop., L.P. v. Prop. Tex. SC One Corp., 287 S.W.3d 132, 139-40 (Tex. App.-Houston [14th Dist.] 2009, pet. denied). The Poon Parties asserted, among other things, that the Cheas had no evidence that the Cheas' damages, if any, resulted from the Poon Parties' alleged breaches of the Contract. For the same reasons as discussed above in section II.B.2 of this opinion, we conclude that the evidence does not raise a genuine fact issue as to whether the Cheas' alleged contract damages resulted from the Poon Parties' alleged breaches of contract. See id. Because there is no evidence of an essential element of the Cheas' breach-of-contract claim, the trial court did not err in granting summary judgment as to this claim.
5. No Evidence of Breach of Employment Contract
In Texas, absent a specific contract term to the contrary, employment contracts are terminable at will by either party. See Cruikshank v. Consumer Direct Mortgage, Inc., 138 S.W.3d 497, 501 (Tex. App.-Houston [14th Dist.] 2004, pet. denied). Thus, to succeed on her breach-of-employment-contract claim, Diana Chea would have to prove, among other things, that she and her employer had a contract that specifically provided that the employer did not have the right to terminate her employment at will. See id.
In their motion for summary judgment, the Poon Parties asserted that the Cheas had no evidence of an employment contract between Diana Chea and any of the Poon Parties specifically providing that the employer did not have the right to terminate Diana Chea's employment at will. There is no summary-judgment evidence that Paul Poon, Jason Poon or Raymond Poon ever employed Diana Chea. There is summary-judgment evidence that Marine Foods Ltd. employed Diana Chea. However, the Contract is not an employment agreement between Marine Foods Ltd. and Diana Chea, and there is no summary-judgment evidence raising a fact issue as to the existence of a contract specifically providing that Marine Foods Ltd. did not have the right to terminate Diana Chea's employment at will. The Cheas instead rely upon provisions of the Contract between Paul Poon and the Cheas, excerpted above, regarding Marine Food LLP's anticipated employment of Diana Chea. These provisions are not binding on Marine Foods Ltd., which was not a party to the Contract.
In any event, even if the Contract had required Marine Foods Ltd. to employ Diana Chea under the terms stated in the Contract, there is no provision anywhere in the Contract that Diana Chea's employer did not have the right to terminate her employment at will. Diana Chea failed to raise a genuine fact issue as to an essential element of her breach-of-employment-contract claim, and the trial court did not err in granting summary judgment as to this claim. See id.
III. CONCLUSION
Because the trial court's July 25, 2008 judgment modified its prior final judgment, this court has jurisdiction over this appeal. The Cheas cannot prevail on appeal because they failed to raise a genuine fact issue as to an essential element of each of their claims. Thus, the trial court did not err in granting summary judgment based on the no-evidence grounds. Accordingly, we overrule the Cheas' second issue and affirm the trial court's judgment.
We need not and do not address the traditional summary-judgment grounds.
(1995) (The asterisks identify terms defined in the Code of Judicial Conduct);
see 2007 Model Judicial Code, Rule 2.11(A) (B).
Appellant argues that the Code of Judicial Conduct required the trial judge to recuse on two independent grounds: 1) because the circumstances surrounding the trial judge's receipt of the two ex parte emails from another judge concerning a witness in the case and the trial judge's disclosure to the parties and response to the recusal motion would cause a reasonable observer to question the judge's impartiality, and therefore violated the general precept of Canon 3(E)(1), and 2) because she acquired "personal knowledge of [a] disputed evidentiary fact[]," one of the specific situations identified in the Judicial Code under subsection (a) as requiring disqualification. We agree that as a result of receiving and reading the emails the trial judge had "personal knowledge" regarding the circumstances surrounding I.W.'s recantation and that such circumstances were "disputed evidentiary facts concerning the proceeding." Thus, Canon 3(E)(1)(a) required that the trial judge recuse from the case. We, therefore, do not find it necessary to address whether the general precept governing the objective appearance of partiality under Canon 3(E)(1) also required recusal.
A. The Standard of Review
The District asserts that M.C. forfeited reliance on Canon 3(E)(1)(a) because his motion for recusal invoked Canon 3(E)(1) but did not specifically cite subsection (a). If the subsection (a) claim is not preserved, the District argues, our review must be for plain error. See, e.g., Moore v. United States, 927 A.2d 1040, 1061 (D.C. 2007) (holding that where there was no objection at trial to an erroneous instruction, the objection was forfeited). The defendant's burden in plain error cases is a "formidable one." Hunter v. United States, 606 A.2d 139, 144 (D.C. 1992) ("[In plain error cases], we will reverse a conviction for error . . . only in an extreme situation in which the defendant's substantial rights were so clearly prejudiced that the very fairness and integrity of the trial was jeopardized.").
We think that the District's contention takes too narrow a view of the recusal motion appellant presented at trial, particularly where the issue before the court involved the judge's ethical obligations under the Judicial Code. In the motion for recusal, defense counsel invoked Canon 3(E)(1), which is the "umbrella" provision and includes its subsections. Therefore, appellant's failure to refer specifically to subsection (a) of Canon 3(E)(1) should not be construed, without more, as intending to renounce reliance on subsection (a). Moreover, as we have had occasion to comment, in the press of trial, counsel might not (and should not be expected to) flesh out their arguments with the precision that the more deliberate appellate process allows — an observation that seems particularly apt where counsel is responding to new facts presented mid-trial. See Randolph v. United States, 882 A.2d 210, 217-18 (D.C. 2005) ("Once a claim is properly presented to the trial court, a party can make any argument in the appellate court in support of that claim; parties are not limited to the precise arguments made below.") (citations omitted; ellipsis and brackets omitted). The determinative factor for purposes of preservation for appellate review is not whether counsel made every conceivable argument, but whether the trial judge was "fairly apprised as to the question on which [she was] being asked to rule." Hunter, 606 A.2d at 144; see, e.g., In re D.L., 904 A.2d 367, 369 n. 2 (D.C. 2006) ("Although counsel did not cite a particular statute that the judge's proposed order would violate, the objection was sufficient to preserve the claim that in effectively closing the case, the judge was exceeding his statutory authority."); Tindle v. United States, 778 A.2d 1077, 1081-82 n. 8 (D.C. 2001) (holding that appellant preserved his Fifth Amendment claim under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), even though his "suppression motion [did] not explicitly reference Edwards ").
Such an inference would be more reasonable if the obverse had been true: reference to only a specific subsection could be inter preted as forgoing reliance on the more general provision.
Our review of the record satisfies us that even if the motion for recusal did not cite the specific subsection on which appellant relies on appeal, the trial judge was informed of the legal principles and facts that underlie the specific prohibition in subsection (a). Appellant's motion not only identified the relevant facts — the receipt of extrajudicial information material to the criminal proceeding pending before the judge — but also emphasized that the issue was not one of actual bias but the objective appearance of bias, and cited relevant precedent.
The motion explained why the trial judge's access to the ex parte communications created an appearance of bias, as follows:
The communication received by the Court gives the appearance of a judicial bias to-ward [M.C.]. Even though[] this Court may harbor no actual bias toward [M.C], the information relayed to the [C]ourt by another Superior Court Judge,
ex parte and in violation of judicial obligations of confidentiality and impartiality, regards an incident directly affecting the credibility of a central government witness, any alleged relationship or encounters between the witness and our client, and alleged prior bad acts by our client, and thus present the appearance of bias toward [M.C].
The motion directed the judge's attention to several relevant cases: Liljeberg; Gibson v. United States, 792 A.2d 1059 (D.C2002); In re J.A., 601 A.2d 69 (D.C1991); Scott; and Mejia v. United States, 916 A.2d 900 (D.C 2007). That the motion was sufficiently precise to identify the issue raised on appeal is confirmed by the government's opposition to the motion. At two points in its memorandum in opposition to M.C.'s motion for recusal, the District recognized that the trial judge had acquired "personal knowledge" of the contents of the emails, using a term used in subsection (a). Moreover, the District's opposition acknowledged that such personal knowledge was relevant to the proceeding and could prejudice appellant "if Judge Broderick based her factual findings or legal conclusions on the information she learned from the e-mail, which was not verified and contained multiple levels of hearsay." See Hunter, 606 A.2d at 144 ("The purpose of requiring a specific objection is to enable the prosecution to respond to any contentions raised. . . ."). The District's failure to appreciate that the relevant test is an objective one (rather than a subjective one) is not attributable to the lack of specific reference to sub-section (a) in the defense motion for recusal, as the objective nature of the inquiry is equally applicable to the general precept of Canon 3(E)(1) and was expressly argued in the defense motion. We, therefore, have no cause to be concerned that either the judge or the government were misled by the fact that the defense motion not make specific reference to subsection (a).
Even were we to consider that the claim, based on subsection (a), was not preserved at all, we have expressed some reservation (but without deciding) "whether plain error is ever an appropriate standard when a claim of judicial bias arising out of conduct during a trial is raised on appeal." In re J.A., supra note 12, 601 A.2d at 75 n. 5 (applying harmless error review where a motion to recuse was filed); see Scott, 559 A.2d at 755-56 (applying harmless error review where no motion was filed and defendant did not know of judge's improper ex parte contacts until after trial). Our reluctance is based on the expectation that judges should be fully aware of their ethical obligations and that, at least in some cases, it might be inappropriate to impose on the defendant the burden to attack a judge's integrity. See Belton, 581 A.2d at 1212 (citing Scott, 559 A.2d at 755-56) (applying harmless error review in absence of objection during sentencing hearing when judge disclosed prejudicial ex parte contacts, noting "the discretionary, virtually non-reviewable act of sentencing"). But we need not decide here whether plain error review is never appropriate even if no objection was made when a claim of disqualification for appearance of impropriety is based on judicial conduct of which the parties were made aware during trial, for this is far from a case where appellant is raising the claim of disqualification for the first time on appeal. At most, appellant is presenting a more nuanced argument in support of the claim he made at trial that the judge must recuse as a result of having received extrajudicial information about a material witness in a proceeding in which the judge was the finder of fact. See Randolph, 882 A.2d at 217-18 (distinguishing between claims and arguments in support of a claim). Because we place particular emphasis and rely on judges' knowledge of their ethical obligations, defense counsel's motion to recuse should have served, at a minimum, as a prompt for further judicial research and consultation to flesh out the ethical requirements demanded by the circumstances of the case. Had that been done, the judge would have easily located the specific provision in subsection (a) that required her disqualification. We, therefore, review the case for harmless error, applying the "special harmless error" test (which we discuss infra, Section III) as set forth by the Supreme Court in Liljeberg, 486 U.S. at 866, 108 S.Ct. 2194, and adopted by this court in Scott, 559 A.2d at 750-51 (noting that "a review of the record for actual prejudice would be inconsistent with the goal of Canon [3(E)] to prevent even the appearance of impropriety").
Judges routinely (and prudently) consult with each other concerning issues of judicial ethics. We note that the District of Columbia Courts have established an Advisory Committee on Judicial Conduct, composed of three judges of the District of Columbia Court of Appeals and two judges of the Superior Court of the District of Columbia, who are appointed by the Joint Committee on Judicial Administration. The Committee and its members are available to all District of Columbia judges for consultation and advice on a confidential basis, either for informal advice or a formal, written opinion. See Order establishing Advisory Committee on Judicial Conduct, dated October 1, 1990.
B. Whether the Trial Judge was Required to Recuse Herself under Canon 3(E)(1)(a)
A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned including, but not limited to instances where:
(a) the judge has . . . personal knowledge of disputed evidentiary facts concerning the proceeding[.]
Code of Judicial Conduct, Canon 3(E)(1)(a); Model Judicial Code, Rule 2.11(A)(1).
1. Personal Knowledge
The parties are agreed that the term "personal knowledge" used in Canon 3(E)(1)(a) means extrajudicial knowledge — knowledge gained "from sources outside the scope of the judge's judicial functions." In re Thompson, 419 A.2d 993, 995 (D.C. 1980); see also United States v. Widgery, 778 F.2d 325, 328 (7th Cir. 1985) ("Knowledge of disputed facts requires disqualification only if the knowledge has an extrajudicial source."). Here, the trial judge's knowledge was the result of email communications from another Superior Court judge. The facts of this case are similar to those of In re Bell, 373 A.2d 232 (D.C. 1977), where we held that a telephone call from another judge concerning a participant in a proceeding constituted an "extrajudicial source" of information. Id. at 235. As in Bell, the trial judge in this case received information concerning a participant in a case before her from another Superior Court judge. Because the information in the email correspondence was not acquired in the course of the judicial proceeding before the trial judge, it constituted "personal knowledge" under Canon 3(E)(1)(a).
The term "knowledge" is defined in the Code of Judicial Conduct. "`Knowingly,` `knowledge,` `known` and `knows' denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances." Code of Judicial Conduct, Terminology; Model Judicial Code, Terminology. There is no dispute that the trial judge read and had actual knowledge of the content of the emails she received from another judge concerning I.W.
On this record, we are not persuaded by the District's suggestion that the email communications might nonetheless have fallen within the scope of the judges' judicial functions, and were, therefore, not "extrajudicial." The District surmises that the other judge might have thought it necessary to inform the trial judge about the confrontation between I.W. and M.C. so that the trial judge could adopt appropriate courtroom security measures, should there be any other violence or attempted intimidation. The District notes, correctly, that this court has observed that for purposes of Canon 3(E)(1), judicial functions are not limited to in-court proceedings, but can also include activities outside the courtroom that are legitimately related to judicial duties. See In re Evans, 411 A.2d 984, 995 (D.C. 1980) ("Essentially, the importance of the distinction lies not in the physical location of the incidents from which bias is alleged to arise, but in the nature of the incidents as inside or outside the scope of official judicial conduct in regard to the instant or a prior case."). Here, however, the record we have does not support that the emails were "necessary in order to enable [the trial judge] to perform [her] continuing duty to conduct an orderly trial and to take appropriate measures designed to protect the participants therein." United States v. Phillips, 664 F.2d 971, 1003 (5th Cir. 1981) (holding that the trial judge was not required to recuse himself, despite his involvement in an investigation of certain defendants' plans "to disrupt the trial proceedings, intimidate witnesses, and attempt to kill the judge himself'). To the extent that the record is incomplete on the subject, that deficiency cannot be laid at the feet of the defendant who has no independent basis to know or discover the circumstances and content of a private communication between judges. As the Commentary to Canon 3(E)(1) makes clear, in the context of potential disqualification the burden of clarifying the record falls on the judge:
A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.
Code of Judicial Conduct, Canon 3(E)(1) cmt; Model Judicial Code, Rule 2.11 cmt. [5].
The trial judge was reluctant to fully lay out for the parties the circumstances surrounding her receipt of the emails and their content, but her statements regarding receipt of the emails are fairly read as indicating that she did not understand the communications to fall within the realm of her judicial functions. The trial judge explained that she had "inadvertently [been given] information which [she] would not want to have about a witness that [she] was presiding over." The trial judge's understandable discomfort was evident from her statements: "[t]hey were emails basically, so nothing I could stop," and following appellant's motion for recusal, she said: "I'm not going to go back and review [the emails] and confirm those because I don't want to look at them again at this time because I don't need to put any more information in there." Moreover, the trial judge indicated that the judge who sent her the emails also might have become discomfited as the situation developed: "I'm not sure at what point, if any, [the other judge] became aware that we were actually in trial with [I.W.]" These statements are all we have and they do not support that the communications were in furtherance of a judicial function. Therefore, on this record we must conclude that the emails were an extrajudicial communication, and thus constituted "personal knowledge" within the meaning of Canon 3(E)(1)(a).
2. Disputed Evidentiary Facts
Having concluded that the emails that were sent to the trial judge provided her with "personal knowledge" regarding I.W.'s recantation, we must determine whether the knowledge related to a "disputed evidentiary fact[]." Code of Judicial Conduct, Canon 3(E)(1)(a); Model Judicial Code, Rule 2.11(A)(1). The District asserts that the emails did not concern a "disputed evidentiary fact" because "the question in these proceedings was whether M.C. was involved in the charged crimes beyond a reasonable doubt, not whether there had been a later altercation between I.W. and M.C." The District concludes, therefore, that "[t]he parties . . . did not need to dispute . . . whether there had been an altercation" between appellant and the recanting I.W. in the Superior Court cell block. We disagree with this characterization of the factual issues before the trial judge.
In this trial, where there was no physical evidence linking the defendant to the shootings, the government's case was dependent upon the testimony of the two eyewitnesses, I.W. and N.W., who identified appellant. Therefore, the credibility of I.W.'s identification of M.C. as the shooter was an evidentiary fact that went directly to M.C.'s guilt. I.W.'s in-court testimony contradicted his identification of M.C. on the night of the shooting. As we have explained previously, when a witness recants, "the trier of fact must decide whether to accept as true the witness's original testimony or revised testimony." Payne v. United States, 516 A.2d 484, 493 (D.C. 1986) (per curiam) ("[C]onflicts created by a witness' recantation, like other internal inconsistencies within a witness' testimony, are factual questions for the jury to resolve."). Here, the decision of the trial judge, as fact-finder, to accept or reject I.W.'s trial testimony was inextricably linked to her assessment of why I.W. decided to recant his previous identification. The government tried and failed to elicit from I.W. at trial that the reason for his recantation had to do with a confrontation he had with M.C., but I.W. denied it. The information contained in the emails the trial judge received — that I.W. had been in a "physical altercation" with M.C. that resulted in his being "separated from [M.C] in the cellblock" — provided the very information that the District had been unable to elicit from I.W. at trial. The email's information that the physical altercation had taken place in the courthouse cell block also conveyed that it had been close in time and place to I.W.'s testimony, adding crucial context with which to question I.W.'s recantation, and thus tended to strengthen the government's case.
In its opposition to appellant's motion for recusal, the District added that I.W. was then "held in protective custody by the Department of Youth Rehabilitation Services," further suggesting that I.W. had been threatened by M.C.
This case is distinguishable from Plechner v. Widener College, Inc., 569 F.2d 1250 (3d Cir. 1977), on which the District relies. In Plechner, the court held that a judge's acquaintance with a witness whom he had met through the American Bar Association "in the normal practice of law" did not amount to "personal knowledge of disputed evidentiary facts" within the scope of 28 U.S.C. § 455(b)(1), the federal corollary to Canon 3(E)(1)(a). Id. at 1262-63. The United States Court of Appeals for the Third Circuit explained:
28 U.S.C. § 455 (1974) provided in pertinent part:
(a) Any justice, judge, magistrate, . . . of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances:
(1) Where he has personal bias or prejudice concerning a party,
or personal knowledge of disputed evidentiary facts concerning the proceeding. . . .
28 U.S.C. § 455 (emphasis added).
The disqualification provision is directed toward knowledge of disputed evidentiary facts, that is, matters underlying the cause of action. We do not understand the statutory language to be directed toward routine judgments of credibility. Such an interpretation would require all the judges in many districts to be disqualified in the most pedestrian of cases if they had some previous contact with a witness.
Plechner, 569 F.2d at 1263;
see also Parrish v. Board of Comm'rs of Alabama State Bar, 524 F.2d 98, 104 (5th Cir. 1975) (commenting that under § 455(b)(1), "[c]redibility choices are not disputed facts").
Here, in contrast to Plechner, the extra-judicial information that the trial judge received about the witness did not relate solely to a "routine judgment[] of credibility," Plechner, 569 F.2d at 1263, nor was this a situation in which the trial judge had "[m]ere prior knowledge of some facts" concerning a witness's behavior and demeanor from a previous hearing. United States v. Seiffert, 501 F.2d 974, 978 (5th Cir. 1974) (holding that "intangible impressions" of a party's "demeanor and candor" that the judge "might have obtained" at a previous meeting did not "constitute a connection or relationship to a party sufficient to make it improper to sit at the trial on the merits"). Although we agree with the court's observation in Plechner that judges should not be required to disqualify themselves "in the most pedestrian of cases" merely as a result of "some previous contact with a witness," 569 F.2d at 1263, the record before us indicates not that the judge had overall impression of a witness from some previous ordinary contact, but that during the course of trial the judge received important information relating to a specific incident between the witness and the defendant that might explain why the witness recanted his prior identification of the defendant. The witness's recantation of his prior identification went to a central issue in the government's case against M.C. — the identity of the shooter — making I.W.'s trial recantation a "disputed evidentiary fact." Code of Judicial conduct, Canon 3(E)(1)(a); Model Judicial Code, Rule 2.11(A)(1).
The District raises the concern that requiring the trial judge to recuse herself here will require disqualification "every time a judge has some personal knowledge that bears in some fashion upon a proceeding." We think that is a Chicken Little overstatement. As our prior cases make clear, a judge's decision to recuse herself — or her refusal to do so — is highly fact-specific, and we have reached our conclusion in this case only after careful examination of the record, in particular the factual issues that were presented to the trial judge for decision and the nature and content of the information that she received. It is of particular importance to this case that the trial judge was the fact finder, and that it was her role to evaluate I.W.'s recantation at trial concerning the central issue in the case: who fired the shots? The District's case was predicated on the testimony of two eyewitness: I.W., who at trial recanted his prior identification of appellant; and N.W., who repeatedly and positively identified appellant as the shooter, but gave inconsistent (and ultimately disproven) accounts of the circumstances surrounding the shooting, which raised questions about his credibility. I.W.'s trial recantation, if credited by the trial judge, might therefore have created a reasonable doubt as to the accuracy of N.W.'s identification of M.C. as the shooter. The trial judge dispelled doubts raised by N.W.'s inconsistent statement and appears to have easily discounted I.W.'s trial recantation (she did not mention it), relying on N.W.'s identification, which she considered "corroborated" by I.W. — an obvious reference to the prior identification that I.W. recanted at trial. The emails to the trial judge, which contained facts that were highly relevant to the judge's assessment of the veracity of I.W.'s trial recantation, thus bore directly on the merits of the prosecution's case and cannot be dismissed as "tangential" or merely related "in some fashion" to the proceedings as the government asserts; or simply as "some previous contact with a witness," Plechner, 569 F.2d at 1263. It is unlikely that similar circumstances will often be replicated, but where a judge does come to have — no matter how — extrajudicial "personal knowledge" of a "disputed evidentiary fact[]," as we conclude was the case here, the trial judge is required to recuse herself under subsection (a) of Canon 3(E)(1); Model Judicial Code, Rule 2.11(A)(1). See York v. United States, 785 A.2d 651, 656 (D.C. 2001) ("The Code of Judicial Conduct requires recusal when `the judge has . . . personal knowledge of disputed evidentiary facts concerning the proceeding.'" (quoting Code of Judicial Conduct, Canon 3(E)(1)(a))); see also United States v. Alabama, 828 F.2d 1532, 1545 (11th Cir. 1987) (per curiam) ("[A] judge cannot be, or cannot appear to be, impartial if he has personal knowledge of evidentiary facts that are in dispute." (quoting E. Wayne Thode, Reporter's Notes to Code of Judicial Conduct 62 (1973))).
As mentioned above, N.W.'s trial testimony that he had been chased by only one person, M.C., was contradicted by the officers' testimony that N.W. had told the police that he had been chased by a large group of boys just before the shooting. At trial, N.W. testified that the chase had taken place earlier in the day not right before the shooting. D.W. testified that he was never chased; I.W. was not asked about the chase he had reported earlier. Moreover, Detective Williams testified that N.W. and I.W. provided detailed descriptions of four of the boys who allegedly chased them. The police were able to locate only one of the four suspects and he was found to have had no involvement in the alleged chase.
We want to make clear that appellant did not suggest at trial and does not contend before this court that there was any bias or improper motive on the part of either the trial judge or the judge who sent the email communications. Nor do we doubt that the trial judge in good faith believed herself capable of compartmentalizing the information she learned through extrajudicial means. But this introspective analysis is largely irrelevant under Canon 3(E)(1), which examines whether a judge's impartiality reasonably might be questioned from the perspective of an objective observer. Moreover, subsection (a) of Canon 3(E)(1) mandates that once a judge has "personal knowledge" of a "disputed evidentiary fact[]," she "shall" recuse herself. Code of Judicial Conduct, Canon 3(E)(1)(a) ("The Judge shall disqualify himself or herself in a proceeding . . . where the judge has . . . personal knowledge of disputed evidentiary facts concerning the proceeding." (emphasis added)); Model Judicial Code Rule 2.11(A)(1). Thus, recusal is required where the judge's impartiality would "reasonably be questioned," including in the specific instance identified in subsection (a). 3. Judge's Obligation to Disclose; Remittal of Disqualification
Ex parte communications are prohibited under the Code of Judicial Conduct, with some limited exceptions. See Code of Judicial Conduct, Canon 3(B)(7) ("A judge shall not initiate, permit, or consider ex parte communications or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that. . . ."); Model Judicial Code, Rule 2.9. The Code of Judicial Conduct expressly provides an exception for consultations "with other judges," Canon 3(B)(7)(c), but as the Commentary makes clear, "[a] judge must not independently investigate facts in a case and must consider only the evidence presented." See also Harris v. United States, 738 A.2d 269, 277 (D.C. 1999) (defining ex parte communications as "those that involve fewer than all of the parties who are legally entitled to be present," and explaining that such communications are prohibited to "ensure that `every person who is legally interested in a proceeding [is given the] full right to be heard according to law`") (alteration in original) (quoting Jeffrey M. Shaman et al. Judicial Conduct and Ethics 149 (2d ed. 1995) (quoting ABA Model Code of Judicial Conduct, Canon 3(A)(4) (1972))). The Model Judicial Code addresses the issue more directly: "A judge may consult . . . with other judges, provided the judge makes reasonable efforts to avoid receiving factual information that is not part of the record, and does not abrogate the responsibility personally to decide the matter." Rule 2.9(A)(3). The issue for purposes of recusal under Canon 3(E)(1)(a), however, is not whether the email communications between the judges were improper per se but the consequences that flow from them.
The fact that the source of the information is extrajudicial is an essential component of the appearance of impartiality analysis. It is a crucial distinction from situations where evidence is presented and then excluded in the course of trial after adversarial discussion and an on-the-record ruling. In most such situations, the fact finder (be it judge or jury) is expected not to take the evidence into account or to use it only for limited purposes. Moore v. United States, 609 A.2d 1133, 1136 (D.C. 1992) (noting "the well-recognized `presumption that a trial judge, in deciding a case without a jury, will disregard any inadmissible evidence and any improper argument. . . .'" (quoting Singletary v. United States, 519 A.2d 701, 702 (D.C.I987))); Coleman v. United States, 779 A.2d 297, 303 (D.C. 2001) ("It is, of course, the `almost invariable assumption of the law that jurors follow their instructions.'" (quoting Plater v. United States, 745 A.2d 953, 959 (D.C. 2000))). There are, however, circumstances in which "the destruction of the appearance of impartiality" can "strain the presumption that the trial judge considered only relevant and admissible evidence beyond the breaking point." Banks v. United States, 516 A.2d 524, 528 (D.C. 1986) (discussing several cases in which judges should have recused themselves after learning incriminating evidence about criminal defendants).
The Commentary to Canon 3(E)(1) states:
Under this rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless whether any of the specific rules in Section 3E(1) apply. For example, if a judge were in the process of negotiating for employment with a law firm, the judge would be disqualified from any matters in which that law firm appeared, unless the disqualification was waived by the parties after disclosure by the judge.
Code of Judicial Conduct, Canon 3(E)(1) cmt.; Model Judicial Code, Rule 2.11 cmt. [1].
There is a very limited exception, not applicable here, to the rule of mandatory disqualification. "By decisional law, the rule of necessity may override the rule of disqualification." Canon 3(E)(1), cmt.; Model Judicial Code, Rule 2.11, cmt. [3]. See United States v. Will, 449 U.S. 200, 101 S.Ct. 471, 66 L.Ed.2d 392 (1980) (holding that where every Article III judge had an interest in the outcome of the case, the common law rule of necessity prevailed).
A. Disclosure on the Record
We address two issues related to disqualification. Neither party asked the trial judge to place the emails on the record, with the result that both parties' arguments and our analysis are therefore based on the information that the trial judge disclosed orally on two different occasions during trial. As noted, these disclosures were limited by the trial judge's reluctance to reread emails she considered to be problematic in a situation not of her own making. We understand the trial judge's reluctance as an attempt to avoid the taint of actual bias resulting from extrajudicial information about a trial witness. But, as already discussed, the ethical issue of disqualification that appellant presented was not premised on personal bias but on whether an objective "fully informed" observer would have reasonable cause to question the judge's ability to perform her judicial function with impartiality. Scott, 559 A.2d at 750. For this reason, the Judicial Code places on the judge an independent responsibility to "disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification." Code of Judicial Conduct, Canon 3(E)(1) cmt. (emphasis added); Model Code, Rule 2.11 cmt. [5]. Thus, even if the trial judge's own analysis of Canon 3(E)(1) led her to conclude that she was not required to recuse herself, she should have provided copies of the relevant parts of the email communications to the parties and made them a part of the record on appeal.
B. Remittal of Disqualification
Where, as here, a judge is not influenced by "personal bias or prejudice concerning a party" and she believes she is capable of proceeding impartially, the parties are given the opportunity under Canon 3(F) to waive a disqualification that would otherwise require recusal under Canon 3(E). The judge plays no part in the waiver decision, which is decided solely by the parties. Again, however, the Code places a disclosure obligation on the judge so that the parties may knowingly exercise the waiver option: "A judge disqualified by the terms of Section 3E may disclose on the record the basis of the judge's disqualification and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification." Code of Judicial Conduct, Canon 3(F); Model Judicial Code, Rule 2.11(C). Therefore, even if the judge in this case had properly analyzed the situation as requiring recusal, she could have initiated the remittal procedure, but only after making a full disclosure on the record of the emails so that both parties could make an informed decision about whether to waive the judge's disqualification.
Canon 3(F) states in full:
F. Remittal of Disqualification: A judge disqualified by the terms of Section 3E may disclose on the record the basis of the judge's disqualification and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If following disclosure on any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. The agreement shall be incorporated in the record of the proceeding.
Commentary:
A remittal procedure provides the parties an opportunity to proceed without delay if they wish to waive the disqualification. To assure that consideration of the question of remittal is made independently of the judge, a judge must not solicit, seek or hear comment on possible remittal or waiver of the disqualification unless the lawyers jointly propose remittal after consultation as provided in the rule. A party may act through counsel if counsel represents on the record that the party has been consulted and consents. As a practical matter, a judge may wish to have all parties and their lawyers sign the remittal agreement.
Code of Judicial Conduct, Canon 3(F); Model Judicial Code, Rule 2.11(C).
III. Special Harmless Error Test
A judge's failure to recuse as required by the Judicial Code does not lead to automatic reversal; prejudice must be shown. Bearing in mind that "to perform its high function in the best way `justice must satisfy the appearance of justice,`" the Supreme Court in Liljeberg devised a special harmless error test to determine whether relief should be granted where a judge does not recuse as required. Liljeberg, 486 U.S. at 864, 108 S.Ct. 2194 (quoting In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955)). We have adopted Liljeberg's special harmless error test. See Scott, 559 A.2d at 750-51 (en banc). Under the Liljeberg test, we consider three factors: "[1] the risk of injustice to the parties in the particular case, [2] the risk that the denial of relief will produce injustice in other cases, and [3] the risk of undermining the public's confidence in the judicial process." Id. at 752-53. We address each of these factors and conclude that the trial judge's denial of the motion to recuse was not harmless.
Applying the first prong of the Liljeberg test, we conclude that the risk to M.C. is considerable and the corresponding risk to the government is minimal. M.C. has been found to have committed twenty serious crimes that would be felony convictions if this had been a criminal prosecution. The trial judge, who was sitting as the sole trier-of-fact, acquired personal knowledge of a disputed evidentiary fact — the circumstances surrounding I.W.'s recantation — without evaluation of its admissibility (it was hearsay) or the rigors of cross-examination. The trial judge acquired this information contemporaneously with I.W.'s trial recantation, shortly before deciding M.C.'s guilt. Under the circumstances, M.C. reasonably could question whether the trial judge's verdict was influenced, at least in part, by the extrajudicial information that she had received. Cf. Foster v. United States, 615 A.2d 213, 220 (D.C. 1992) (noting that sentencing, as compared to the merits phase of a trial, "is usually a highly discretionary function of the trial judge" and "[a] trial judge generally may consider information from a wide variety of sources in evaluating the appropriate sentence"). Meanwhile, there is no indication that retrying M.C. would involve any "special hardship" to the government. See Scott, 559 A.2d at 754 (noting that whether denial of relief will produce injustice to litigants turns on whether the parties "made a showing of `special hardship by reason of their reliance on the original judgment'") (quoting Liljeberg, 486 U.S. at 870, 108 S.Ct. 2194).
In denying the recusal motion, the trial judge said it was "untimely." We think that a written motion filed within a day of the trial judge's disclosure during the course of trial shows no unwarranted delay or calculation on the part of defense counsel. The District was able to file an opposition before the judge decided the motion. Moreover, we note that a judge has an independent ethical obligation to recuse when required by the Code of Judicial Conduct, whether or not prompted by a party's motion. See Code of Judicial Conduct, Canon 3(E)(1); Model Judicial Code, Rule 2.11, cmt. [2] ("A judge's obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed.").
Providing relief to M.C. in the present case would not produce injustice in future cases — Liljeberg's second prong. To the contrary, we consider that reversal will be beneficial for two reasons. First, in light of the ease and frequency with which judges use email, our decision will prompt judges to use the utmost caution in exchanging communications that might contain information about litigants or witnesses in order to avoid unintended ethical consequences that can result from innocent communications. See Code of Judicial Conduct, Canon 4(A)(1) ("A judge shall conduct all of the judge's extra-judicial activities so that they do not: (1) cast reasonable doubt on the judge's capacity to act impartially as a judge."); Model Judicial Code, Rule 3.1(C) ("[W]hen engaging in extrajudicial activities, a judge shall not . . . participate in activities that would appear to a reasonable person to undermine the judges' independence, integrity or impartiality."). Second, in light of the trial judge's reliance on her own subjective ability to compartmentalize and disregard the extrajudicial information as a basis for denying appellant's motion to recuse, we think it is important to emphasize that recusal under Canon 3(E)(1) is mandatory (unless the parties, after receiving full disclosure, agree otherwise), and that a judge's confidence in her ability to set aside extrajudicial information about a disputed evidentiary fact is irrelevant to the proper objective analysis whether there is an appearance of bias. Thus, reversal "would have prophylactic value since it might prevent a substantive injustice in a future case by encouraging greater sensitivity to the concerns underlying [3(E)]. . . ." Scott, 559 A.2d at 754.
We are also persuaded that the third and final prong of the Liljeberg test favors reversal. Because the standard for recusal is whether an objective observer would have questioned the trial judge's impartiality, it is nearly axiomatic that a violation of Canon 3(E)(1)(a) risks eroding the public's confidence in the judicial process. See Code of Judicial Conduct, Canon 1(A) cmt. ("[V]iolation of this Code diminishes public confidence in the judiciary."); Model Judicial Code, Rule 1.2, cmt. [1, 2]. Despite having received extrajudicial knowledge about a fact central to the matter for adjudication, and notwithstanding the juvenile defendant's motion to recuse, the trial judge refused to remove herself from the case. We have no reason to doubt that the judge reached this decision in good faith, but it was an erroneous choice. As the Court explained in Liljeberg, "[t]he problem, however, is that people who have not served on the bench are often all too willing to indulge suspicions and doubts concerning the integrity of judges. The very purpose [of the disqualification requirement] is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible." 486 U.S. at 864-65, 108 S.Ct. 2194 (emphasis added). Thus, "this case . . . requires a new trial in order to assure the continued public confidence in the integrity of the judiciary." Scott, 559 A.2d at 756.
In sum, the trial judge was required to recuse by Canon 3(E)(1)(a) of the Code of Judicial Conduct, and her failure to do so was not harmless. The judgment of the Superior Court is hereby reversed and the case is remanded for retrial before a different judge. So ordered.
We are, of course, aware that this opinion will itself provide to the new trial judge some of the information concerning the witness that requires Judge Broderick's recusal. Because it is contained in an appellate opinion, however, the new judge's source will not be extrajudicial, but is generated in the proper course of judicial proceedings. Now that the parties know the information concerning the confrontation between I.W. and N.W., counsel will be able to investigate the matter further and present relevant admissible evidence at a retrial.