RECUSAL REFUSAL--Motions, Motorcycles and the Mississippi Supreme Court Create Controversy

An ABA Journal ereport BY STEPHANIE FRANCIS WARD

Justices on the Mississippi Supreme Court are revved up about a motorcycle-riding ex-colleague and his son-in-law's recusal request.

It all started in 2001 with a $71 million verdict against Washington Mutual Finance Group. A jury found that the institution had asked customers to renew loans without disclosing additional charges.

The lawyer for the plaintiff customers, Shane F. Langston of Jackson, is the son-in-law of C.R. "Chuck" McRae, who until January 2004 was a judge on the Mississippi Supreme Court. Which in itself is not remarkable, except that Washington Mutual is appealing the verdict to the state high court.

After McRae left the court, a motion for recusal was filed. Which in itself is not remarkable, except that it wasn't filed by Washington Mutual on the basis of Langston's relation to McRae. Langston filed the motion, claiming in part that the court was biased against him because of bad blood between him, McRae, five other justices on the court and his wife, Rebecca Langston, McRae's daughter.

Here's what happened: Last year, Chief Justice Edwin Lloyd Pittman filed a complaint against McRae with the Mississippi Commission on Judicial Performance. Joining him in the complaint were four other justices. Rebecca Langston, who practices law with her husband Shane, represented her father before the commission.

The complaint alleges that after losing his bid for re-election to the court, McRae allegedly said to Pittman, "I have 369 days left in my term, and I
intend to have fun on every one of them. I'm going to call you 'Li'l Tadpole' every day that I can." The complaint goes on to allege that McRae threatened to whip Pittman, disrupted the court and refused to step down in matters that involved his family members.

Nevertheless, the court is unbiased and capable of judging the issues, Pittman says. He wrote the Feb. 5 decision denying the recusal motion in Washington Mutual Finance Group v. Blackmon, No. 2001-CA-01911-SCT. The opinion focuses on case law that presumes judges are qualified and unbiased, unless a party can offer evidence that produces reasonable doubt about the validity of that presumption.

"Unless the antagonism is extreme and clearly demonstrated, or unless the animosity so demonstrated is coupled with other prejudicial circumstances, recusal is not mandated," Pittman wrote for the court. "The recusal mechanism must be guarded carefully to check its use as a weapon to be wielded in a campaign to maneuver onto more favorable fields of battle."

The court also rejected Langston's allegations that the five justices are biased in favor of another lawyer, W. Scott Welch III, who submitted an amicus
> brief for the Mississippi Bankers Association on behalf of Washington Mutual. Langston contended the five justices sought Welch's services after McRae served subpoenas on them in the matter before the Mississippi Commission on Judicial Performance.

Ultimately, Welch's law firm declined to represent the five, but not before he ghostwrote two motions for them, according to Langston. One sought a protective order, and another asked the commission to appoint Welch and his law partner as special counsel for the McRae matter. Welch would not comment on the case.

Meanwhile, the commission is still deciding whether McRae should be sanctioned, says Brant Brantley, executive director of the Mississippi Commission on Judicial Performance. The agency found the evidence was insufficient to warrant an interim suspension of McRae, however, in findings of fact issued last Halloween.

The commission said evidence did not support allegations that McRae had refused to recuse himself in matters involving his family. And while the commission did conclude that McRae threatened to whip Pittman, the chief justice did not feel threatened, the opinion said. The commission also concluded that McRae's colleagues were partly to blame for the situation, citing admissions by McRae, Pittman and a third justice that they all had used inappropriate language.

Brantley would not say if the commission is considering sanctions for other supreme court members.

The controversy hasn't broken McRae's stride-or his spirit. He is currently undertaking the "Chuck McRae World Tour," traveling across the globe on a tricked-out motorcycle.

Before leaving the bench and the state, however, McRae donned an American flag-print bandanna and a leather vest and drove his cycle through the marble halls of the courthouse, posting photos of his deed on his personal Web site, chuckmcrae.com. Also posted is a photo of Pittman looking agitated and holding a copy of Forbes magazine, which features McRae on his motorcycle.

Meanwhile, Langston says he plans to petition the court for rehearing, saying he will never get a fair hearing from the five justices who filed a complaint against McRae.

And for the record, Langston says he does not know if McRae actually did call Pittman a "Li'l Tadpole."



©2004 ABA Journal