Opinion
NO. 09-15-00094-CV
07-28-2016
IN RE COMMITMENT OF ROBERT BURNS MCCALL
On Appeal from the 435th District Court Montgomery County, Texas
Trial Cause No. 14-07-07294 CV
MEMORANDUM OPINION
Challenging the denial of his motion to recuse the trial judge who presided over his trial, Robert Burns McCall appeals from a judgment in a civil commitment case in which a jury found him to be a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2015) (the SVP statute). In two issues, McCall argues (1) that the Court should take judicial notice of various documents that were unavailable to him when the hearing on his motion to recuse the trial judge occurred, and (2) that the judge who conducted the recusal hearing erred by denying his motion to recuse the judge who presided over his trial. We conclude that McCall's issues are without merit, and we affirm the trial court's judgment and order of civil commitment.
Background
In November 2014, McCall filed a motion to recuse Judge Michael T. Seiler, the judge who presided over a jury trial resulting in McCall's commitment as a sexually violent predator. Prior to the recusal hearing, McCall amended his motion several times. In McCall's third amended motion, his live pleading for the purpose of the recusal hearing, McCall sought Judge Seiler's recusal on the basis that Judge Seiler's "impartiality might be questioned by a reasonable member of the public at large knowing all the facts in the public domain concerning the judge and the case[.]" In support of his motion, McCall relied on (1) various comments that Judge Seiler made at a meeting of the Texas Patriots PAC that occurred in March 2013; (2) a September 2011 newspaper account of a speech that Judge Seiler presented when he spoke at a meeting of a Republican Women's Club in Montgomery County; (3) a slogan on a sign used in Judge Seiler's 2008 campaign for office as a district judge, which stated "A PROSECUTOR TO JUDGE THE PREDATORS[;]" (4) a newspaper article, published in November 2011, announcing Judge Seiler's intent to seek reelection, reporting Judge Seiler's statements regarding the number and results in over forty SVP trials that occurred in 2011; and, (5) evidence indicating that in two other recusal hearings, the judge assigned to those hearings granted motions requiring that Judge Seiler be recused.
After McCall filed his motion to recuse, Judge Seiler referred McCall's motion to the presiding administrative judge for the Second Administrative Judicial Region. See Tex. R. Civ. P. 18a(f)(1) (requiring the judge to either sign an order of recusal, or to refer the motion to the regional presiding judge). Subsequently, the administrative judge assigned Judge Chap Cain, a district judge who presides over another district court within the second administrative region, to hear McCall's motion. In December 2014, Judge Cain conducted a hearing on McCall's motion, as well as three other motions in three other civil commitment cases in which defendants were seeking Judge Seiler's recusal. At the conclusion of the combined hearing, Judge Cain denied all of the motions.
The state is divided into nine administrative judicial regions, and Montgomery County is in the second administrative judicial region. McCall's motion was referred to the administrative judge for that region. Tex. Gov't Code Ann. § 74.042(c) (West Supp. 2015).
Recusal Standards
Rule 18b of the Texas Rules of Civil Procedure provides that a judge must recuse in any proceeding in which the judge's impartiality might reasonably be questioned, or where the judge is shown to have a personal bias or prejudice concerning the subject matter or a party. See Tex. R. Civ. P. 18b(b) (1), (2). We apply an abuse-of-discretion standard in reviewing a ruling on a motion to recuse. See In re Commitment of Winkle, 434 S.W.3d 300, 310 (Tex. App.—Beaumont 2014, pet. denied); Tex. R. Civ. P. 18a(j)(1).
Judicial Notice
In his first issue, McCall asks the Court to take judicial notice of news articles published in newspapers on December 24, 2014, December 30, 2014, December 31, 2014, January 6, 2015, February 21, 2015, May 1, 2015, and May 5, 2015, a group of articles published after the hearing conducted on McCall's motion to recuse. The various newspaper accounts contain reports that are critical of Judge Seiler. McCall also asks the Court to take judicial notice of a ruling issued in April 2015 by the State Commission on Judicial Conduct. In that ruling, Judge Seiler was reprimanded for matters that occurred in civil commitment cases other than the ones that are the subject of the combined hearing conducted by Judge Cain, and for making comments regarding sexually violent predators during a speech before the Texas Patriots PAC. The speech before that group concerned certain individuals who were subjected to civil commitment proceedings but the individuals that Judge Seiler mentioned in his speech did not include McCall. McCall also asks the Court to take judicial notice of the legislative analysis on a bill passed by the Senate, Senate Bill 746. The legislative analysis includes statements concerning the author's evaluation of why the SVP statute needed to be amended, and it includes comments critical of Judge Seiler. The various documents that McCall suggests we should add to the record through the process of judicial notice, which is found in Rule 201 of the Texas Rules of Evidence, were not before Judge Cain when he denied McCall's motion. See Tex. R. Evid. 201.
As the party with the burden of proof at the recusal hearing, McCall was required to persuade Judge Cain "that a reasonable person, with knowledge of the circumstances, would harbor doubts as to the impartiality of the trial judge, and that the bias is of such a nature and extent that allowing the judge to serve would deny the movant's right to receive due process of law." Winkle, 434 S.W.3d at 311. Since the documents that McCall asks that we add to the record through the process of judicial notice were not considered by Judge Cain in ruling on McCall's motion to recuse, and given that an abuse-of-discretion standard applies to Judge Cain's ruling, it would be inappropriate for us to consider documents that Judge Cain did not consider in evaluating whether he abused his discretion when he denied McCall's motion.
In its brief, the State argues that we should not consider evidence that Judge Cain did not consider in deciding McCall's motion. In reply to the State's argument, McCall acknowledges that Judge Cain's ruling should be reviewed based on the evidence that was presented to him during the hearing. Nonetheless, McCall suggests that we take judicial notice of the subject documents, and then consider them "for whatever persuasive value they may have in determining the reasonableness of Judge Cain's decision."
Generally, Rule 201 of the Texas Rules of Evidence allows courts to take judicial notice of facts when they are not reasonably subject to dispute. Tex. R. Evid. 201(b). In McCall's case, the parties' dispute concerns the public's perception of Judge Seiler's conduct, a fact which is reasonably disputed. Generally, the judge hearing a motion to recuse is entitled to presume that the trial judge, the judge with the responsibility of trying the merits of the case, understands that judges must "render decisions upon a proper record[.]" See Liteky v. United States, 510 U.S. 540, 562 (Tex. 1994). Therefore, in a recusal hearing, the party moving to recuse the trial judge must prove that the trial judge has a bias "'of such a nature and extent as to deny the movant due process of law.'" Office of Pub. Util. Counsel v. Pub. Util. Comm'n, 185 S.W.3d 555, 574 (Tex. App.—Austin 2006, pet. denied) (quoting Rosas v. State, 76 S.W.3d 771, 774 (Tex. App.—Houston [1st Dist.] 2002, no pet.)). If following the hearing on the motion to recuse the trial judge's bias is unproven, but then becomes manifest in the trial, a new trial can remedy such error. However, in his issues, McCall does not suggest that Judge Seiler's alleged bias against him manifested itself during his trial in a manner that prejudiced his ability to obtain a fair verdict from the jury. Thus, our review of whether Judge Cain ruled properly should be limited to the record that was before him when he denied McCall's motion. See Abdygapparova v. State, 243 S.W.3d 191, 199 (Tex. App.—San Antonio 2007, pet. ref'd).
We conclude it would be improper for the Court to consider documents that Judge Cain did not consider in evaluating whether he abused his discretion by denying McCall's motion to recuse. We overrule issue one.
Denial of Motion
In McCall's second issue, he argues that the denial of his motion to recuse constitutes an abuse of discretion. See Tex. R. Civ. P. 18a(j)(1) (mandating that an abuse-of-discretion standard be used to review rulings on motions to recuse). In his brief, McCall argues that Judge Cain abused his discretion by misapplying the controlling law, and by deciding that Judge Seiler should not be recused based on the evidence presented to him in the hearing.
First, we address McCall's argument that Judge Cain misapplied the controlling law. According to McCall, Judge Cain misapplied the law by failing to evaluate the evidence from the standpoint of a reasonable member of the public who possessed knowledge of all of the circumstances known publically regarding Judge Seiler's claimed impartiality towards McCall and towards defendants who are subject to SVP proceedings. While Judge Cain did not specifically state in his order or in his comments during the hearing whether he had reviewed the evidence before him from the standpoint of the impact such evidence would have on a reasonable member of the public regarding Judge Seiler's impartiality, we are not persuaded that Judge Cain failed to view the evidence from the proper recusal standard. See Winkle, 434 S.W.3d at 311 (stating that the standard for recusing a judge requires the party moving for recusal to show "that a reasonable person, with knowledge of the circumstances, would harbor doubts as to the impartiality of the trial judge," and to show "that the bias is of such a nature and extent that allowing that judge to serve would deny the movant's right to receive due process of law"). During the hearing, Judge Cain specifically indicated that he was familiar with the Ninth Court's opinion in Winkle, in which the Court identified the proper standard to be used by judges deciding motions to recuse. Id. Additionally, in his live pleading, McCall set out the legal standard for recusal hearings as requiring "the movant must show that a reasonable person, with knowledge of the circumstances, would harbor doubts as to the impartiality of the trial judge, and that the bias is of such a nature and extent that allowing the judge to serve would deny the movant's right to receive due process of law." At the beginning of the hearing, Judge Cain specifically indicated that he had read McCall's motion. When one of McCall's attorneys, in opening remarks, explained to the court the reasons that led McCall to file the motion, the attorney identified the legal standard as requiring McCall to show that "a reasonable member of the public at large, knowing all the facts in the public domain concerning the [j]udge in the case, would have a reasonable doubt that the [j]udge is actually impartial." Judge Cain did not question whether McCall's attorney properly stated the controlling standard of proof. At the conclusion of the hearing, another of McCall's attorneys, in closing remarks, argued that Judge Seiler should be recused because "a reasonable member of the public, knowing all the facts that are in the public domain regarding the [j]udge and the case, would have a reasonable doubt that the [j]udge is actually impartial." In conclusion, nothing in the hearing or the clerk's record suggests that Judge Cain was asked to apply a legal standard other than a standard requiring the evidence to be judged from the standpoint of a reasonable member of the public who knew the facts in the public domain, as those facts were proven in the hearing.
When the hearing ended, Judge Cain orally explained to the attorneys his reasons for denying McCall's motion. In the course of the explanation that he provided, Judge Cain referred to the requirements of Rules 18b(1) and 18b(2) of the Texas Rules of Civil Procedure. Also, Judge Cain's oral findings reflect that he did consider various circumstances that were in the public domain, such as the fact that many of Judge Seiler's statements were statements that were made while Judge Seiler was running for office, and that Judge Seiler had spent his career before being elected to public office as a prosecutor. Given the record as a whole, we are not persuaded that Judge Cain failed to measure the evidence before him using the proper legal standard.
Next, we address McCall's argument that Judge Cain abused his discretion by failing to grant his motion. In large part, the evidence presented in the hearing is the same evidence that we have considered in other appeals in which other defendants challenged rulings by other judges hearing motions claiming that Judge Seiler was biased. See In re Commitment of Lewis, No. 09-15-00360-CV, 2016 WL 2766069, at *1 (Tex. App.—Beaumont May 12, 2016, pet. filed) (considering comments Judge Seiler made in speeches to the Texas Patriots PAC, the Montgomery County Republican Women, and comments and slogans that Judge Seiler used in his two political campaigns); In re Commitment of Massingill, No. 09-15-00365-CV, 2016 WL 2594720, at *1 (Tex. App.—Beaumont May 5, 2016, pet. filed) (mem. op.) (same); In re Commitment of Dupree, No. 09-15-00269-CV, 2016 WL 1600763, at *1 (Tex. App.—Beaumont April 21, 2016, pet. filed) (mem. op.) (same); In re Commitment of Terry, No. 09-15-00053-CV, 2015 WL 5262186, at *2 (Tex. App.—Beaumont Sept. 10, 2015, pet. denied) (mem. op.) (same); see also Winkle, 434 S.W.3d at 311 (considering allegations of bias based on an order Judge Seiler entered after Winkle obtained a new trial, news reports of comments that Judge Seiler made at public meetings in 2011 and 2012, a campaign sign that Judge Seiler used in a campaign touting his prior experience, and a comment Judge Seiler made about homosexuals in an SVP trial that did not involve Winkle). In McCall's case, the only evidence we have not previously addressed in other appeals consists of some additional material Judge Seiler used in connection with his 2008 political campaign, his initial run seeking election to the office of district judge. Judge Seiler's campaign material that we have not considered in prior appeals consists of push cards, postcards, a yard sign used in Judge Seiler's 2008 primary runoff, and lapel labels. All of these materials, to one degree or another, emphasized Judge Seiler's experience as a prosecutor, and emphasized his experience in handling criminal cases against sexually violent offenders.
During the hearing, Judge Cain explained that a candidate for office is entitled to contrast his previous experience with that of his opponents. Judge Cain generally referenced these materials as matters constituting "political speech." In our opinion, Judge Cain did not abuse his discretion by concluding that a general member of the public would view the campaign material at issue as material that contrasted Judge Seiler's experience with the experience of his opponents. In our opinion, Judge Cain could reasonably conclude that the public would not perceive the campaign materials at issue as amounting to Judge Seiler's promise to rule on SVP cases in a particular way if elected, or as a promise that he would act as a prosecutor and not a judge if elected. See Winkle, 434 S.W.3d at 312 (concluding that a judge who denied a recusal motion had not abused her discretion by viewing one of Judge Seiler's campaign signs as not representing a "promise to act in a biased manner in deciding cases assigned to the court, or to act in a biased manner regarding any individual case"). Given the abuse-of-discretion standard used to review recusal rulings, we may not disturb such rulings unless the appellant demonstrates that the judge's decision was arbitrary and unreasonable. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1990). Based on the evidence before the lower court regarding the materials Judge Seiler used in his political campaigns, Judge Cain's decision that the signs did not show that Judge Seiler held a bias was a decision that was neither arbitrary nor unreasonable. See Terry, 2015 WL 5262186, at *1 (concluding that the slogan Judge Seiler used on his campaign signs could reasonably be viewed as referencing his experience as a prosecutor and not as representing a promise to act in a biased manner in deciding cases assigned to his court); Winkle, 434 S.W.3d at 312 (same).
With respect to the remaining evidence, we have previously explained why that evidence, which pertains to the statements that Judge Seiler made in public or made during other trials would not necessarily cause a member of the public to conclude that Judge Seiler could not be impartial in another individual's case. See Massingill, 2016 WL 2594720, at *1; Dupree, 2016 WL 1600763, at *2; Terry, 2015 WL 5262186, at *2; Winkle, 434 S.W.3d at 312. Judge Cain's conclusion, like the conclusions of the various judges in the cases we have cited, are conclusions that fall within the zone of reasonable disagreement such that his decision cannot be characterized as resulting from an abuse of discretion. SeeWalker, 827 S.W.2d at 840. Because Judge Cain did not abuse his discretion by denying McCall's motion, issue two is overruled.
We also note that McCall did not advance any issues in his appeal complaining of any of the rulings that Judge Seiler made when McCall's case was tried, a trial that ended with the jury determining that McCall is a sexually violent predator. See Tex. R. App. P. 44.1(a)(1) (requiring the appellant show that the error probably caused the rendition of an improper judgment).While McCall advances several arguments in an effort to explain how he was harmed, given our conclusion that McCall has not shown that Judge Cain abused his discretion by denying McCall's motion, we need not reach the question of whether he was harmed. --------
Having overruled both of McCall's issues, the trial court's judgment and order of commitment are affirmed.
AFFIRMED.
/s/_________
HOLLIS HORTON
Justice Submitted on November 23, 2015
Opinion Delivered July 28, 2016 Before Kreger, Horton, and Johnson, JJ.