SHELBY COUNTY GOVERNMENT, ET AL.
CITY OF MEMPHIS, ET AL.
Assigned Date: December 22, 2014
Appeal from the Chancery Court for Shelby County No. CH1403223 Jim Kyle, Chancellor
Ricky E. Wilkins, Memphis, Tennessee, for the appellants, Robert E. Teutsch, Frank G. Witherspoon, Martha C. Witherspoon, Larry Sawyer, Wanda Sawyer, Doyle S. Silliman, and Marilyn Williams.
Allan Jerome Wade, Memphis, Tennessee, for the appellee, City of Memphis.
J. Steven Stafford, P.J., W.S., delivered the opinion of the Court, in which Arnold B. Goldin, J., and Brandon O. Gibson, J., joined.
J. STEVEN STAFFORD, JUDGE
This is an accelerated interlocutory appeal from a trial court's denial of a recusal motion pursuant to Rule 10B of the Rules of the Tennessee Supreme Court. See generally Tenn. Sup. Ct. R. 10B. We consider this case only on the submissions of the parties and the attachments thereto. The parties' submissions indicate that the facts concerning the issue on appeal are largely undisputed.
On March 5, 2014, Shelby County Government ("Shelby County") filed a Petition for Declaratory Judgment in the Chancery Court of Shelby County, seeking a determination as to whether Shelby County or Respondent/Appellee City of Memphis ("the City of Memphis") was responsible for providing public services to the residents in the Southwind Annexation Area, while the related case, Silliman, et al., v. City of Memphis, et al., __ S.W.3d __, 2014 WL 3016659 (Tenn. Ct. App. 2014), perm. app. denied (Tenn. Nov. 12, 2014),  was on appeal. The City of Memphis filed an answer asserting that Shelby County's claims had been mooted by this Court's opinion in Silliman, and raising a counterclaim regarding the collection of vehicle registration fees and property tax appraisals. Shelby County and the City of Memphis later entered an agreed order allowing the City of Memphis to file an additional counterclaim against Appellants/Counter-Defendants Robert E. Teutsch, Frank G. Witherspoon, Martha C. Witherspoon, Larry Sawyer, Wanda Sawyer, Doyle S. Silliman, and Marylan Williams (collectively, "Appellants") for breach of their consent agreement to allow annexation of the Southwind Annexation Area. Although Shelby County remains a party to this lawsuit, the dispute central to this interlocutory appeal concerns only the City of Memphis and Appellants.
On August 7, 2014, Jim Kyle was elected to the Shelby County Chancery Court. Prior to taking the bench, Chancellor Kyle served as both a private attorney with the law firm Domico Kyle, PLLC ("Domico Kyle") and as an elected member of the Tennessee General Assembly. As an attorney with Domico Kyle, Chancellor Kyle represented the City of Memphis in several employment litigation matters.
On October 31, 2014, Appellants filed a Petition for a Temporary Restraining Order and Temporary Injunctive Relief seeking to maintain the status quo regarding the rendition of public services and the collection of vehicle registration fees pending resolution of either Silliman or the present litigation. On the same day, the chancellor presiding over the matter, Chancellor Oscar C. Carr, III, granted the Appellants' Petition for a Temporary Restraining Order and set the matter for hearing on November 13, 2014. On November 3, 2014, however, Chancellor Carr recused himself from the case, and it was transferred to Chancellor Kyle in Part II of the Shelby County Chancery Court.
On November 3, 2014, the City of Memphis filed a motion to dissolve the Temporary Restraining Order, arguing that the order was entered despite several errors, including the trial court's lack of subject matter jurisdiction over the issue and numerous procedural defects. The City of Memphis filed a restated motion to dissolve on November 4, 2014. The City of Memphis's restated motion to dissolve the Temporary Restraining Order was set to be heard on November 4, 2014 before Chancellor Kyle.
At the outset of the November 4, 2014 hearing, Chancellor Kyle announced to the parties that as a partner with Domico Kyle, he had represented the City of Memphis in several matters, several of which were still pending. According to Appellants, Chancellor Kyle indicated that he continued to personally represent the City of Memphis in these matters. After making his announcement, Chancellor Kyle allowed the parties a period of time to discuss the potential conflict and ordered the parties to return to court on November 6, 2014. When the parties returned to court, counsel for the Appellants lodged an oral motion asking Chancellor Kyle to withdraw on the basis of Chancellor Kyle's current representation of a party to the litigation. Appellants allege that both they and the City of Memphis were under the impression that Chancellor Kyle was willing to withdraw should a party lodge a recusal motion.
After a short recess, however, Chancellor Kyle denied the recusal motion. Chancellor Kyle admitted that he currently represented the City of Memphis in unrelated litigation, but explained:
Theoretically, every judge of this judicial district who owns real property in the city, you could say, has an interest over and above anyone else in the outcome of this case. . . .
So having thought about, and reviewed Rule 10, reviewing the cannons again, reviewed what we did and how we did it for the City [of Memphis], I'm going to overrule [the] motion and we're going to take this matter up today and we're going to get started.
Counsel for Appellants asked the trial court for leave to immediately appeal the denial of the recusal motion. Chancellor Kyle, however, denied the oral motion and stated that he would go on to consider the merits of the City of Memphis's motion to dissolve the Temporary Restraining Order. At the conclusion of the hearing, Chancellor Kyle orally granted the City of Memphis's motion to dissolve the Temporary Restraining Order. The trial court indicated, however, that it would entertain a written recusal motion from the Appellants.
Prior to the entry of an order on the City of Memphis's motion to dissolve the Temporary Restraining Order, on the evening of November 6, 2014, Appellants electronically filed a written motion for recusal. However, the motion was not supported by an affidavit under oath as required by Tennessee Supreme Court Rule 10B, discussed in detail, infra. Accordingly, Appellants filed an amended motion on November 7, 2014. Appellants' amended motion sought recusal of Chancellor Kyle on two bases. First, the Appellants asked for recusal due to Chancellor Kyle's continued representation of a party to the lawsuit in unrelated litigation. Second, the Appellants asserted that as a member of the General Assembly, Chancellor Kyle participated in the enactment of the legislation at issue in Silliman. According to Appellants' later submission to this Court in support of their accelerated interlocutory appeal, Chancellor Kyle "made impassioned public statements in his capacity as a legislator, concerning the City of Memphis' right to extend its boundaries by ordinance, and was a vocal opponent of the law [that Appellants argued in Silliman prevented the City of Memphis from exercising their annexation power]." As such, Appellants argued that Chancellor Kyle remaining on the case created an appearance of impropriety.
On November 10, 2014, Chancellor Kyle entered an order doing two things: 1) denying the written recusal motion; and 2) setting aside the temporary restraining order. In explaining his reasoning in denying the recusal motion, Chancellor Kyle stated:
As to the Court's "representation" of the City, said representation concerns six administrative law matters related to six City of Memphis employees which are near conclusion and are part of the liquidation and winding down of Domico Kyle PLLC. None of said matters are currently pending in the 30thJudicial District and at no time was the Court associated with plaintiff's counsel.
As to the objection to the Court being a former member of the legislative branch of government, the Court could not function if all matters voted ...