Appellate Judges

Harriet Nicholson’s Bold Step: Seeking Judicial Impartiality and a Fair Hearing in Texas Courts

Motion to Recuse in Texas Courts: Remember, as Justice Frankfurter indicated, litigants are not helpless before usurping courts.

Harriet Nicholson’s Brief Filed

See flipbook PDF below for her arguments with visual aids.

APR 28, 2021

Venue Transfer Denied, 2 Justices Voluntarily Recused and Remaining Justices Believe they will be Impartial and Provide a Fair Hearing.

APR 16, 2021

ORDER, COA2, TEXAS

Currently pending before this court is “Appellant’s Opposed Motion to Recuse Justices and Motion to Transfer,” filed March 29, 2021, requesting the recusal of Justices Dabney Bassel, Mike Wallach, Brian Walker, Elizabeth Kerr, Wade Birdwell, and Dana Womack under Rules 16.2 and 16.3 of the Texas Rules of Appellate Procedure and Rule 18b(2)(a) of the Texas Rules of Civil Procedure. See Tex. R. App. 16.2, 16.3; Tex. R. Civ. P. 18b(2)(a).

Appellant also requests the court to transfer this cause to another court of appeals or, in the alternative, to seek an assignment from the Chief Justice of the Texas Supreme Court.

Rule 16.3(b) of the Texas Rules of Appellate Procedure prescribes the procedure to be followed for recusal of an appellate justice or judge:

“Before any further proceeding in the case, the challenged justice or judge must either remove himself or herself from all participation in the case or certify the matter to the entire court, which will decide the motion by a majority of the remaining judges sitting en banc.”

Tex. R. App. P. 16.3(b).

Pursuant to this procedure, upon the filing of the recusal motion and prior to any further proceedings in this appeal, Justices Kerr, Bassel, Wallach, and Walker considered the motion in chambers.1 See id.

1 Justices Birdwell and Womack voluntarily recused themselves when this appeal was filed. Accordingly, as to Justices Birdwell and Womack, this motion is moot.

Each justice found no reason that he or she should be recused and certified the matter in writing to the remaining members of the court en banc.   See id.; McCullough v. Kitzman, 50 S.W.3d 87, 88 (Tex. App.—Waco 2001, pet. denied) (order).

This court then followed the accepted procedure set out in rule 16.3(b). Tex. App. P. 16.3(b); see Manges v. Guerra, 673 S.W.2d 180, 185 (Tex. 1984); McCullough, 50 S.W.3d at 88.

The remaining justices deliberated and decided the motion to recuse with respect to each challenged justice by a vote of the remaining justices en banc.

No challenged justice sat with the other members of the court when his or her challenge was considered.

See Tex. R. App. P. 16.3(b); McCullough, 50 S.W.3d at 88.

Each recusal was considered on a case-by-case, fact-intensive basis.

See McCullough, 50 S.W.3d at 89; Williams v. Viswanathan, 65 S.W.3d 685, 688 (Tex. App.—Amarillo 2001, no pet.) (order).

Having carefully examined the pleadings and the record as to appellant’s allegations pertaining to each challenged justice, and finding the allegations to be unsubstantiated, each motion to recuse is denied with respect to each challenged justice.

The court enters the following orders:

ORDER DENYING MOTION AS TO JUSTICE KERR

This court, Justice Kerr not participating, finds no reason to recuse Justice Kerr. See Tex. R. App. P. 16.2; Tex. R. Civ. P. 18b(2).

Accordingly, appellant’s motion to recuse Justice Kerr is denied.

DATED April 16, 2021.

En Banc

Birdwell and Womack, JJ., recused. Kerr, J., not participating.

Per Curiam

 

ORDER DENYING MOTION AS TO JUSTICE BASSEL

This court, Justice Bassel not participating, finds no reason to recuse Justice Bassel.

See Tex. R. App. P. 16.2; Tex. R. Civ. P. 18b(2).

Accordingly, appellant’s motion to recuse Justice Bassel is denied.

DATED April 16, 2021.

En Banc

Birdwell and Womack, JJ., recused. Bassel, J., not participating.

Per Curiam

ORDER DENYING MOTION AS TO JUSTICE WALLACH

This court, Justice Wallach not participating, finds no reason to recuse Justice Wallach. See Tex. R. App. P. 16.2; Tex. R. Civ. P. 18b(2). Accordingly, appellant’s motion to recuse Justice Wallach is denied.

DATED April 16, 2021.

En Banc

Birdwell and Womack, JJ., recused. Wallach, J., not participating.

Per Curiam

ORDER DENYING MOTION AS TO JUSTICE WALKER

This court, Justice Walker not participating, finds no reason to recuse Justice Walker.

See Tex. R. App. P. 16.2; Tex. R. Civ. P. 18b(2).

Accordingly, appellant’s motion to recuse Justice Walker is denied.

DATED April 16, 2021.

En Banc

Birdwell and Womack, JJ., recused. Walker, J., not participating.

Per Curiam

Furthermore, because Justice Birdwell and Justice Womack voluntarily recused themselves when this appeal was filed, relator’s motion to recuse Justice Birdwell and Justice Womack is denied as moot.

Finally, because the court remains able to assemble a panel and take appropriate action on this appeal, appellant’s request to transfer this cause to another court of appeals or, in the alternative, to seek an assignment from the Chief Justice of the Texas Supreme Court is denied.

The clerk of this court is directed to send a notice of this order to appellant pro se, the attorneys of record, the trial court judge, and the trial court clerk.

DATED April 16, 2021.

En Banc

Birdwell and Womack, JJ., recused.

A New Venue and 3 Motions to Recuse 6 Out of 7 Justices

APR 14, 2021

Harriet Nicholson’s 3 Recusal Motions (combined), filed in the Second Court of Appeals against six of the seven justices for questions of impartiality, usurpation, and ignoring their duty imposed by the legislatures to decide cases before them and apply the law correctly to the facts.

TO THE HONORABLE COURT OF APPEALS:

Now comes Appellant, Harriet Nicholson, asking the Court to recuse Justices Bassel, Wallach, Walker, Kerr, Bridwell, and Womack; transfer the case to another court of appeals in the interest of fairness, justice, due process and to be heard before an impartial tribunal and would show unto the Court the following:

It is in the best interests of justice to transfer this case from this Court.

Appellant respectfully requests the recusal/disqualification of Justices Bassel, Wallach, Walker, Kerr, Birdwell, and Womack from any further proceedings in this case pursuant to Tex.R.App. P. 16.2,16.3 and Tex.R. Civ.P. 18b(2)(a).

In the recent case of Miller v. Sam Houston State Univ., 986 F.3d 880 (5th Cir. 2021), Judge Cory Wilson wrote the consolidated opinion for the 5th Circuit and held in relevant part:

…A litigant has the fundamental right to fairness in every proceeding. Fairness is upheld by avoiding even the appearance of partiality. See, e.g., Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980). When a judge’s actions stand at odds with these basic notions, we must act or suffer the loss of public confidence in our judicial system. “[J]ustice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14 (1954)

Mindful of the fundamental right to fairness in every proceeding—both in fact, and in appearance, we REVERSE, REMAND, and direct that these cases be REASSIGNED to a new district judge for further proceedings.

The judiciary might well keep in mind the words of Chief Justice Stayton who in 1888, speaking for the Supreme Court of Texas in Stuart v. Anderson, 70Tex. 588, 8 S.W. 295, 299, wrote,

“The exercise or assumption of a power when a fact necessary to its existence is wanting, is usurpation.”

Justices Bassel, Wallach, and Gabriel usurped its powers in related cases, Nicholson v. Bank of Am., N.A., No. 02-19-00085-CV, 2019 WL 7407739, at *3– 4 (Tex. App.—Fort Worth Dec. 31, 2019, pet. denied) (mem. op.) and Nicholson v. Bank of Am., N.A., No. 02-19-00085-CV, 2019 WL 7407739, at *3–4 (Tex. App.—Fort Worth Dec. 31, 2019, pet. denied) (mem. op.). whereby they affirmed the trial court’s interlocutory severance and summary judgment orders without jurisdiction.

In such a case, any order or decree entered, other than one of dismissal, is void.” (Emphasis added.)

Hall v. Wilbarger County, 37 S.W.2d 1041, 1046 (Tex.Civ.App.—Amarillo 1931), affirmed, Tex.Civ.App., 55 S.W.2d 797.

“If the trial court was without jurisdiction for any reason, the judgment rendered by it is void. ” State v. Olsen, Tex., 360 S.W.2d 398. “

Since the Dallas county district court had no jurisdiction of this particular case, what was done therein was necessarily void, for judicial action without jurisdiction is void.(Emphasis added.) Cleveland v. Ward, supra, at 1071. See also 15 Tex.Jur.2d, Courts, Sec. 50; 16 Tex.Jur.2d, Criminal Law, Sec. 181.

For these reasons, Ms. Nicholson questions the impartiality of Justices Wallach, Walker, and Bassel.

As Justice Frankfurter indicated, litigants are not helpless before usurping courts.

If a court deliberately ignores the legislative mandate and usurps power to impose its will in a particular way, then the judgment would be void in any case, since due process requires an impartial tribunal.

Note: Filling the Void: Judicial Power and Jurisdictional Attacks in Judgments (1977), 87 Yale L.J. 164, 203.

Justices Wallach, Bassel, and Walker chose not to revisit the holdings of the impropriety of the interlocutory orders that merged into the “Final Judgment” in the related case, 02-20-00180-CV, because they relied on its Judgment rendered in the related severed cases without any jurisdiction.

All judges have the duty to sit and decide matters brought before them, unless there is a basis for disqualification or recusal. Rogers v. Bradley, 909 S.W.2d 872, 879 (Tex.1995) (Enoch, J. concurring). Additionally, this issue questions the impartiality of Justices Walker, Wallach, and Bassel.

Justices Birdwell and Womack decided material issues of fact in the trial court , 342-262692-12, as presiding judge and visiting judge. Justices Birdwell and Womack should be recused for this reason.

Ms. Nicholson has issues concerning Justices Kerr impartiality because she has sat on a panel with Justice Wallach in a previous appeal of this case, 02-18- 00035-cv and feels she has bias and prejudices towards her.

It is Ms. Nicholson’s belief that this Court will not decide this case on the well-established law and factual merits of this case but based on bias and prejudices against her and would not be an impartial tribunal.

Ms. Nicholson strongly believes it would be in the interest of justice, fairness, due process as listed in canons of the Texas Judicial Conduct Code to transfer this case to another Court of Appeals:

Canon 1, “Upholding the Integrity & Independence of the Judiciary”,

and

Canon 2, “Avoiding Impropriety & The Appearance of Impropriety in all of the Judge’s Activities”.

The Texas Supreme Court mandates that when there exists a reasonable question as to a judge’s impartiality, recusal is mandatory.

In determining whether recusal is required pursuant to Tex.R.Civ.P. 18b(2)(a), the proper inquiry is whether a reasonable member of the public at large, knowing all the facts in the public domain would have a reasonable doubt that a judge is actually impartial. Rogers v. Bradley, 909 S.W.2d 872, 874 (Tex.1995).

The correct policy consideration in this regard is the promotion of objectively impartial tribunals. Public policy demands that a judge who sits in a case act with absolute impartiality. Prendergass v. Beale, 59 Tex. 446, 447 (1883).

Additionally, there is no law that prohibits this appellate body from transferring this case to another court of appeals. See, Nueces County v. Whitley, et al., 997 S.W.2d 757 614 (Tex.App.-Corpus Christi, 1999, pet. denied)(in the absence of law preventing any certain act authority exists to take any action).

However, beyond the demand that a judge be impartial is the requirement that a judge appear to be impartial so that no doubts or suspicions exist as to the fairness or integrity of the court. Aetna Life Ins. v. Lavoie, 475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986).

The grounds for recusal of an appellate court justice are generally the same as those provided in the rules of civil procedure. Tex.R.App. P. 16.2. Texas Rule of Civil Procedure 18b(2) provides, in part, that judges shall recuse themselves when their impartiality might be questioned or when they have a personal bias or prejudice concerning the subject matter or a party. Tex.R. Civ. P. 18b(2)(a),(e).

Judicial decisions rendered under circumstances that suggest bias, prejudice, or favoritism undermine the integrity of the courts, breed skepticism and mistrust, and thwart the principles on which the judicial system is based. Sun Exploration and Production Co. v. Jackson, 783 S.W.2d 202, 206 (Tex.1989)(Spears, J., concurring).

In determining whether to recuse under rule 18b(2), the inquiry should be “whether a reasonable member of the public at large, knowing all the facts in the public domain concerning the judge’s conduct, would have a reasonable doubt that the judge is actually impartial.” Rogers, 909 S.W.2d at 881(Enoch, J., concurring); see, e.g., Aguilar, 855 S.W.2d at 804-05 (Osborn, J., concurring).

On March 29, 2021, I conferred with Appellees counsels R. Dwayne Danner, Matthew Durham, and Crystal Gibson, they are opposed to this motion to recuse and transfer.

Wherefore, Appellant prays Justices Bassel, Wallach, Walker, Kerr, Bridwell, and Womack recuse himself or herself and transfers this case to another Court of Appeals and in the alternative, seek an assignment from the Chief Justice of the Texas Supreme Court.

Respectfully submitted,

/s/ Harriet Nicholson

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Harriet Nicholson’s Bold Step: Seeking Judicial Impartiality and a Fair Hearing in Texas Courts
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