Amended Motion to Recuse / Disqualify Justices on Second Appellate Court, Texas
NOV 4, 2021 | REPUBLISHED BY LIT: NOV 10, 2021
To the Second Court of Appeals:
Now comes Appellant, Harriet Nicholson, asking the Court to recuse/disqualify Justice Bassel, Justice Wallach, and Justice Walker and would show unto the Court the following:
Appellant respectfully requests the recusal/disqualification of Justice Bassel, Justice Wallach, and Justice Walker from any further proceedings in this case pursuant to Tex.R.App. P. 16.2. and Tex.R. Civ. P. 18b(2)(a).
Ms. Nicholson questions the justices’ impartiality. On December 31, 2019, Justice Gabriel, Justice Bassel, and Justice Wallach chose to exercise jurisdiction over interlocutory orders resulting in an unauthorized usurpation of judicial power and authority in contravention of Tex. Const. art. V, § 6; Tex. Gov’t Code Ann. § 22.220 in the related cases Nicholson v. Bank of America, NA, No. 02-19- 00085-CV (Tex. App. Dec. 31, 2019) and Nicholson v. Stockman, No. 02- 19-00103- CV (Tex. App. Jan. 16, 2020).
On March 25, 2021, Justice Walker, Justice Bassel, and Justice Walker chose not to exercise jurisdiction over the interlocutory severance and summary judgment orders that merged into the Final Judgment in case 02-20-00180-CV in contravention of Tex. Const. art. V, § 6; Tex. Gov’t Code Ann. § 22.220.
The grounds for the recusal of appellate justices are the same as the grounds for the recusal of trial judges under the Rules of Civil Procedure. Tex.R.App. P. 16.2. Under Rule of Civil Procedure 18b, a judge is required to recuse himself in any proceeding in which his impartiality might reasonably be questioned. Tex.R. Civ. P. 18b(2)(a).
As Justice Frankfurter indicated, litigants are not left 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. Gibson v. Berryhill, 411 U.S. 564, 578-79 (1973).
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, 100
S.Ct. 1610, 64 L.Ed.2d 182 (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. “[The basic tenet for disqualification is] justice must satisfy the appearance of justice.” Miller v. Sam Houston State Univ., 986 F.3d 880, 883 (5th Cir. 2021) citing Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 (1954).); see Dredging Co. v. Henning, 631 So.2d 1129, 1130; Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d 416, 430 (Tex. 1996).
In 1994, the U.S. Supreme Court held in Liteky v. United States, 510 U.S. 540, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994):
“Disqualification is required if an objective observer would entertain reasonable questions about the judge’s impartiality. If a judge’s attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified. Indeed, in such circumstances, I should think that any judge who understands the judicial office and oath would be the first to insist that another judge hear the case.”
In matters of ethics, appearance and reality often converge as one. See Offutt v. United States, 348 U. S. 11, 14 (1954) (“[J]ustice must satisfy the appearance of justice”); Ex parte McCarthy,  1 K. B. 256, 259 (1923) (“[J]ustice should not only be done, but should manifestly and undoubtedly be seen to be done”). Liteky v. United States, 510 U.S. 540, 564-565 114 S. Ct. 1147, 127 Ed. 2d 474 (1994).
It was reversible error for this Court to have erroneously exercise its jurisdiction over non-appealable interlocutory orders in cause 02-19-00085-CV and 02-19-00103-cv. See Tullos, 695 S.W.2d at 568-69. The Second Court of Appeals judgments in case 02-19-00085-CV and 02-19-00103-CV unambiguously stated they were affirming [statutorily non-appealable interlocutory] summary judgment and severance orders.
We’ll ask the accountants et al as well.
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— LawsInTexas (@lawsintexasusa) November 10, 2021
A court cannot confer jurisdiction on its self where none existed and cannot make a void proceeding valid. It is clear and well established law that a void order can be challenged in any court.” Wayne Mut. L. Assoc. v. McDonauch, 204 U.S. 8, 27 S. Ct. 236 (1907).
The question of jurisdiction is fundamental and can be raised at any time including for the first time on appeal. Tullos v. Eaton Corp., 695 S.W.2d 568 (Tex.1985); Qwest Microwave, Inc. v. Bedard, 756 S.W.2d 426, 434 (Tex.App.—Dallas 1988, orig. proceeding). A court’s jurisdiction consists of two elements: jurisdiction of the subject matter and jurisdiction of the person. Botello v. Salazar, 745 S.W.2d 540, 541 (Tex. App.—Houston [14th Dist.] 1988, no writ); Ex parte Bowers, 671 S.W.2d 931, 935 (Tex.App.—Amarillo 1984, orig. proceeding). If one of the elements is missing, the court’s judgment is subject to collateral attack and any judgment or order rendered by the court is void. Austin Indep. School Dist. v. Sierra Club, 495 S.W.2d 878, 881 (Tex.1973).It is well settled that the parties to an action may not confer subject-matter jurisdiction on a court. City of Little Rock v. Circuit Court of Pulaski Cty., 2017 Ark. 219, 521 S.W.3d 113; Vanderpool v. Fid. & Cas. Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997). A court that acts without subject-matter jurisdiction or in excess of its jurisdiction produces a result that is void and cannot be enforced. Jonesboro Healthcare Ctr., LLC v. Eaton-Moery Envtl. Servs., Inc., 2011 Ark. 501, 385 S.W.3d 79.
Error in assuming jurisdiction where none exists was held to be fundamental in McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957). See also N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex.1990) (per curiam) (citing Long v. Humble Oil & Refining Co., 380 S.W.2d 554 (Tex.1964); McCauley v. Consol. Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957)); In re B.L.D., 113 S.W.3d 340, 350 (Tex.2003); Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex.1998); Allright, Inc. v. Pearson, 735 S.W.2d 240 (Tex.1987); Am. Gen. Fire & Cas. Co. v. Weinberg, 639 S.W.2d 688, 688-89 (Tex. 1982).
Appellant prays in the interest of justice, fairness, and due process Justices Bassel, Wallach, and Walker are recused/disqualified from any further proceeding in this case.
/s/ Harriet Nicholson
CERTIFICATE OF SERVICE
I hereby certify that on November 4, 2021, I caused a copy of the foregoing MOTION TO RECUSE/DISQUALIFY JUSTICES to be electronically filed and served through the court’s eFileTexas.gov service, and to be served on all counsel of record.
/s/ Harriet Nicholson
CERTIFICATE OF CONFERENCE
On November 4, 2021, I conferred with counsels of record, Mr. Danner and Ms. Gibson, concerning the merits of the foregoing motion, they are opposed.
/s/ Harriet Nicholson