Commonwealth v. Morgan RV Resorts, LLC, et al. (and five companion cases) (Lawyers Weekly No. 11-089-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13‑P‑119 Appeals Court COMMONWEALTH vs. MORGAN RV RESORTS, LLC, & others[1] (and five companion cases[2]). No. 13‑P‑119. Suffolk. May 23, 2013. ‑ July 9, 2013. Present: Cypher, Kafker, & Sullivan, JJ. Judge. Practice, Civil, Disqualification of judge. Civil action commenced in the Superior Court Department on August 22, 2011. A motion for recusal was heard by Elizabeth M. Fahey, J. Civil action commenced in the Superior Court Department on February 17, 2012. A motion for recusal was heard by Elizabeth M. Fahey, J. Civil action commenced in the Superior Court Department on December 14, 2010. A motion for recusal was heard by Elizabeth M. Fahey, J. Civil action commenced in the Superior Court Department on July 31, 2009. A motion for recusal was heard by Elizabeth M. Fahey, J. Civil action commenced in the Superior Court Department on March 3, 2011. A motion for recusal was heard by Elizabeth M. Fahey, J. Civil action commenced in the Superior Court Department on January 5, 2012. A motion for recusal was heard by Elizabeth M. Fahey, J. Leave to prosecute interlocutory appeals was allowed in the Appeals Court by Kafker, J., and Sullivan, J. Christa A. Arcos (Scott D. Burke with her) for Carmel Gilberti. Jonathan B. Engel, Assistant Attorney General (Mychii Snape, Assistant Attorney General, with him) for the Commonwealth. KAFKER, J. The issue presented is whether a judge who sued her former law firm for unpaid compensation and lost should have recused herself from cases involving that firm, four years after the Supreme Judicial Court decided the case. Applying the two-part test set forth in Lena v. Commonwealth, 369 Mass. 571, 575 (1976), the judge concluded that she held no actual bias, and that no reasonable person would question her impartiality. We agree that there is no basis for recusal on the grounds of actual bias. However, given the protracted litigation, the judge’s personal involvement in the lawsuit, the amount at stake, and the judge’s inconsistent rulings on prior recusal motions, “an objective appraisal of whether this was ‘a proceeding in which [her] impartiality might reasonably be questioned’” compels the conclusion that recusal was warranted. Ibid., quoting from S.J.C. Rule 3:25, Canon 3(C)(1)(a), 359 Mass. 841 (1972). Accordingly, we reverse […]