Seeking a Recusal: Calling the Judge a Lizard Won't Help Your Cause
| Publication year | 2010 |
| Pages | 0220 |
by Robert P. MacKenzie, III and Lindsey Tomlinson Druhan
Introduction
Life was not going well for Joe Bentley and now it was about to become worse. Indicted for murder during the course of an armed robbery, Bentley found himself awaiting trial. Dissatisfied with pretrial rulings and without advising his attorney, Bentley elected to convey his feelings directly to the trial judge. From his jail cell, Bentley told the judge he had "sold his soul to Lucifer," and the judge would "die like his lizard spy." Later, realizing the significance of his client's conduct, Bentley's lawyer sought to recuse the trial judge. The motion contended any judge who had received such a threatening letter could not possibly be in a position to be fair and impartial. The trial court, however, ruled, despite Bentley's claim, recusal was not warranted. In affirming the court's order, the Alabama Supreme Court observed it was the defendant, not the judge, whose wrongful conduct was at issue. Ex parte Bentley, 849 So. 2d 997 (Ala. Crim. App. 2002).
Bentley's actions represent the extreme response of a party's dissatisfaction with a judge. As the client's advocate, it is the attorney's duty to recognize and, if based upon merit, to challenge any judge who cannot be fair and impartial. Asserting the proposition that the trial judge or justice should not hear the case is awkward at best. Judges are required to take a solemn oath to uphold the law and to be fair in all circumstances. To suggest otherwise is a strike at the very core of judicial principle. Yet, there are occasions where guided by the law or common sense, judges must step aside. Be wary, however, that challenges to the court are most often unsuccessful.
I. Alabama Statutory Law and Canons of Judicial Ethics
The law of recusal reflects two fundamental judicial polices; first, it is the duty of a judge to decide cases. Second, a judge should be a neutral, or impartial, decision-maker. Archer Daniels Midland Co. v. Seven Up Bottling Co. of Jasper, Inc., 746 So. 2d 966 (Ala. 1999). The test for recusal is whether a person of ordinary prudence would qualify the judge's action as prejudicial. Ex parte Monsanto Co., 862 So. 2d 604 (Ala. 2003). Actual bias is not necessary. Crowell v. May, 676 So. 2d 941 (Ala. Civ. App. 1996). There is a presumption, however, that a judge is not prejudiced or bias. Sullivan v. State Personnel Bd., 679 So. 2d 1116, 1118 (Ala. Civ. App. 1996). Recusal of a trial judge is not required by the mere accusation of wrongdoing unsupported by substantial evidence. Gladden v. Gladden, 942 So. 2d 362 (Ala. Civ. App. 2005). Further, judges must not recuse themselves for imaginary reasons; judge-shopping should not be encouraged. Glassroth v. Moore, 229 F. Supp. 2d 1283 (M.D. Ala. 2002). It is, however, the duty of the judge "to disqualify himself whenever, at whatever state of the litigation, it appears that his impartiality might reasonably be questioned." Streater v. Woodward, 7 F. Supp. 2d 1215, 1218 (N. D. Ala. 1998).
The grounds for recusal are predicated upon the statutory authority of Ala. Code § 12-1-12 (1975) and the Alabama Canons of Judicial Ethics. The statutory provisions concern (1) the judge's family relationship with a party, (2) prior involvement in the particular case as an attorney or (3) the validity of any instrument drafted or signed by the judge. See also 28 U.S.C. § 455. Beyond the specifics of Ala. Code § 12-1-12 (1979), the Canons of Judicial Ethics set forth broader grounds for recusal including bias and financial interests. The Canons are not merely guidelines for proper judicial conduct but have "the force of law." Ex parte Atchley, 936 So. 2d 513 (Ala. 2006) (citing Balogun v. Balogun, 516 So. 2d 606 (Ala. 1987)).
A. Mechanics for Recusal
When the judge knows of any circumstance or fact which may be grounds for recusal, it is the judge's duty to so advise the parties. Ex parte City of Dothan Personnel Board, 831 So. 2d 1 (Ala. 2002). For a moving party, they must file at the first opportunity or, otherwise, the issue may be waived. In Johnson v. Brown, 707 So. 2d 288 (Ala. Civ. App. 1997), the plaintiff brought a civil action which was assigned to a judge who had formerly been the county district attorney. While serving in this capacity, his office prosecuted the plaintiff in a criminal matter.
Approximately one year after the civil case was filed, the plaintiff filed a certificate of readiness. The defendants moved for summary judgment. At the hearing on the motion for summary judgment, the plaintiff, for the first time, orally moved for recusal because of the judge's past position as district attorney. The trial judge observed the motion for recusal was likely a dilatory tactic. In fact, the plaintiff's attorney conceded in open court, "I can honestly state I am not completely prepared to respond to the motion for summary judgment." The judge, however, allowed the plaintiff to submit a brief on the recusal issue. When no brief was submitted, the recusal was denied and the summary judgment motion was granted. Given the untimeliness of the motion, the trial judge's ruling was affirmed.
From the court's perspective and to minimize the chance of reversal, the determination of the motion for recusal should be deliberate. The motion may be heard by the judge whose conduct is at issue or transferred for hearing by another. Ex parte Monsanto Co., supra. In response to a motion for recusal, the judge may submit testimony on his own behalf. In Ex parte Knotts, 716 So. 2d 262 (Ala. Crim. App. 1998), the criminal defendant sought recusal of the trial judge for comments allegedly made by the judge about the defendant's "New York lawyers." In a well-reasoned affidavit, the judge denied making any such statements. Thereafter, the defendant argued the trial judge should recuse himself because, by denying the allegations and setting forth his position by way of an affidavit, the trial judge had now become a material witness. The court of criminal appeals disagreed. The court determined the defendant, by alleging the trial judge was biased against him, placed the judge in the position of having to address the allegations. Id.
The supreme court, however, reached a different conclusion in considering the judge's response to a claim of bias. In the Matter of Sheffield, 465 So. 2d 350 (Ala. 1984). In Sheffield, the trial judge entered a contempt ruling against the writer of a letter to the newspaper editor which criticized the judge's rulings in a domestic relations matter. When called by a newspaper reporter about the letter, the trial judge outlined his position. Those comments, among other issues, were the basis of an ethics complaint. The Court of the Judiciary determined the judge should recuse himself. The Alabama Supreme Court affirmed the decision.
B. Steps Taken after a Judge is Recused
once a judge has been recused, the judge should take no further action except to notify the presiding judge. In Ex parte Jim Walter Homes, 776 So. 2d 76 (Ala. 2000), the trial judge disqualified himself and, thereafter, pursuant to Rule 13 of the Alabama Rules of Judicial Administration, assigned the case to another judge. The defendant moved to recuse the second judge, arguing the case had been improperly assigned. The motion was denied. On appeal, the Supreme Court of Alabama held the trial judge, once disqualified, cannot appoint a successor. To facilitate the proper transfer, the supreme court set forth the following protocol:
In a circuit with only one circuit judge, if the district judge within the county in which the action is pending has been temporarily assigned by the presiding circuit judge to serve in circuit court pursuant to Rule 13, [of the Alabama Rules of Judicial Administration], the circuit judge shall notify that district judge of the circuit judge's disqualification. If no judge with authority to hear the case is available in the county in which the action is pending, the case shall be referred to the AOC for assignment of a judge.
Id. In order to avoid the appearance of impropriety, once disqualified, the judge should take no further action in that case, not even the action of reassigning the case.
II. Common Issues Which Suggest Recusal
A. Bias
Canon 3.C. (1) of the Alabama Canons of Judicial Ethics calls for a judge to recuse himself when "he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." This personal bias must "stem from an extrajudicial source" in order for recusal to be required. Ex parte Melof, 553 So. 2d 554, 557 (Ala. 1989). Personal bias, as contrasted with judicial bias, is an attitude of extra-judicial origin, or one derived non coram judice. Woodall v. State, 730 So. 2d...
To continue reading
Request your trial