JONES v. KASSOUF CO., 1040989 (Ala. 7-21-2006)


JONES v. KASSOUF CO., 1040989 (Ala. 7-21-2006)

William B. Jones et al. v. Kassouf Company, P.C., et al.

No. 1040989.Supreme Court of Alabama.
Decided July 21, 2006.

Appeal from Jefferson Circuit Court (CV-00-2207)

On Application for Rehearing

WOODALL, Justice.

APPLICATION OVERRULED. NO OPINION.

Nabers, C.J., and See, Harwood, Stuart, Smith, Bolin, and Parker, JJ., concur.

Lyons, J., dissents.

Parker, J., files statement of nonrecusal.

PARKER, Justice (statement of nonrecusal).

Alabama citizens are blessed by their ability to select their judges at every level of the judiciary from the district court to the Supreme Court through open and competitive elections rather than through a political selection process. A virtue of the Alabama system is that elected judges are held directly accountable to the people every six years rather than insulated from accountability by lifetime appointments or retention elections that exclude all challengers to appointed incumbents.

No system designed by a human is perfect, of course, and even the best-run, open, and competitive elections will disappoint the supporters of the losing candidate. In our federal and state constitutional republics, however, former electoral opponents in all branches of civil government are accustomed to putting aside their electoral differences to serve in the post-election capacities that Providence has ordained for them. Sometimes such service includes appearing in court in the same case in different roles or supporting opposing candidates in subsequent elections.

The instant case has provided this Court with just such a situation. A counsel for the appellants in this case and I were electoral opponents in 2004. Since then, to my knowledge the first time that we have crossed paths in a judicial proceeding was in the original submission of this case. The appeal was initiated with this Court on April 1, 2005, and the notice of appearance of my former electoral opponent as counsel for the appellants was received by the office of the clerk of this Court on August 15, 2005. Nine months later, on May 12, 2006, this Court, by an 8-to-1 vote, affirmed the lower court’s judgment against the appellants.

During the months in which their case was before the Court and my former electoral opponent represented them as counsel, the appellants did not request my recusal from the original appeal ? even though they were well aware that I was a member of this Court as well as a former electoral opponent of their counsel. It was only after this Court issued its ruling in their appeal, with an outcome unsatisfactory to the appellants, that they sought my recusal from consideration of their application for rehearing in the case. Consequently, the appellants’ motion for recusal is untimely; for that reason alone, it is due to be denied.

Even if the appellants’ motion for my recusal had been timely, however, it would nonetheless be denied, because it lacks any allegation of bias or prejudice, and, even if such an allegation had been made, their motion fails to include any evidence in support of such an allegation. In fact, the appellants offer in support of their motion for my recusal only a suggestion of a possible appearance of partiality: “Justice Parker’s impartiality toward [the appellants’ honorable counsel] might reasonably be questioned. . . .” Motion to recuse at 4. This is simply an insufficient reason for a judge’s recusal.

In Alabama, a judge’s recusal is not required by the mere accusation of bias unsupported by substantial fact. Wallace v.Wallace, 352 So. 2d 1376 (Ala.Civ.App. 1977). Furthermore, a party’s or party’s counsel’s status as a former electoral opponent does not establish the requisite personal bias:

“The appellant argues that the trial court improperly denied his motion to appoint another attorney; he had made that motion on the grounds that his attorney was the judge’s political opponent. Defense counsel had intended to run for the office of circuit judge against the judge who presided over this case. Defense counsel argues that the appellant did not get a fair probation revocation hearing because the trial judge was trying to `embarrass and humiliate’ his political opponent.

“In Reach v. Reach, 378 So. 2d 1115, 1117
(Ala.Civ.App. 1979), cert. denied, Ex parte Reach, 378 So. 2d 1118 (Ala. 1980), the appellant moved the trial judge to recuse himself because defense counsel was a political opponent of the trial judge when the judge last ran for office and because the appellant was defense counsel’s campaign manager. The Court of Civil Appeals upheld the trial court’s denial of the motion, stating:

“`Canon 3(C)(1) provides in part that a judge should recuse himself in a proceeding in which his impartiality might reasonably be questioned in instances where he has personal bias or prejudice concerning a party. Canon 3(C)(1)(a), Canons of Judicial Ethics (1976). Such prejudice is not presumed. Wells v. Wells, Ala Civ. App., 346 So. 2d 442, cert. denied, Ala., 346 So. 2d 444 (1977); and it is encumbent on the moving party to prove that the bias is of a personal nature. Pannell v. State, Ala. Crim. App., 356 So. 2d 219, cert. denied, 356 So. 2d 222 (1977).'”

Clontz v. State, 531 So. 2d 60, 61-62 (Ala.Crim.App. 1988) (emphasis added). See also Judicial Inquiry Commission Advisory Opinion 84-219 (Aug. 27, 1984) (“[I]t is the opinion of the [Judicial Inquiry] Commission that the mere fact that a party to a proceeding is represented by the defeated opponent of the judge for judicial office does not require the judge’s disqualification.”); Advisory Opinion 98-694 (May 15, 1998); Advisory Opinion 98-716 (Dec. 18, 1998); and Advisory Opinion 04-838 (April 8, 2004).

A fundamental presupposition of our judicial system is that, exceptional circumstances aside, a judge is able to decide a case impartially despite past or present contacts with counsel of a party before the judge. By establishing a Supreme Court consisting of nine Justices, Alabama law presumes that those Justices have something of value to contribute to the resolution of a case. Consequently, when a Justice recuses himself or herself unnecessarily, the recusal deprives the parties and the public of the benefit of the Justice’s participation and the Justice fails to do the job he or she was elected to do.

Here, the appellants, in an untimely motion, have failed to prove what they have not even alleged, namely, personal bias against their counsel. Nor could they, for it does not exist. In fact, I harbor only best wishes for the esteemed counsel. Accordingly, I decline to recuse myself from consideration of the application for rehearing in this case.