Ex parte City of Dothan Personnel Bd.

• Decision Date: 01 February 2002
• Citation: 831 So.2d 1
• Parties: Ex parte CITY OF DOTHAN PERSONNEL BOARD. (In re Stanley E. DeVane v. The City of Dothan Personnel Board et al.)
• Court: Alabama Supreme Court

831 So.2d 1

Ex parte CITY OF DOTHAN PERSONNEL BOARD.

(In re Stanley E. DeVane v. The City of Dothan Personnel Board et al.)

1001978.

Supreme Court of Alabama.

February 1, 2002.

Rehearing Denied March 22, 2002.

F. Lenton White, city atty., Dothan, for petitioner.

Kevin Walding of Hardwick, Hause & Segrest, Dothan, for respondent.

HARWOOD, Justice.

On August 21, 2001, the City of Dothan Personnel Board ("the Board") filed a petition for a writ of mandamus ordering Judge Denny L. Holloway ("the trial judge") to recuse himself from presiding over Stanley E. DeVane's appeal of the Board's decision to affirm the termination of DeVane's employment by the Dothan Police Department. The Board asserts that the trial judge is disqualified from sitting in DeVane's appeal because, at the time of his appeal, one of the attorneys representing DeVane, Jere Segrest, was also representing the trial judge personally in a divorce proceeding. DeVane counters that any disqualification of the trial judge that might initially have arisen from the fact that he was represented in the divorce by Segrest was neutralized and "cured" by Segrest's withdrawal from DeVane's case immediately after the Board raised the issue of disqualification, and, additionally, by the full and complete termination of the trial judge's divorce proceeding approximately a month after Segrest withdrew. After careful analysis of all of the pertinent underlying facts and upon application of pertinent legal principles, we deny the petition.

"[A]s is generally true in these [recusal] cases, it is the `totality of the facts' that requires recusal." In re Sheffield, 465 So.2d 350, 356 (Ala.1985). See also Wallace v. Wallace, 352 So.2d 1376, 1379 (Ala.Civ.App.1977). Accordingly, we first set forth the following detailed chronology of the relevant events, case filings, and court orders:

March 2, 2001 The trial judge, proceeding pro se, filed his "complaint for divorce" in the Barbour Circuit Court. June 1, 2001 DeVane's "Appeal hearing" was conducted before the Board.

June 13, 2001 Segrest filed his appearance as attorney of record for the trial judge in the Barbour County case.

June 29, 2001 The Board entered its order upholding DeVane's termination of employment.

July 2, 2001 DeVane, by and through Segrest and his law partner, Kevin Walding, filed in the Houston Circuit Court a "Notice of Appeal" from the order of the Board. Also filed at that time and signed by Segrest and Walding was DeVane's motion requesting the court "to set a hearing in this matter to discuss, outline, establish the issues and schedule for this matter [and] to set a briefing schedule for this case." Apparently accompanying the motion was a proposed "Order," containing blank spaces in which to enter the case number assigned, the date, time and place of the scheduled hearing, and the date of execution of the order.

July 9, 2001 The order form was completed by entry of the case number, the date (July 31), time, and place of the hearing, and the date (July 9) of the execution of the order. (The information entered in the blanks does not appear to be in the trial judge's handwriting—his handwriting is available for comparison at various points elsewhere in the record—and his signature appears to be the imprint of a signature stamp, rather than personally inscribed by the trial judge. This Court takes judicial notice of the fact that many circuit judges delegate to their judicial assistant, or other staff members, the scheduling of routine motions and the issuance of an order bearing the judge's signature stamp.)

July 12, 2001 Linton White, city attorney and counsel for the Board in this action, wrote a letter to the trial judge, addressed to him at "P.O. Drawer 6406, Dothan, Alabama 36302," stating the following:

"This will confirm our discussion this date regarding the Personnel Board's request for you to recuse yourself from the above referenced case. As you are aware this is based upon Canon Number 3C(1) of the Code of Judicial Ethics and numerous opinions from the Judicial Inquiry Commission as they relate to Mr. Jere Segrest's representation of you in [a] case ... currently pending in the Circuit Court of Barbour County, Alabama.

"As you can see from these opinions, Mr. Segrest's representation of you disqualifies you from having the above referenced case where the appeal to circuit court was signed by Mr. Segrest. This will further confirm the Commission's opinion that this disqualification is not subject to remittal.

"This request does not imply any bias, as the Commission clearly states bias is not relevant. Rather, it is made in order to avoid any situation where the impartiality of the court might be called into question."

The endorsement at the bottom of the letter reflects that a copy of it was sent to Segrest.

July 13 (Friday), 2001 Segrest filed with the court his motion that he be allowed to withdraw from representing DeVane in the case, advising that "Kevin Walding will remain as sole counsel for [DeVane]." On this same date, the trial judge handwrote an order on the case action summary sheet reading: "Scheduling conference is continued generally. Notify."

(The record does not reflect when the "discussion" referred to in White's July 12 letter took place, when that letter was mailed, or when the trial judge received it, nor does the record reflect the time of day on July 13 when Segrest filed his motion to withdraw.)

July 16 (Monday), 2001 Segrest's motion to withdraw was granted.

July 20, 2001 The Board filed its "Motion for Recusal," moving the trial judge to recuse himself on a ground that, based on all of the facts and considerations recited in the motion, it was reasonable for a member of the public or a party to question the trial judge's impartiality.

July 25, 2001 DeVane, appearing solely by and through Walding, filed his "Response to Motion for Recusal" noting that Segrest had withdrawn from the case, that Walding (per his attached affidavit) had not been, and would not be, involved in the divorce case in any way and that he had been unaware of it or Segrest's involvement in it until recently. The response also quoted from Judicial Inquiry Commission Advisory Opinion 99-731 to the effect that if a "judge's attorney withdraws from a case before the judge, the judge is not disqualified to proceed in the event another member of the same firm who has no involvement in the judge's case appears."

July 30, 2001 An editorial was published in the Dothan Eagle, a newspaper in Dothan, Alabama, reciting the facts of Segrest's dual representation, the fact that he had withdrawn as DeVane's counsel, the fact that "the case" had been continued by the trial judge, the fact that White had filed a motion for recusal, and opining that "White shouldn't have to request recusal ... in the interest of justice and appearances, Judge Holloway should recuse himself as soon as possible."

August 7, 2001 Notation entered on case action summary sheet reading: "Notice of filing condensed transcript."

August 13, 2001 The Board filed its petition for a writ of mandamus with this Court.

August 14, 2001 Judge Holloway and Segrest appeared before the circuit judge of Barbour County, along with Mrs. Holloway and her attorney, and "represented to the court that [Judge and Mrs. Holloway had] reached an agreement with the advice and consent of their respective attorneys and have stated the agreement into the record of this Court." (As recited in the August 20, 2001, order noted next.)

August 20, 2001 The Barbour Circuit Court enters a "Final Decree of Divorce" ratifying and confirming the parties' agreement, and signed not only by the Barbour County circuit judge, but also as "Approved" by Segrest and the attorney representing Mrs. Holloway.

September 13, 2001 The trial judge entered an order reciting "the court having read the transcript[,] petitioner DeVane shall have 7 days to submit any briefs or citations of law [he] wishes to file and respondent shall have 7 days thereafter to submit its briefs and citations of law."

The Board also emphasizes that from May 5, 2001, to June 19, 2001, the Dothan Eagle published various articles reporting on DeVane's planned appeal to the Board, the actual filing of that appeal, the appeal hearing, and a possible grand jury proceeding involving DeVane. The Board also asserts that there was live radio coverage of Segrest's argument and his questioning of witnesses at the hearing and delayed television coverage of the hearing. In a May 5, 2001, article in the Dothan Eagle, Segrest was quoted as having said "I don't think [DeVane's] guilty of anything."

The standard governing this Court's review of a petition for a writ of mandamus is well-settled:

"A writ of mandamus is an extraordinary remedy, and it will be `issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.' Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991)."

Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998).

"A mandamus petition is the proper method to review the trial court's denial of a motion to recuse. However, the writ of mandamus is a drastic and extraordinary remedy and should be issued only upon a clear showing that the trial court has abused its discretion by exercising it in an arbitrary or capricious manner."

Ex parte Cotton, 638 So.2d 870, 872 (Ala. 1994) (citation omitted).

The first issue for this Court's consideration is whether this matter is properly before us. DeVane has filed a motion asserting that the Board's...