Ex Parte Atchley, 1041364.
Decision Date | 10 February 2006 |
Docket Number | 1041364. |
Citation | 936 So.2d 513 |
Parties | Ex parte James Kenneth ATCHLEY, Sr. (In re James Kenneth Atchley, Sr. v. Lawton Dale Fuller). |
Court | Alabama Supreme Court |
James Kenneth Atchley, Sr., pro se.
L. Dale Fuller, pro se.
James Kenneth Atchley, Sr., petitions this Court for a writ of mandamus directing Judge F. Timothy Riley to recuse himself from the underlying legal-malpractice litigation. Atchley also requests that, once Judge Riley recuses himself, this Court "permit" the Administrative Office of Courts ("AOC") to appoint a judge to sit in the case. We deny the petition.
In January 2005, Atchley sued his former attorney, Lawton Dale Fuller, in the Marshall Circuit Court, alleging legal malpractice. In February 2005, both of the judges in the Marshall Circuit Court, Presiding Judge Tim Jolley and Judge David Evans, recused themselves from Atchley's legal-malpractice action. Apparently pursuant to a standing order, Atchley's case was then reassigned to Judge Riley, the presiding district court judge. Atchley moved Judge Riley to recuse himself because, he said, "there has been no appropriate assignment or order appointing Judge Riley to this case," and because "Fuller[,] being a local attorney, . . . give[s] an appearance of impartiality [sic]." Atchley's mandamus petition, Exhibit 2. Judge Riley denied Atchley's motion, entering the following statement on the case-action summary: Atchley now petitions this Court for a writ of mandamus ordering Judge Riley to recuse himself and "permitting" the AOC to reassign this case because once Judge Riley recuses himself there will not be a judge with authority to hear the case available in Marshall County.
This Court then held that the appropriate procedure for initiating the reassignment of a case when the presiding judge in the circuit has been disqualified from a case under the Canons of Judicial Ethics is as follows:
Ex parte Jim Walter Homes, 776 So.2d at 80.
This case is not squarely addressed by the holding in Ex parte Jim Walter Homes. Marshall County has two circuit judges, both of whom recused themselves from hearing Atchley's legal-malpractice case. However, the second scenario outlined above, pertaining to circuits with only one circuit judge, is applicable to this case by analogy because, whether one circuit judge in a circuit with only one circuit judge recuses himself or herself or two circuit judges in a circuit with only two circuit judges recuse themselves, the result is the same: no other circuit judge in the circuit has authority to hear the case. In such an instance, if the district judge in that county has been "temporarily assigned by the presiding circuit judge to serve in circuit court pursuant to Rule 13, Ala. R. Jud. Admin., the circuit judge shall notify that district judge of the circuit judge's disqualification." We see no reason that a district judge with authority to serve in the circuit court pursuant to Rule 13, Ala. R. Jud. Admin., may not do the same.
Atchley contends that because both circuit judges in the circuit recused themselves the AOC must appoint a judge to hear his case. However, Ex parte Jim Walter Homes calls for the AOC to appoint a judge in a particular case "[i]f no judge with authority to hear the case is available in the county in which the action is pending ...." If Judge Jolley, the presiding circuit judge, provided in a standing order that the presiding district judge shall be temporarily assigned to serve in the circuit court when needed, pursuant to Rule 13, Ala. R. Jud. Admin., then Judge Riley is a "judge with authority to hear the case ... in the county in which the action is pending," and Atchley's case need not be referred to the AOC for reassignment.
Atchley does not include Judge Jolley's standing order as an attachment to his mandamus petition. See Rule 21(a)(1)(E), Ala. R.App. P. (). We presume that trial court judges know and follow the law. See Ex parte Slaton, 680 So.2d 909, 924 (Ala.1996) (); and Carter v. State, 627 So.2d 1027, 1028 (Ala. Crim.App.1992) (). Thus, absent evidence to the contrary, we presume that the standing order provides a procedure that is consistent with the procedure in Ex parte Jim Walter Homes. That presumption is consistent with Judge Riley's May 20, 2005, entry on the case-action summary,...
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