Ex parte Balogun

• Decision Date: 02 October 1987
• Citation: 516 So.2d 606
• Parties: Ex parte Peter G.T. BALOGUN, Sr. (Re Ex parte Peter G.T. Balogun, Sr. (Re Peter G.T. BALOGUN, Sr. v. Catherine BALOGUN). 86-593.
• Court: Alabama Supreme Court

Page 606

516 So.2d 606

Ex parte Peter G.T. BALOGUN, Sr. (Re Ex parte Peter G.T. Balogun, Sr (Re Peter G.T. BALOGUN, Sr. v. Catherine BALOGUN).

86-593.

Supreme Court of Alabama.

Oct. 2, 1987.

George L. Beck, Jr., Montgomery, for petitioner.

Thomas L. Rountree, Auburn, for intervenors.

PER CURIAM.

Petitioner, Peter G.T. Balogun, Sr., petitioned for a writ of certiorari to the Court of Civil Appeals, which had 1) denied a writ of mandamus directed to the Honorable Dale Segrest, Circuit Court, Macon County, Alabama, compelling him to recuse himself and 2) affirmed the trial court decision permitting Tuskegee Newspaper, Inc., and Paul R. Davis to intervene in petitioner's divorce proceeding to obtain certain documents pursuant to a claimed First Amendment right. We reverse the judgment of the Court of Civil Appeals affirming Judge Segrest's refusal to recuse himself and affirming Judge Segrest's order allowing the intervention of Tuskegee Newspaper, Inc., and Paul R. Davis; we remand to the Court of Civil Appeals with instructions for that court to grant the writ of mandamus compelling recusal and to remand to the circuit court for proceedings consistent with this opinion.

FACTS

The facts are undisputed. Petitioner filed for divorce in the Circuit Court of Macon County, Alabama. During the first days of the divorce proceeding, four letters (hereinafter the "dog track letters"), as well as photographs and other documents, allegedly involving the petitioner, the Macon County Dog Track, and unethical or criminal conduct, were marked for identification as Exhibits 32 through 35. Exhibit 32 was admitted into evidence, but the remaining exhibits were not admitted. The court then recessed.

During the recess, the parties reached a settlement. When the court reconvened, the settlement was read into the record. Upon reaching a settlement, petitioner requested that the court return the exhibits, which had been stolen from petitioner in July 1986. Judge Segrest refused to return the exhibits and ordered that they be locked in the clerk's safe indefinitely. On that issue, Judge Segrest stated:

"Well, let me tell you quite frankly, that's not going to become bedroom material for anybody to have to look at or anything like that. It's going to be put in a safe...."

In response to these actions, petitioner filed a complaint against Judge Segrest with the Alabama Judicial Inquiry Commission on September 8, 1986. Upon learning that other parties had gained access to the letters, petitioner filed a motion to have the trial judge return all the exhibits. A hearing on the motion was not set until December 5, 1986. After the motion was filed, Judge Segrest informed petitioner that he was the party who had given copies of the letters to various law enforcement agencies.

Petitioner alleged that Judge Segrest indicated bias by turning over the documents to the law enforcement agencies. On October 31, 1986, petitioner orally moved for Judge Segrest to recuse himself. Judge Segrest took the motion under advisement and requested the Judicial Inquiry Commission's opinion on whether he should recuse himself from further proceedings in petitioner's divorce case.

On November 14, 1986, Tuskegee Newspaper, Inc., and Paul R. Davis filed a motion to intervene in the divorce case in order to gain access to the dog track letters. On November 17, Judge Segrest granted the intervenors' motion and set a hearing on the merits for November 21, 1986. On the same day, in writing, petitioner reasserted his motion for Judge Segrest to recuse himself.

On November 21, 1986, the Judicial Inquiry Commission advised Judge Segrest that

"... the mere fact of the report [disclosure of letters to law enforcement] would not affect the court's appearance of impartiality...."

Thereafter, Judge Segrest denied petitioner's motion for recusal.

Petitioner subsequently sought a writ of mandamus from the Court of Civil Appeals. That court denied it, without an opinion. Petitioner's motion for rehearing and adoption of facts under Rule 39(k), A.R.App.P., was also denied.

Petitioner then sought from this Court a writ of certiorari and filed here a motion for stay pending issuance of the writ. Both the motion to stay and the writ were granted by this Court. At this time, the parties have settled the divorce action, but the disposition of the dog track letters is still pending.

The issues here are as follows:

1. Whether a writ of mandamus should be issued, compelling Judge Segrest to recuse himself from further proceedings in this matter.

2. Whether the Court of Civil Appeals erred in affirming the trial court's decision allowing Tuskegee Newspaper, Inc., and Paul R. Davis to intervene in order to obtain access to the dog track letters.

I. Mandamus

This Court has long held that mandamus, not appeal, is the proper remedy if a judge refuses to recuse himself. Crook v. Newberg & Son, 124 Ala. 479, 484, 27 So. 432 (1899), citing Ex Parte State Bar Ass'n, 92 Ala. 113, 8 So. 768 (1890). See Fulton v. Longshore, 156 Ala. 611, 46 So. 989 (1908).

At early common law, and prior to the adoption of the Alabama Canons of Judicial Ethics, mandamus was granted to require a judge to recuse himself only if the judge had a personal or pecuniary interest, Fulton, supra, or if the judge's personal rights were at stake. Fulton, 156 Ala. at 614, 46 So. at 990, citing Ex parte State Bar Ass'n, supra.

The adoption of the Canons of Judicial Ethics, which have the force of law, provided a new standard. See Wallace v. Wallace, 352 So.2d 1376 (Ala.Civ.App.1977).

Canon 2(A) states:

A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

Given the concept of promoting public confidence in the system, Canon 3(C)(1) states that "[a] judge should disqualify himself in a proceeding in which ... his impartiality might reasonably be questioned" by members of the public, a party, or counsel. See Wallace, supra; Acromag-Viking v. Blalock, 420 So.2d 60 (Ala.1982); affirmed on other grounds, 474 So.2d 91 (Ala.1985). Nonetheless, recusal is not required based on a "mere accusation of bias unsupported by substantial fact. Each case must stand on its own." Wallace, supra at 1379; see Acromag-Viking, supra; Ford v. Ford, 412 So.2d 789 (Ala.Civ.App.1982); Miller v. Miller, 385 So.2d 54 (Ala.Civ.App.), cert. denied, 385 So.2d 56 (Ala.1980). The presumption is that the judge is not biased if his decisions are supported by clear and convincing evidence. Matter of Sheffield, 465 So.2d 350 (Ala.1984), citing Matter of Samford, 352 So.2d 1126, 1129 (Ala.1977). "For the law will not suppose a possibility of bias or favor in a judge who is already sworn to administer impartial justice and whose authority greatly depends upon that presumption and idea." Fulton, 156 Ala. at 613, 46 So. at 990.

The facts of this case are simple and undisputed. Though this is a divorce action, the crucial question revolves around those dog track letters that were marked for identification and the one letter admitted into evidence. Judge Segrest refused to return the exhibits upon settlement of the case and promised to lock them in a safe. What he admitted to actually doing was giving copies of the exhibits to law enforcement agencies. Thereafter, he set a hearing on petitioner's motion to return the documents, but set it for three months after the motion was made. In the meantime, he granted the respondents' motion to intervene, within three days of the date they made their motion and while the petitioner's motion to return the documents was still pending.

Before ruling on petitioner's motion to recuse, Judge Segrest asked the Judicial Inquiry Commission to give an advisory opinion. The Commission determined that Judge Segrest's conduct in releasing the dog track letters to law enforcement agencies did not, standing alone, indicate any bias requiring recusal. Judge Segrest relied on this advisory opinion in denying petitioner's motion.

Rule 17, Rules of Procedure of the Judicial Inquiry Commission, provides that the Judicial Inquiry Commission may issue advisory opinions as to "whether certain specified action contemplated or proposed to be taken by [a judge] may constitute a violation of the Canons of Judicial Ethics." The opinions are rendered for the benefit of a judge, and are admissible on behalf of a judge should he act consistent with the opinion and then have disciplinary proceedings brought against him for that conduct.

Similar to an advisory opinion by this Court pursuant to § 12-2-10, Code of Alabama (1975), the Commission's advisory opinions are not binding and do not affect a party's rights or remedies. See Alabama Education Ass'n v. James, 373 So.2d 1076 (Ala.1979); Opinion of the Justices No. 269, 280 Ala. 692, 198 So.2d 269 (1967). While this Court will consider the opinion of the Commission, we are not bound by it.

One factor apparently not considered by the Commission, but which we conclude is crucial, is the fact that an issue in this case is the disposition of the dog track letters, and, on at least two prior occasions Judge Segrest has recused himself on matters involving the dog track. See Alabama Leisure Enterprises, Inc. v. Macon County Racing Comm'n, [Macon County CV 83-112], and Macon Development Corp. v. Macon County Racing Comm'n, [Macon County CV 83-123]. Judge Segrest himself stated in strong language why he recused:

Long prior to the time that I became a circuit judge, I took a public position in opposition to legalized dog racing under the auspices of a local commission. The political issue of dog racing was a heated issue in a campaign for the State Senate several years prior to my election as circuit judge. Additionally, in connection with a referendum which was conducted several years ago in which the dog track measure was defeated at the polls, I was...