Ex parte Cotton

• Decision Date: 18 March 1994
• Citation: 638 So.2d 870
• Parties: Ex parte Helen COTTON. (Re Helen COTTON v. Terry BROWN, et al.). 1930294.
• Court: Alabama Supreme Court

Page 870

638 So.2d 870

Ex parte Helen COTTON (Re Helen COTTON v. Terry BROWN, et al.).

1930294.

Supreme Court of Alabama.

March 18, 1994.

Edward R. Jackson and Robert F. Richardson of Tweedy, Jackson and Beech, Jasper, for petitioner.

Paul G. Smith of Smith, Spires & Peddy, Birmingham, for respondent.

INGRAM, Justice.

Helen Cotton petitions this Court for a writ of mandamus directing Judge Horace H. Nation III to recuse himself from a case now before him in which she is the plaintiff. She contends that recusal is required under Canon of Judicial Ethics 3(C)(1) because, she says, there is an appearance of impropriety because Judge Nation was a defendant in a separate civil action and in that earlier action was represented by the same attorney that is representing the defendant in Ms. Cotton's case. Therefore, she contends that, pursuant to Advisory Opinion 88-337 issued by the Judicial Inquiry Commission on August 2, 1988, Judge Nation should have granted her motion to recuse.

In June 1991, Ms. Cotton, through her attorney, Edward Jackson, filed an action against Terry Brown and others arising out of a slip and fall accident that occurred at a Quincy's restaurant. In July 1991, attorney Paul G. Smith, of the law firm of Smith, Spires, and Peddy, filed an appearance and answered the complaint for Brown and the other defendants. The case has proceeded through discovery and is now approaching a trial setting. In August 1993, attorney Robert F. Richardson, an associate with Jackson's law firm, Tweedy, Jackson, and Beech, filed a notice of appearance as additional counsel for Ms. Cotton. Mr. Jackson then requested that Judge Nation recuse himself, contending that there is an appearance of impropriety resulting from the fact that the attorneys of record in the present case (Paul Smith for the defendants and Edward Jackson for the plaintiff, Ms. Cotton) were also involved in a proceeding involving Judge Nation. Specifically, Edward Jackson represented plaintiffs in an earlier action against Judge Nation, who had been represented in that earlier action by Paul Smith. That earlier action was settled and is no longer pending.

At the outset, we point out the distinction between recusal and disqualification. Although the fundamental difference is a procedural one, a brief clarification seems appropriate here. When the facts of a case present possible bias on the part of a trial judge, or the appearance of bias, the party who sees that possible bias or appearance of bias has the duty of moving for a recusal. It becomes the judge's responsibility to initiate the action of removing himself from the case under Canon 3(C)(1) only when he is disqualified. Generally, the grounds for recusal are as well known to the parties as they are to the judge, but facts leading to disqualification are often known only to the judge.

When disqualification is required, the duty is squarely placed upon the judge to disqualify himself. Consequently, the judge's failure to disqualify himself in a particular case, when required to do so by the Canons, may subject the judge to an inquiry if a complaint is filed with the Judicial Inquiry Commission, whereas, the judge's ruling on a recusal motion is reviewable on a mandamus petition filed in the appropriate appellate court.

However, although recusal and disqualification are two separate concepts, there has developed an overlap. The preamble to the Canons states that the Canons "formulate and establish ... principles which govern the conduct of members of the judiciary." These Canons establish a system to govern the judiciary that is administered by a peer-review system: the Judicial Inquiry Commission. However, the Canons are also being used to define legal standards of judicial conduct. See Wallace v. Wallace, 352 So.2d 1376 (Ala.Civ.App.1977) (where the court held that the Canons had the force of law and used the objective standard of Canon 3(C)(1) to hold that a trial judge erred in failing to grant the motion to recuse). See also Ex parte Melof, 553 So.2d 554, 556 (Ala.1989).

A mandamus petition is the proper method to review the trial court's denial of a motion to recuse. Ex parte Melof. However, the writ of mandamus is a drastic and extraordinary remedy and should be issued only...