Ex parte Melof
| Decision Date | 09 November 1989 |
| Citation | 553 So.2d 554 |
| Parties | Ex parte Fred MELOF, et al. (Re Fred MELOF, et al. v. Guy HUNT, et al.) 88-1354. |
| Court | Alabama Supreme Court |
William J. Baxley and Joel E. Dillard of Baxley, Dillard & Dauphin, Birmingham, James P. Smith of Smith & Waldrop and Jerrilee Sutherlin, Huntsville, for petitioners.
Mark D. Wilkerson, James R. Seale, and Robert Bruce Rinehart of Haskell, Slaughter & Young, Montgomery, for respondents.
This case comes before us by a petition for writ of mandamus. The petitioners filed a class action on behalf of themselves and other Alabama taxpayers against Governor Guy Hunt, Revenue Commissioner James Sizemore, and State Treasurer George C. Wallace, Jr. The Melof complaint sought class certification on behalf of recipients of retirement benefits who have been subject to or who have paid state income tax on such benefits. The class includes former employees of local governments and private corporations. Further, the Melof complaint alleges that the Governor and the Commissioner have controlled and supervised a state income tax assessment program that allows unconstitutional exemptions for several classes of retirement income recipients. They allege that this violates the Fourteenth Amendment's equal protection clause, which, they contend, requires that all retirement benefits be taxed equally.
Four separate complaints (including the Melof complaint) were filed. Three of those actions were consolidated by Judge Mark Montiel. All of the complaints allege claims similar to those of the petitioners in this case and include those persons receiving military or non-civil service federal retirement benefits. The complaints diverge in their constitutional claims forming the basis for each complaint.
The Melof petitioners, upon filing their motion for consolidation, also filed a motion for recusal with the trial judge. As indicated above, the motion for consolidation was granted and the petitioners' action was consolidated with two other similar actions by Judge Montiel, but the motion for recusal was denied. The petitioners contend that Judge Montiel's "service as head of Governor Hunt's legal team" at the time when policies that are the subject matter of the litigation were formed, "combined with the fact that he was appointed by Governor Hunt approximately three months prior to the initiation of this litigation," should disqualify him from sitting as a judge in these cases.
The petitioners seek a writ that would require the immediate recusal of Judge Montiel. In support of their petition, the petitioners make the following allegations:
1. Judge Montiel was appointed assistant legal advisor by Governor Hunt on March 17, 1987. He was elevated to legal advisor on October 19, 1988, also by Governor Hunt.
2. A press release of December 22, 1988, by Governor Hunt notes that Montiel has "been very valuable to me as my legal advisor." During Montiel's tenure as legal advisor, Governor Hunt received from the Advisory Committee on Tax Reform a status report which noted that the Governor had directed an evaluation to determine if the state tax system was "fair and equitable." Also during Montiel's tenure as legal advisor, the State entered into contracts with three private law firms "to assist the Alabama Department of Revenue in preparing tax reform proposals in restructuring of Alabama taxing statutes and related constitutional provisions."
3. During Montiel's tenure as legal advisor to the Governor, his obligation to the Governor and his cabinet was to advise them on political issues and broad public policy issues, as well as on legal issues. The exact legal issue that is the focus of this litigation arises out of the official policy formulated by the Governor and the Commissioner when Montiel was legal advisor.
4. Montiel was appointed Circuit Judge for Montgomery County on January 17, 1989, by Governor Hunt. He has denied petitioner's motion to recuse, stating that "the present matter in controversy was not pending during the period" when he was providing legal advice to the Governor.
The petitioners have also filed an application for stay, a request for oral argument, and a brief in support of the petition and a substantial appendix thereto. This Court granted the stay on July 24, 1989. The defendants, Governor Hunt and Commissioner Sizemore, have responded to the petition. One of the three other classes, referred to as the Rinehart class, has responded to the petition and has filed a motion in opposition to the petition for writ of mandamus (the Governor and Commissioner joined the Rinehart class in their response as to the facts and the memorandum of law). The facts asserted by the Rinehart class in its response were disputed by the petitioners.
The response filed by the Governor, the Commissioner, and the Rinehart class deny that Judge Montiel, during his term as legal advisor to Governor Hunt, was responsible for formulating the policies that are the subject of this litigation. Further, these parties assert that the petitioners have failed to show any connection between the Judge and the formulation of those policies. It is important to note that neither of the two other classes involved in these actions, nor the defendants, join in the Melof motion for disqualification or recusal. When questioned at the hearing on the motion for recusal, each of those parties either had no position or was opposed to recusal.
Mandamus is the proper method by which to review whether recusal is required. Ex parte Hill, 508 So.2d 269 (Ala.Civ.App.1987). A writ of mandamus should be granted only where there is a clear showing that the trial court abused its discretion and exercised it in an arbitrary or capricious manner. Ex parte Rives, 511 So.2d 514 (Ala.Civ.App.1986), citing Ross v. Luton, 456 So.2d 249 (Ala.1984).
This Court has previously set out the requirements for mandamus:
Ex parte Auto-Owners Ins. Co., 548 So.2d 1029 (Ala.1989); citing Ex parte Edgar, 543 So.2d 682 (Ala.1989).
Canon 3(C), Canons of Judicial Ethics, sets forth the following guidelines with respect to disqualification of a judge:
These are not merely guidelines, but have the force and effect of law. In re Sheffield, 465 So.2d 350, 355 (Ala.1984); citing Wallace v. Wallace, 352 So.2d 1376, 1378 n. 1 (Ala.Civ.App.1977).
Judge Montiel, upon entering office, requested an opinion of the Judicial Inquiry Commission regarding recusal. He requested the opinion so that he would have clear rules to guide him in his capacity as a judge, in light of his prior position as legal advisor to the Governor. The Judicial Inquiry Commission on April 4, 1989, stated the following:
"[I]t is the opinion of the Commission that the Judge's previous employment as the Governor's Legal Advisor causes the Judge's disqualification only in those proceedings pending during the time of the Judge's service as Legal Advisor, whether or not the Judge actually participated by advising or representing the Governor. The judge is not disqualified from sitting in proceedings which arise after he assumed the bench so long as he has no personal bias or prejudice concerning the parties and he has no knowledge of the facts or considerations made in the Governor's office concerning the facts or legal issues considered as to the matter.
Judge Montiel stated at the hearing on the recusal motion that he had proceeded in these cases in accordance with that opinion. The petitioners have not proved that Judge Montiel had any personal knowledge of, or involvement with, this particular area of the law while he was acting as legal advisor. The evidence before us simply shows attempts during that period to change various tax laws generally. Any legislative attempts to change the present taxation scheme in Alabama would have no bearing on the propriety of Judge Montiel's hearing these cases contesting the constitutionality of the present taxation statutes. The evidence presented to this Court shows that the proposals made to the legislature by the tax reform committee suggested reform in many areas of state taxation. The evidence does not show, however, that these proposals addressed the constitutionality of the existing statutory scheme, nor that Judge Montiel was involved in these proposals. Should Judge Montiel be required to recuse...
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