Ex parte Price, CR-96-2093

• Citation: 715 So.2d 856
• Decision Date: 10 October 1997
• Docket Number: CR-96-2093
• Parties: Ex parte Walter J. PRICE, Jr. (In re STATE of Alabama v. Walter J. PRICE, Jr.).
• Court: Alabama Court of Criminal Appeals

Page 856

715 So.2d 856

Ex parte Walter J. PRICE, Jr. (In re STATE of Alabama v. Walter J. PRICE, Jr.).

CR-96-2093.

Court of Criminal Appeals of Alabama.

Oct. 10, 1997.

William N. Clark and Maxwell H. Pulliam, Jr., Birmingham, for petitioner.

John Jeffery Rich and Julian D. Butler, Huntsville, for Judge Joseph L. Battle.

LONG, Presiding Judge.

The petitioner, Walter J. Price, Jr., filed this petition for a writ of mandamus after Joseph L. Battle, circuit judge for the Twenty-third Judicial Circuit, denied his motion seeking recusal from his case of all circuit judges in Madison County, his motion to change venue, and his motion for a continuance. In his petition, Price asks us to direct Judge Battle to recuse all circuit judges in Madison County, to transfer venue, and to continue his case. Price, a former attorney in Huntsville who had been appointed as general administrator for the Madison County Probate Court, was indicted on four counts of taking money from estates over which he had been appointed administrator.

Price was indicted on May 9, 1997, and was arrested on June 5, 1997. The case was originally set for trial on August 4, 1997. Price filed a discovery motion and a motion for a continuance on July 18, 1997. On August 4, 1997, Price's case was called for trial. When it was called, the trial court denied the above motions. This petition followed. Price also filed in this Court a motion to stay the proceedings in the circuit court until this Court ruled on his mandamus petition. This Court granted the motion to stay, pending disposition of the mandamus petition.

Before mandamus may issue, four prerequisites must be satisfied. There must be 1) a clear legal right in the petitioner to the relief sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) no adequate remedy at law; and 4) the properly invoked jurisdiction of the reviewing court. State v. Williams, 679 So.2d 275 (Ala.Cr.App.1996).

Although mandamus is the appropriate method to challenge a pre-trial ruling on a motion to recuse, Ex parte Sanders, 659 So.2d 1036 (Ala.Cr.App.1995), it is not available to review a ruling on a motion for a change of venue based on pretrial publicity or a ruling on a motion for a continuance. These issues may be adequately reviewed by direct appeal. Ex parte Spears, 621 So.2d 1255 (Ala.1993). As to those matters, therefore, the petition is denied.

As to Price's contention that the trial court erred in denying his motion for recusal, Canon 3 C(1), Alabama Canons of Judicial Ethics, states, in pertinent part:

"(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:

"(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

"(b) He served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer in the matter, or the judge or such lawyer has been a material witness concerning it."

The Alabama Supreme Court in Ex parte Duncan, 638 So.2d 1332 (Ala.), cert. denied, 513 U.S. 1007, 115 S.Ct. 528, 130 L.Ed.2d 432 (1994), established the standard to be used to evaluate a motion to recuse. Recusal is necessary if "another person, knowing all of the circumstances, might reasonably question the judge's impartiality." 638 So.2d at 1334.

The Alabama Supreme Court recently in Ex parte Bryant, 682 So.2d 39 (Ala.1996), addressed an identical issue. In that case, Bryant, an attorney and general guardian and conservator for Mobile County, who was also charged with theft, filed a motion seeking the recusal of all the circuit judges in Mobile County. The trial court denied the motion for recusal. After this Court denied his original petition for the writ of mandamus, Bryant filed a petition with the Alabama Supreme Court. The Alabama Supreme Court, in granting the petition for the writ of mandamus, stated:

"The standard for recusal is an objective one: whether a reasonable person knowing everything that the judge knows would have a 'reasonable basis for questioning the judge's impartiality.' [ Ex parte] Cotton, 638 So.2d at 872 [ (Ala.1994) ]. The focus of our inquiry, therefore, is not whether a particular judge is or is not biased toward the petitioner; the focus is instead on whether a reasonable person would perceive potential bias or a lack of impartiality on the part of the judge in question....

"....

"Applying these principles to Bryant's first contention, we must determine if the extraordinary facts underlying the case against Bryant and the peculiar nature of the case against him 'are such that it is reasonable for a party, for members of the public, or for counsel to question the impartiality of' a circuit court judge from Mobile County. Cotton, 638 So.2d at 872. The issue is not whether any of those judges are actually biased against Bryant. The undisputed facts show the following: (1) Bryant is accused of theft from conservatorships and estates over which he was appointed by Mobile County judges to act as guardian or conservator; (2) The theft that he is accused of is both systematic and enormous ($3,000,000-plus); (3) The allegations against Bryant have been the focus of intense media coverage; (4) Bryant's change of venue motion was granted because of the high-profile nature of the case against him and the perceived local bias against him; (5) The first Mobile County circuit court judge to whom Bryant's case was assigned chose voluntarily to remove himself from Bryant's case after Bryant made his ...