Ex parte Strickland
| Citation | 401 So.2d 33 |
| Parties | Ex parte James T. STRICKLAND, Circuit Judge of the Thirteenth Judicial Circuit of Alabama. (Re: Judge James T. STRICKLAND v. Honorable Charles WRIGHT, Presiding Judge of the Alabama Court of the Judiciary). 80-325. |
| Decision Date | 02 July 1981 |
| Court | Supreme Court of Alabama |
Joseph J. Boswell, Mobile, and Alton R. Brown, Jr., of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for petitioner.
Rosa G. Hamlett, Asst. Atty. Gen., for respondent.
James T. Strickland, Circuit Judge of the Thirteenth Judicial Circuit of Alabama, petitions for the writ of mandamus and the writ of prohibition directed to Honorable Charles Wright, as Presiding Judge of the Alabama Court of the Judiciary. Petitioner seeks a writ of mandamus ordering Judge Wright to strike a motion of the Alabama Judicial Inquiry Commission seeking to tax against petitioner the costs incident to all or part of oral depositions taken in an action against the petitioner for violation of the Canons of Judicial Ethics. Petitioner also seeks a writ of prohibition to prevent Judge Wright from granting the Commission's motion to tax those costs.
The Court of the Judiciary found petitioner guilty of violating several of the Alabama Canons of Judicial Ethics and ordered that he be suspended from the office of circuit judge without pay for six months. Petitioner appealed to this court from that order and we affirmed. Respondent thereafter granted the Judicial Inquiry Commission's motion and taxed petitioner with $3,093.69 in costs incident to the taking of depositions in the action against him. Of those costs the sum of $1,509.07 was incurred in taking depositions that were not used at trial. The balance of the costs represented costs incurred in taking those which were used at trial; those of petitioner and one Joyce Sasso.
Petitioner raises two separate issues by his petition: (1) whether the Court of the Judiciary has authority to tax costs of depositions taken by the Judicial Inquiry Commission in preparing for trial regardless of whether they are used at trial; and, (2) whether the Court of the Judiciary abused its discretion when taxing costs against petitioner.
Petitioner asserts that the Court of the Judiciary is not given authority under Ala.Const. 1901, Amend. No. 328 (the so-called Judicial Article), § 6.18, to tax costs against a defendant judge. That section does, however, authorize the Court of the Judiciary to "... apply such other sanction as may be prescribed by law ...." Furthermore, it authorizes this court to adopt procedural rules governing the Court of the Judiciary. Rule 10, of the Rules of Procedure of the Court of the Judiciary, adopted by this court, provides:
The process and procedure before the Court shall be as simple and direct as reasonably may be. Except where inappropriate, or otherwise provided for by these rules, the provisions of the Alabama Rules of Civil Procedure and the rules of evidence used in civil cases in Alabama shall govern proceedings before the Court, but the allegations of the complaint must be proved by clear and convincing evidence.
The Rules of Procedure, Alabama Court of the Judiciary, make no specific provision regarding the taxing of costs; however, rule 54(d), ARCP, provides:
(d) Costs. Except when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs, and this provision is applicable in all cases in which the state is a party plaintiff in civil actions as in cases of individual suitors....
Additionally, Code 1975, § 12-21-144, provides:
The costs of any deposition introduced, in whole or in part, into evidence at the trial by the party taking it shall be taxed as costs in the case upon the certificate of the person before whom the deposition was taken; the costs of depositions in other cases shall be taxed as costs in the case only if the court so directs.
We are persuaded by reason and logic as well as the authorities, including those referenced above, that the Court of the Judiciary is empowered by law to tax the costs of any deposition introduced, in whole or in part, into evidence at trial by the party taking it, upon the certificate of the person before whom the deposition was taken; the costs of depositions in other cases shall be taxed as costs in the case only if the court so directs. Taxation of costs of depositions not actually used at trial is within the discretion of the trial court, Pick-Bay Company v. Younkin, 287 Ala. 103, 248 So.2d 570 (1971), to the contrary notwithstanding. Pick-Bay, in one respect, was bottomed upon Code 1940 as amended Tit. 11, § 77, and held that when costs are improperly taxed against one not liable to pay them, the proper method to raise the point is by a motion to retax (under the provisions of § 77). Section 65 of...
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