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JUDICIAL RECUSAL - EX PARTE ROGERS

Ex parte Rogers, [Ms. 2150828, Aug. 26, 2016] __ So.3d __ (Ala. Civ. App. 2016). Former wife sought recusal of Judge Dempsey, the only circuit judge allotted the 34th Judicial Circuit, in an original divorce proceeding because former husband is the son of an attorney who practiced before Judge Dempsey for many years. Judge Dempsey granted the recusal motion. Two years later, former husband filed a post-divorce proceeding seeking modification of custody, child support obligations, and seeking to hold former wife in contempt for violating certain provisions of the divorce judgment. Former wife again sought Judge Dempsey's recusal on the same grounds, but Judge Dempsey refused to step aside. Former wife then filed a petition for a writ of mandamus seeking an order directing Judge Dempsey to recuse himself.

The Court of Civil Appeals denies the petition for writ of mandamus, finding that former wife had not produced substantial evidence to sustain her burden of proving whether a reasonable person could question Judge Dempsey's partiality and whether there is an appearance of impropriety. Ms. *18. Judge Dempsey's previous recusal in the underlying divorce case, alone, is not sufficient to mandate his recusal in the later post-divorce proceeding. Id. The standard for recusal is not whether the trial judge will be placed in an awkward position, but "whether another person, knowing all the circumstances, might reasonably question the judge's impartiality – whether there is an appearance of impropriety." Ms. *19, quoting Ex parte Duncan, 638 So.2d 1332, 1334 (Ala. 1994). The Court of Civil Appeals reiterates that the

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.

Id., quoting Ex parte Balogun, 516 So.2d 606, 609 (Ala. 1987). "Mandamus will lie to compel a judge's recusal only when there is sufficient evidence to call into question the impartiality of the judge." Ibid., quoting Ex parte Bank of Am. N.A., 39 So.3d 113, 120 (Ala. 2009). Here the evidence was not sufficient to call Judge Dempsey's impartiality into question or to show an appearance of impropriety so as to require recusal, so former wife failed to show a clear legal right to mandamus relief.

Related Documents: Ex parte Rogers

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