(251) 299-0101

JUDICIAL RECUSAL & PRELIMINARY INJUNCTION - EX PARTE ADAMS

Ex parte Adams, [Ms. 1140732, 1141293, May 6, 2016] __ So. 3d __ (Ala. 2016). Here, the Court is again confronted with issues arising from the administration of the estate of a deceased attorney, Clifford Cleveland, by the Autauga Circuit Court. See Ex parte Adams, 168 So. 3d 40 (Ala. 2014), discussing contentious history over administration of Mr. Cleveland’s estate by competing beneficiaries. In the instant proceeding, the Supreme Court denies a petition for writ of mandamus which sought, among other things, an order directing the Autauga Circuit Court to grant the executor’s motion for recusal and in a cross-petition review of whether the circuit court properly entered a preliminary injunction given the requirements of Rule 65(d), Ala. R. Civ. P.

The Court denied the petition which sought recusal upon concluding the petitioner failed to prove legal bias and prejudice. Citing Ex parte Bryant, 682 So. 2d 39, 41 (Ala. 1996), the Court reiterated the test for recusal as

The standard 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 [870] 872 [(Ala. 1994)]. The focus of our inquiry, therefore, is not whether a particular judge is or is not biased towards 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.

The Court rejected petitioner’s contention that a series of rulings favorable to the respondent, an attorney who practiced regularly before the judge did not meet the petitioner’s burden of proving “an appearance of partiality” tainting the proceedings. Noting that “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion,” (Liteky v. United States, 510 U.S. 540, 548 (1994)), the Court holds that “[t]he alleged bias and prejudice to be disqualifying must stem from an extra judicial source and must result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” Ms. at 25-6, quoting Kitchens v. Maye, 623 So. 2d 1082, 1086 (Ala. 1993)(underlined emphasis in original). Although observing that the “alleged incidents of unprofessional behavior attributed to [the judge] remained ‘troubling,’” Ms. *29, the conduct did not rise to the level required in Liteky, supra:

[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extra judicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. ... Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge’s ordinary efforts at courtroom administration – even a stern and short-tempered judge’s ordinary efforts at courtroom administration – remain immune.

Ms. *28, quoting Liteky, 510 U.S. at 555-56 (some emphasis omitted; some emphasis added; internal citation omitted).

As to the cross-petition regarding the alleged insufficiency of the injunction order, the Court strictly construed Rule 65(d) to require

... both whether the evidence in the record supports the issuance of the preliminary injunction and whether the form of the preliminary-injunction order itself complies with the requirements of Rule 65(d)(2). ...

Ms. *30. As to the evidentiary showing, the Court cites Perley ex rel Tapscan, Inc. v. Tapscan, Inc., 646 So. 2d 585, 587 (Ala. 1994) as requiring,

In order for a trial court to grant a preliminary injunction, the plaintiff must show all of the following:

(1) that without the injunction the plaintiff would suffer immediate and irreparable injury;

(2) that the plaintiff has no adequate remedy at law;

(3) that the plaintiff has at least a reasonable chance of success on the ultimate merits of his case; and,

(4) that the hardship imposed on the defendant by the injunction would not unreasonably outweigh the benefit accruing to the plaintiff.

Ms. *30-1. As to the form requirement of Rule 65(d)(2), the Court quoted from the text of the rule:

Every order granting an injunction shall set forth the reasons for its issuance; shall be specific in term; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

Ms. *31. Because the injunction order did not comply with the requirements of Rule 65(d)(2), the Court did not consider whether the evidence ultimately supported the issuance of the preliminary injunction on authority of Marathon Constr. & Demolition, LLC v. King Metal Recycling & Processing Corp., 129 So. 3d 272, 276, n. 3 (Ala. 2013). Ms. *31-2. Because the requirements of Rule 65(d)(2) are mandatory, and because the temporary injunction order failed to meet those mandatory requirements, the preliminary injunction order was reversed and the case remanded for further proceedings.

Related Documents: /documents/News-PDFs/ex-parte-adams-1141293-5-6-16-(1).pdf

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