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JUDICIAL RECUSAL - EX PARTE CRAWFORD

Ex parte Crawford, [Ms. 2150868, Oct. 14, 2016] __ So. 2d __ (Ala. Civ. App. 2016). The Court of Civil Appeals denies a petition for a writ of mandamus which sought to direct a Lauderdale circuit judge to recuse himself from further presiding over an underlying divorce case between the petitioner and her husband. The wife contended that because the judge received an ex parte communication from a non-party, the superintendent of a local school system, there was a reasonable basis for questioning the judge's impartiality. The Court of Civil Appeals denies the petition upon finding that while the judge did indeed receive an unsolicited ex parte communication from the school superintendent, the wife failed to show how she had been materially prejudiced by the communication such that recusal was not warranted.

The statement of the standard of review is well-reasoned and helpful:

"A trial judge's ruling on a motion to recuse is reviewed to determine whether the judge exceeded his or her discretion. See Borders v. City of Huntsville, 875 So. 2d 1168, 1176 (Ala. 2003). The necessity for recusal is evaluated by the 'totality of the facts' and circumstances in each case. [Ex parte City of] Dothan Pers. Bd., 831 So. 2d [1,] 2 [(Ala. 2002)]. The test is whether '"facts are shown which make it reasonable for members of the public, or a party, or counsel opposed to question the impartiality of the judge."' In re Sheffield, 465 So. 2d 350, 355–56 (Ala. 1984) (quoting Acromag-Viking v. Blalock, 420 So. 2d 60, 61 (Ala. 1982))."

Ex parte George, 962 So. 2d 789, 791 (Ala. 2006).

"The presumption in Alabama is that a judge is qualified and unbiased. Rikard v. Rikard, 590 So. 2d 300 (Ala. Civ. App. 1991). The burden is on the moving party to present evidence establishing the existence of bias or prejudice. Rikard. Disqualifying prejudice or impartiality must be of a personal nature and must stem from an extrajudicial source. Rikard."

Zimmerman v. Zimmerman, 655 So. 2d 1042, 1044 (Ala. Civ. App. 1995). "'The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.'" Medical Arts Clinic, P.C. v. Henry, 484 So. 2d 385, 387-88 (Ala. 1986)(quoting United States v. Grinnell Corp., 384 U.S. 563, 583 (1966)).

Pursuant to Canon 3.A.(4), Alabama Canons of Judicial Ethics, "[a] judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte communications concerning a pending or impending proceeding." "Ex parte communications are those that involve fewer than all of the parties who are legally entitled to be present during the discussion of any matter." James J. Alfini, Steven Lubet, Jeffrey Shaman, and Charles Gardner Geyh, Judicial Conduct and Ethics § 5.02, 5–2 (4th ed. 2007).

Although "a private interview or conversation between a judge and a witness or non-party (where interests which might be affected by such conduct are not represented) could be deemed an impropriety and worthy of criticism," Stewart v. Stewart, 354 So. 2d 816, 820 (Ala. Civ. App. 1977), a showing that such an ex parte communication has occurred, without more, might not be sufficient to require a trial judge's disqualification. The party seeking the trial judge's recusal must present sufficient evidence showing that the trial judge has been biased or prejudiced by the ex parte communication "such that 'a reasonable person knowing everything that the [trial] judge knows would have a "reasonable basis for questioning the [trial] judge's impartiality."'" S.J.R. v. F.M.R., 984 So. 2d 468, 472 (Ala. Civ. App. 2007)(quoting Ex parte Bryant, 682 So. 2d 39, 41 (Ala. 1996), quoting in turn Ex parte Cotton, 638 So. 2d 870, 872 (Ala. 1994)). See also Canon 3.C.(1), Alabama Canons of Judicial Ethics ("A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned ...."); and Medical Arts Clinic, P.C., 484 So. 2d at 387 (holding that when a trial judge receives an ex parte communication, the evidence must be "sufficient to show bias or prejudice so as to disqualify the trial judge").

"Attorneys usually realize that it is improper to initiate ex parte communications with a judge regarding a case that is presently pending before him, but the same is not necessarily true of members of the general public, who may pick up the telephone and try to call a judge regarding such a matter or send him a letter. In fact, it is not at all uncommon for a judge to receive calls or letters from the public – particularly in a high-profile case. Judges should do whatever they can to prevent such inadvertent ex parte communications from occurring, and should endeavor to disregard such communications when they inadvertently receive them. But the mere fact that an unsolicited ex parte communication has taken place does not ordinarily warrant judicial disqualification – much less reversal of any decision rendered by the challenged judge. This is true a fortiori where the ex parte communication was received by the judge after he rendered that decision.

"There are sound reasons for not mandating judicial disqualification on the basis of a judge's inadvertent receipt of letters or telephone calls. For one thing, [if] the rule is otherwise – and a judge were to be disqualified from presiding over a proceeding merely because he received a letter from a party or someone else who is interested in a matter pending before that judge – few cases would ever be resolved. At some point, however, a judge's receipt of unauthorized communications about a case may so affect his impartiality, or the appearance of that impartiality, that he would be duty bound to recuse. This is so, a fortiori, where the inadvertently contacted judge has voluntarily elected to respond to such communications."

Richard E. Flamm, Judicial Disqualification: Recusal and Disqualification of Judges § 14.5.5, pp. 395-97 (2d ed. 2007)(footnotes omitted).

When a trial judge receives an ex parte communication, "prompt disclosure of the ex parte communication to all affected parties may avoid the need for other corrective action." Elfin, et al., Judicial Conduct and Ethics § 5.05, at 5–22. However, "[w]here irremediable prejudice has occurred, of course, disclosure will not be sufficient to avoid disqualification or reversal." Id. at 5-23.

Ms. *12-16.

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