(251) 299-0101

Recusal - § 12-24-3, Ala. Code 1975 - Attachments to Appellate Briefs - Newly Discovered Evidence

Startley Gen. Contractors, Inc., v. Water Works Bd. of the City of Birmingham, et al., [Ms. 1180292, Sept. 6, 2019] __ So. 3d __ (Ala. 2019). This per curiam opinion (Wise, Sellers, Mendheim, and Stewart, JJ., concur; Shaw and Bryan, JJ., concur in the result; Bolin, J., dissents; Mitchell, J., recuses himself) affirms Jefferson Circuit Court Judge Robert S. Vance, Jr.’s denial of Plaintiffs’ renewed motion seeking to have Judge Vance recuse himself. Plaintiffs argued that campaign contributions by the defendant and their attorneys, considered in the aggregate, required recusal under § 12-24-3, Ala. Code 1975. Ms. *9-10.

The Supreme Court affirmed, noting that the campaign contributions in question were for Judge Vance’s campaign for Chief Justice for the election held in November 2018, not for an “immediately preceding election.” The Court held that § 12-24-3 applies only to contributions made for an immediately preceding election cycle. Ms. *41-42.

The Court struck the Plaintiffs’ attachments to their appellate brief citing settled law that “attachments to briefs are not considered part of the record and therefore cannot be considered on appeal” and that appellate review “is restricted to the evidence and arguments considered by the trial court.” Ms. *17, quoting Roberts v. ASCO Equip. Co., 986 So. 2d 379, 385 (Ala. 2007) (internal citations and quotation marks omitted).

The Court rejected the Plaintiffs’ argument that it had submitted newly discovered evidence in support of its renewed motion to recuse because “newly discovered evidence is, among other things, evidence that could not have been discovered with the exercise of due diligence within the time for filing the first motion, and the evidence is not merely cumulative.’” Ms. *18, quoting Welch v. Jones, 470 So. 2d 1103, 1112 (Ala. 1985).

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