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Judicial Recusal and Appellate Issue Preservation

Malloy v. Peters, [Ms. 2190452, Sept. 25, 2020], ___ So. 3d ___ (Ala. Civ. App. 2020). The court (Moore, J.; Thompson, P.J., and Donaldson, Edwards, and Hanson, JJ., concur), affirms the Montgomery Circuit Court’s order dismissing a complaint seeking damages from the Alabama Department of Corrections, the Alabama Board of Adjustment and several Department of Corrections officers for money damages from an alleged destruction of personal property.

The court first rejects appellant’s contention the trial-court judge erred in denying a motion to recuse:

“‘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 Parr, 20 So. 3d 1266, 1269 (Ala. 2009) (quoting Ex parte George, 962 So. 2d 789, 791 (Ala. 2006)).

Ms. **4-5. The court concludes the appellant failed to show the trial court exceeded its discretion because mere adverse rulings do not prove bias or prejudice:

“It is well-settled that ‘[a]dverse rulings during the course of the proceedings are not by themselves sufficient to establish bias and prejudice.’ Hartman v. Board of Trustees of the University of Alabama, 436 So. 2d 837, 841 (Ala. 1983). ‘[R]ulings on issues of law or attitudes concerning legal issues’ do not establish bias or prejudice requiring recusal unless those rulings or attitudes are the product of bias and prejudice of an extra-judicial source. Thode, [The Code of Judicial Conduct – The First Five Years in the Courts, 1977 Utah L. Rev. 395,] 405.”

In re Sheffield, 465 So. 2d 350, 357 (Ala. 1984).

Ms. **5-6.

The court also finds the judgment is due to be affirmed because the appellant failed to discuss in his opening brief an issue on which the trial court might have relied as a basis for its judgment, as such a failure requires affirmance because the reviewing court will not presume error on the part of the trial court:

“‘“... [T]he failure of the appellant to discuss in the opening brief an issue on which the trial court might have relied as a basis for its judgment, results in an affirmance of that judgment. [Fogarty v. Stallworth, 953 So. 2d 1225, 1232 (Ala. 2006)]. That is so, because ‘this court will not presume such error on the part of the trial court.’ Roberson v. C.P. Allen Constr. Co., 50 So. 3d 471, 478 (Ala. Civ. App. 2010) (emphasis added). See also Young v. Southern Life & Health Ins. Co., 495 So. 2d 601 (Ala. 1986).’” “Scrushy v. Tucker, 70 So. 3d 289, 307 (Ala. 2011) (quoting Soutullo v. Mobile Cty., 58 So. 3d 733, 739 (Ala. 2010)) ....”

Forbes v. Brawley, 295 So. 3d 1101, 1106 (Ala. Civ. App. 2019) (some emphasis omitted) (recognizing the application of the above-quoted principle in the context of an appeal from a judgment granting a motion to dismiss).

Ms. **6-7.

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