Mandamus Petition Denied when Moot because Petition no Longer presents a Justiciable Controversy


Ex parte Taylor, [Ms. 2200379, Apr. 2, 2021], ___ So. 3d ___ (Ala. Civ. App. 2021). The court (Moore, Judge; and Thompson, P.J., and Edwards, Hanson, and Fridy, J.J., concur), unanimously dismisses a petition for a writ of mandamus requesting an order directing Montgomery Circuit Judge Anita L. Kelly to enter an order on a father’s pending motion for pendente lite relief concerning custody of minor children when that motion – and subsequent follow-up motions imploring Judge Kelly to rule – had been pending before the circuit court for almost 500 days. Upon receipt of the father’s petition on February 22, 2021 requesting mandamus relief, the court entered an order on February 23, 2021 directing Judge Kelly to file an answer by February 26, 2021 and to “explain why she has failed to rule on the pendente lite matters pending before her and the request for a final hearing filed by [the father].” Ms. [4]. On February 26, 2021, Judge Kelly’s judicial assistant e-mailed to the clerk of the Court of Civil Appeals two orders that had been entered which disposed of the request for pendente lite relief by awarding father physical custody of the children, enjoining mother from removing the children from Montgomery County, and suspending the father’s child-support obligation. Id. Neither of Judge Kelly’s orders complied with the directive to explain why she failed to rule on the father’s motions. Ms. *5. Nevertheless, the Court of Civil Appeals dismisses the father’s petition as moot because Judge Kelly’s order effectively granted all the relief sought by the father in his mandamus petition, explaining

…The filing of a petition for the writ of mandamus does not divest the trial court of jurisdiction unless the action is stayed, and, if the trial court grants the relief that is sought in the mandamus petition, the petition may be mooted. Ex parte McDaniel, 291 So. 3d 847, 851 n.2 (Ala. 2019). A petition for the writ of mandamus is moot when there is no real controversy and it seeks to determine an abstract question that does not rest on existing facts. State ex rel. Eagerton v. Corwin, 359 So. 2d 767, 769 (Ala. 1977). To the extent that the petition seeks relief requiring Judge Kelly to grant the father's motions, the petition for the writ of mandamus is moot because it no longer presents a justiciable controversy. See Ex parte St. John, 805 So. 2d 84, 686 (Ala. 2001).

Ms. * 6. Because the delay was attributable solely to Judge Kelly, and not the mother, the Court of Civil Appeals was precluded from granting the father any additional relief despite the prejudice suffered and expenses incurred, noting

The father requests attorney's fees and costs for filing this mandamus petition, but this court cannot order Judge Kelly, who, according to the materials before this court is the sole person responsible for the delay in entering the orders on the father's motions, to pay those fees and costs. See Ex parte Town of Lowndesboro, 950 So. 2d 1203 (Ala. 2006) (concluding that an award of attorney fees and expenses against an officer of the State is precluded by the doctrine of sovereign immunity set out in Art. 1, § 14, Ala. Const. 1901 (Off. Recomp.)).

Ms. **7-8.

The Court of Civil Appeals publicly admonishes the judge, stating

A judge is expected to "dispose promptly of the business of the court, being ever mindful of matters taken under submission," Canon 3.A.(5), Ala. Canons of Jud. Ethics, and to "diligently discharge his [or her] administrative responsibilities," Canon 3.B.(1), Ala. Canons of Jud. Ethics. We note that Judge Kelly's consistent dereliction of duty in promptly disposing of the cases before her led to Judge Kelly's being disciplined by the Court of the Judiciary in 2018. Based partly on her past history, this court ordered Judge Kelly to explain why she had not ruled on the father's motion for pendente lite custody, but Judge Kelly did not respond to that order or otherwise file an answer to the mandamus petition when her judicial assistant filed the February 26, 2021, orders, presumably relying on that action to moot the mandamus petition. See Montgomery Cnty. Dep't of Hum. Res. v. A.S.N., 215 So. 3d 582 (Ala. Civ. App. 2016) (recounting Judge Kelly's pattern and practice of entering orders only after petitions for the writ of mandamus had been filed requesting that she be required to adjudicate actions over which she was presiding and this court had entered orders requiring her to file answers to those petitions). Because this court does not have jurisdiction to do anything other than dismiss a moot case, see K.L.R. v. K.S., 201 So. 3d 1200 (Ala. Civ. App. 2016), it appears that this gambit has relieved Judge Kelly of any responsibility to this court for explaining her inaction. However, we once again admonish Judge Kelly that the public places great confidence in judges to act with integrity in discharging their judicial duties. See, generally, Ex parte Hall, [Ms. 1180976, Nov. 6, 2020] ___ So. 3d ___ (Ala. 2020). In particular, in cases involving the delicate matter of the custody of children, any delay in disposing of such cases is contrary to the children's best interests, see Durham v. Sisk, 628 So. 2d 873, 875 (Ala. Civ. App. 1993) ("The consequences of delaying the opportunity for correction of child custody problems could include preventable damage to a child's well-being, physically, emotionally, or otherwise."), and should be steadfastly avoided in future cases.

Ms. **10-12.

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