Sufficiency of Mandamus Petition - Rule 21(a)(1)(E), Ala. R. App. P.


Ex parte Boone Newspapers, Inc., et al., [Ms. 1190995, Feb. 12, 2021], ___ So. 3d ___ (Ala. 2021). The Court (Parker, C.J., and Bolin, Shaw, Wise, Bryan, Mendheim, Stewart, and Mitchell, JJ., concur; Sellers, J., dissents) denies Defendants’ mandamus petition seeking recusal of Dallas Circuit Judge Collins Pettaway, Jr. in Toure’s defamation action. The petition was deficient for a number of reasons, for example,

The Newspaper defendants state that Judge Pettaway served as counsel for Toure and her husband, Hank Sanders, in Sanders v. Smitherman, 776 So. 2d 68 (Ala. 2000). However, the Newspaper defendants did not raise this issue in their motion for recusal. See Ex parte Montgomery Cnty. Dep’t of Hum. Res., 294 So. 3d 811, 818 n. 4 (Ala. Civ. App. 2019) (noting that petitioner may not raise in mandamus petition new questions that he did not raise in motion for recusal). Further, beyond mentioning this issue in their statement of facts, the Newspaper defendants do not develop this issue in their petition. They do not include it in their statement of reasons why the writ of mandamus should issue, and they do not cite any case for the proposition that a judge must recuse himself if he represented a party two decades earlier. Thus, even construing the Newspaper defendants’ brief mention of this issue as an argument, it fails under Rule 21(a)(1)(E), Ala. R. App. P., which requires a mandamus petition to contain “[a] statement of the reasons why the writ should issue, with citations to the authorities and statutes relied on.” (Emphasis added.) “[F]ailure to cite authority supporting an argument [in a mandamus petition] ‘provides this Court with an ample basis for refusing to consider th[e] argument[] ....’” Ex parte Price, 47 So. 3d 1221, 1225 (Ala. 2010) (quoting Ex parte Showers, 812 So. 2d 277, 281(Ala. 2001)).

Ms. **4-5.

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