Summary
In Thompson, the petitioners claimed that Judge McElroy was formerly an assistant attorney for the City of Birmingham and that he was a prosecution oriented judge.
Summary of this case from In re WhiteOpinion
6 Div. 495.
January 15, 1929. Rehearing Denied February 12, 1929.
Original petition of Von. L. Thompson and others for mandamus to Hon. J. Russell McElroy, as Judge of the Tenth Judicial Circuit. Demurrer sustained. Writ denied.
Certiorari denied by Supreme Court in Ex parte Thompson et al., 219 Ala. 139, 121 So. 432.
In substance, the petition alleges that respondent J. Russell McElroy is one of the judges of the Tenth judicial circuit of Alabama, at Birmingham in Jefferson county, being designated as judge No. 11; that petitioners have on various occasions made bail bonds for defendants who had been convicted in the recorder's court of the city of Birmingham and who appealed their cases to the circuit court, and that many of said appeal cases are now pending in the criminal division of said circuit court undetermined; that "on sundry and various occasions a number of defendants for whom petitioners have made their appeal bonds failed to appear for trial when their cases were called in the said circuit court, to wit, and, as a result thereof, forfeitures were entered by the trial judge and notice was issued by the clerk and to each defendant and to petitioners as their bondsmen, and notices were duly served on petitioners as required by law to appear at the next term of said court to show cause why said forfeitures should not be made final, etc., as provided by law, but such notices have not been served on all the defendants hereinafter named and referred to, and there has not been two returns of the officers on each defendant 'not found,' the names of said defendants and the number of their cases are set forth on Exhibit A and hereto attached and made a part of this petition"; that "there is now pending in said circuit court on appeal said cases as aforesaid and set out in Exhibit A and your petitioners appear and are the bondsmen for each of said defendants, and the cases referred to are proceedings on a forfeited bail bond against the defendants and their bondsmen, and petitioners are the bondsmen in each case, and the issues therein presented for trial are as to whether or not said forfeiture was properly and legally entered in the first place; whether or not the defendants and their bondsmen can produce sufficient and legal excuses for setting aside said forfeitures; whether said forfeitures should be made final, and for what amount as provided by law." It is further alleged that in each of said cases the defendant and petitioners as codefendants and bondsmen have a good and sufficient excuse for setting aside said forfeiture and for not making it final, or, if made final, for some nominal amount, all which is left to the discretion of the court, and in each case petitioners as codefendants and bondsmen have filed and are filing objections to the trying of said cases on the date set, for that no notice has been issued and served on defendants and petitioners, setting said date on which said cases should be tried; that petitioners are filing and have filed pleas setting up defenses to the merits of said cases and in each case setting up a statement of facts and in each case demanding a trial by jury; that, while no formal notice has been issued and served on petitioners or the defendants, each of said cases has been set by order of respondent for trial before him on a date on which there can be no juries.
It is further alleged that respondent is disqualified and not competent by reason of interest in the city of Birmingham to try said cases set forth on Exhibit A, said interest growing out of the fact that respondent was formerly and until his appointment as circuit judge in the employ of the city of Birmingham as assistant city attorney, and did appear on many occasions representing the city of Birmingham in the recorder's court, prosecuting various parties charged with violation of city ordinances, and appearing in the circuit court as prosecuting persons who appealed their cases from the recorder's court; that respondent "is awake to the interests of the city of Birmingham and which interest is exhibited by him whether consciously or not in his judicial actions or acts in appealed cases from the recorder's court," etc., such interest and partiality being shown by the following official acts:
That, soon after entering upon his duties as such judge, respondent, without warning and notice to any defendant, or bondsmen, made an order dismissing several hundred such appealed cases, causing much hardship, etc.; that respondent brought before the judges of the circuit and procured the adoption of a rule automatically setting all such appealed cases for trial on Monday after seven days after the approval of appeal bonds; that respondent instructed the clerk not to send to any other judge than himself, nor to allow any person to take to any other judge for order, any forfeiture sheets in city appeal cases, and directing matters involving conditional forfeitures on city appeal cases to be set before respondent; that respondent gave a public interview to the effect that professional bondsmen had contributed a substantial sum of money to finance a suit contesting the constitutionality of the act under which respondent was appointed as circuit judge, and that those who made appeal bonds from the recorder's court to the circuit court were making a determined effort to embarrass the administration of justice and to place every obstacle in the way of the expeditious enforcement of the law, and that said bondsmen had done all they could to defeat him for judge in the primary.
It is averred that petitioners belong to the class referred to as making bonds in appealed cases and as having contributed to test the constitutionality of the act under which respondent holds office. It is further alleged: That respondent did set aside an order of another of the circuit judges continuing certain appealed cases and setting a date for the trial of same. That respondent has on numerous occasions expressed himself as though interested in the affairs of the city of Birmingham, thus: "That there were too many forfeitures in the appealed cases; * * * that they should be stopped by dealing severely with those who forfeited at the time that they were set for final action, and that no defendant permitting a forfeiture on his bond should have a trial; that said forfeiture should be made final for the full amount of the undertaking regardless of excuses; that the surrender of defendants or the appearing of defendants after the forfeiture was taken had no bearing and was no excuse or cause to him in the punishment and dealings with said forfeiture in the future." That from the acts and declarations of respondent it appears that he proposes to tax all bondsmen where forfeitures are entered with the forfeiture cost, the full amount of the undertaking in the bond, the cost of the original case, as well as require the defendant to plead guilty and agree to assessment against him of a fine together with the costs. It is further specified that respondent has refused to entertain excuses from defaulting defendants as provided by Code, § 3393, but insists that all such excuses be made to him on final hearing, at which time, from all indications, respondent purposes to deal harshly with defendants and bondsmen, and that respondent has arbitrarily assumed absolute jurisdiction over such cases, forbidding other judges to act therein; that petitioners presented to respondent a petition requesting him to recuse himself in such a case against a named defendant and petitioners as bondsmen, which said petition respondent denied.
The prayer is for writ of mandamus commanding respondent to refrain, as such judge, from trying any of the cases set forth in Exhibit A, and to recuse himself therein.
Respondents' grounds of demurrer 2, 3, 4, 6, 7, and 8 are as follows:
(2) Said petition does not show any sufficient legal excuse why J. Russell McElroy, as judge No. 11 of the circuit court of the Tenth judicial circuit, should recuse himself and decline to hear or pass upon the controversy mentioned in the petition.
(3) Said petition fails to show with sufficient certainty any disqualifying or prejudicial interest on the part of J. Russell McElroy, as judge No. 11 of the Tenth judicial circuit.
(4) Said petition fails to show that J. Russell McElroy, as judge No. 11 of the Tenth judicial circuit, is incompetent to pass on the controversy referred to in the petition.
(6) Said petition does not show that J. Russell McElroy, as judge No. 11 of the Tenth judicial circuit of Alabama, is biased for or against the petitioners or any of the parties interested in the causes referred to in the petition.
(7) Said petition does not show that J. Russell McElroy is prejudiced for or against the petitioner or any other parties interested in the causes referred to in the petition.
(8) Because said petition shows on its face that petitioners are not entitled to the relief prayed for.
Von L. Thompson, Cora R. Thompson, and Theodore J. Lamar, all of Birmingham, for petitioners.
Mandamus is the remedy to require a judge to recuse himself. Doty v. Pope, 213 Ala. 4, 101 So. 883; Hudson v. Hudson, 204 Ala. 75, 85 So. 282; Crook's Case, 124 Ala. 479, 27 So. 432, 82 Am. St. Rep. 190; Ex parte Gay, 213 Ala. 5, 104 So. 898; Bryce v. Burke, 172 Ala. 219, 55 So. 635; W. O. W. v. Alford, 206 Ala. 18, 89 So. 528; Ex parte Dew, 7 Ala. App. 437, 62 So. 261; Smith v. Pitts, 139 Ala. 152, 36 So. 20. It is anything that will make the court biased or prejudiced based upon interest that will disqualify a trial judge. Crook's Case, supra; Gill's Case, 61 Ala. 169; Freeman on Judgments, § 145; Code 1923, § 8570; Const. 1901, § 18.
Horace C. Wilkinson, of Birmingham, opposed.
Brief did not reach the Reporter.
Von L. Thompson, Anna M. Thompson, and Foy M. Thompson apply to this court for an original mandamus, to J. Russell McElroy, judge No. 11 of the circuit court for the Tenth judicial circuit of Alabama (Gen. Acts Ala. 1927, pp. 671, 672), commanding him to recuse himself from the trial or other handling of certain cases named in the petition, pending at the time the petition was filed in said circuit court of the Tenth judicial circuit. All of the cases named in the petition are "cases appealed from the Recorder's Courts of the City of Birmingham to the Circuit Court of said (Tenth) Judicial Circuit," and it would seem, though it is unnecessary for us to so hold, that said cases were intended by the Legislature (Acts 1927, p. 671, supra) to be tried before the said judge No. 11, if not exclusively, in preference to every other judge of said judicial circuit.
Whatever may be the practice in other jurisdictions, in ours, it appears that, by statute (Code of Ala. 1923, § 8978), one against whom the writ of mandamus is sought, or the defendant, may test the sufficiency of the petition filed, by demurrer. That has been done in this case.
Boiled down and stripped of immaterial or superfluous statements, the petition filed here attempts to set up or allege matters which it is conceived by petitioners disqualify the said J. Russell McElroy, judge No. 11, aforesaid, from sitting as judge in the cases described in the petition. Code of Ala. 1923, § 8570. The procedure followed is that prescribed by law. In other words "where the Judge is shown to be incompetent [disqualified], 'mandamus is the proper remedy to compel him to certify his incompetency, as a preliminary to the selection of a qualified Judge in his stead.' " Woodmen of the World v. Alford, 206 Ala. 18, 89 So. 528, and cases cited in the opinion in same ( 206 Ala. 22) 89 So. 532.
The grounds of disqualification of a judge to sit in any given case are, in addition to those listed in the statute (Code 1923, § 8570, supra), any of those imposed by the common law. Woodmen of the World v. Alford, supra; Pegues v. Baker, 110 Ala. 251, 17 So. 943. Of these common-law grounds of disqualification, it was said in Ex parte State Bar Association, 92 Ala. 113, 118, 8 So. 768, 770: "The interest [of the judge] which will disqualify must be a pecuniary one, or one affecting the individual rights of the Judge." See McConnell v. Goodwin, Judge, 189 Ala. 390, 66 So. 675, Ann, Cas. 1917A, 839.
And it has been said: That "at the common law * * * bias or favor, not the result of interest or relationship, is not supposed to exist." Fulton v. Longshore, Probate Judge, 156 Ala. 611, 46 So. 989, 19 L.R.A. (N.S.) 602. Also that "at common law there were but two objections that went to the disqualifications of a Judge to try a cause, to wit, interest in his own behalf in the result or being kin to others interested therein." Fulton v. Longshore, Probate Judge, supra.
The cause here is submitted upon the original petition, defendant's demurrers, and his answer. Ex parte Butler-Keyser Mfg. Co., 174 Ala. 237, 240, 56 So. 960. We have examined critically the petition, and conclude that it nowhere sets up any of the grounds of disqualification of the said J. Russell McElroy, judge, etc., to sit as judge in the cases described in said petition, prescribed by the statute (Code, § 8570, supra), or those imposed by the common law. It follows that the petition is subject to the second, third, fourth, sixth, seventh, and eighth grounds of demurrer interposed. The demurrers to the petition are sustained, and the writ of mandamus is denied.
Demurrer sustained. Writ denied.