Ex parte Mi.G., 2180566

292 So.3d 395

EX PARTE MI.G. and Me.G.

(In re: The matter of B.A.D., a minor child)

Ex parte B.J. and W.J.

(In re: The matter of C.E.G., a minor child)

Ex parte T.S.

(In re: The matter of K.S.P., a minor child)

2180566

2180567

2180568, 2180569, 2180570, 2180571

2180576, 2180577, 2180578

Court of Civil Appeals of Alabama.

June 21, 2019

Christine Hernandez of The Hernandez Firm, LLC, Mobile, for petitioners.

Kent Baxley, Mobile, for respondent A.N.D.

Brenda Drendel Hetrick, Mobile, for respondent K.R.

Patricia W. Hall, Mobile, as respondent guardian ad litem for C.E.G.

Judge George A. Brown, Mobile, as respondent.

MOORE, Judge.

Mi.G. and Me.G., B.J. and W.J., and T.S. ("the petitioners") have filed separate petitions requesting that this court issue a writ of mandamus ordering Judge George A. Brown to recuse himself from hearing these cases that are pending before the Mobile Juvenile Court and ordering that the cases be reassigned to a judge from outside the Mobile Circuit. This court previously consolidated the petitions on the request of the petitioners, and, now, we deny the petitions.

The materials attached to the petitions indicate that, in January 2019, attorney Christine C. Hernandez filed a complaint with the Alabama Judicial Inquiry Commission ("JIC") against Judge Edmond G. Naman, a Mobile County juvenile-court judge. Hernandez appeared as an attorney of record in several cases pending before Judge Naman, including these cases. It is undisputed that Judge Naman entered separate orders transferring these cases to the docket of Judge Brown of the Mobile Juvenile Court.

On March 27, 2019, the petitioners, who are all parties represented by Hernandez, filed motions in all of these cases requesting that Judge Brown recuse himself. The petitioners argued that Judge Naman's " ‘transfer’ [was] a de facto recusal, considering the Judicial Inquiry Commission investigation of Judge Naman initiated by [Hernandez]," and that "Alabama law does not allow a recusing judge to appoint his replacement." The petitioners further requested an order transferring the cases "to the Presiding Circuit Judge for appointment of a temporary judge who resides outside of [the Mobile] Circuit." On April 2, 2019, Judge Brown denied the motions to recuse. The petitioners subsequently filed these mandamus petitions.

"A writ of mandamus is an extraordinary remedy available only when the petitioner demonstrates: ‘ "(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court." ’ Ex parte Nall, 879 So. 2d 541, 543 (Ala. 2003) (quoting Ex parte BOC Group, Inc., 823 So. 2d 1270, 1272 (Ala. 2001) ). A petition for a writ of mandamus is the proper vehicle for seeking review of an interlocutory order. Ex parte A.M.P., 997 So. 2d 1008, 1014 (Ala. 2008). However, ‘[a] writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal.’ Ex parte Empire Fire & Marine Ins. Co., 720 So. 2d 893, 894 (Ala. 1998) (citing Ex parte Drill Parts & Serv. Co., 590 So. 2d 252 (Ala. 1991) )."

Ex parte T.J., 74 So. 3d 447, 450 (Ala. Civ. App. 2011).

In their petitions, the petitioners argue that Judge Brown has a duty to recuse himself because, they say, Judge Naman improperly assigned Judge Brown the cases and Judge Brown has a conflict of interest as a potential witness in the proceedings relating to the complaint against Judge Naman filed by Hernandez with the JIC. We reject those contentions.

In Ex parte Jim Walter Homes, Inc., 776 So. 2d 76 (Ala. 2000), our supreme court held that, upon recusing himself or herself from a case based on disqualification, a presiding judge of a circuit court has no authority to reassign the case to a successor judge. Rather, the supreme court held that, in such cases, the presiding judge should notify "the next senior judge" of his or her recusal and that judge "shall become the judge to whom the case is assigned" unless that judge is also disqualified. 776 So. 2d at 80.

"[T]he Mobile Juvenile Court is a division of the Mobile District Court in the 13th Judicial District." L.R.S. v. M.J., 229 So. 3d 772, 777 n.1 (Ala. Civ. App. 2016) (opinion on application for rehearing). The materials before this court indicate that Judge Naman and Judge Brown are the only two judges sitting in the Mobile Juvenile Court. In cases in which one of those judges recuses himself based on disqualification, the other judge is "the next senior judge" to whom the case will automatically be assigned in accordance with Ex parte Jim Walter Homes, Inc. Assuming, without deciding, that Judge Naman recused himself due to disqualification, Judge Naman lacked the authority to reassign the cases to any judge; however, upon notice of the recusal, Judge Brown automatically would become the judge to whom the cases would be assigned, unless he, too,...