Alabama Appellate Watch : Blog Published by Lightfoot Franklin & White : Alabama Litigation Lawyer & Attorney : Appellate, Alabama Supreme Court (Supreme Court of Alabama)

In Caperton v. A.T. Massey Coal Co., the defendant Massey was hit with a $50 million judgment in West Virginia. After the verdict but before the appeal, West Virginia had an election for their Supreme Court. Massey's chairman threw his support behind Brent Benjamin, a challenger for one of the contested seats. In addition to donating the $1,000 statutory maximum to the campaign, Massey's chairman also donated $2.5 million to a PAC which supported Benjamin, and also spent another $500,000 on direct mailing and ads supporting Benjamin. This $3 million spent by Massey's chairman was more than the total spent by other Benjamin supporters combined, and three times the amount spent by Benjamin's own committee. Benjamin was elected by 50,000 votes, which was 7 percentage points.

Benjamin refused to recuse himself when Massey's appeal was brought before the court. By a 3-2 vote, with Benjamin voting with the majority, the judgment was reversed. On rehearing, other justices recused themselves, but Benjamin again refused. On the rehearing, Benjamin, acting as chief judge, appointed special justices to hear the appeal. Again with Benjamin's vote, the rehearing was denied.

The U.S. Supreme Court had previously recognized two instances where due process required recusal - when the judge had a financial interest in the outcome and when the judge is trying a defendant for certain forms of criminal contempt. The Court now recognizes a new due process right to recusal when a litigant exerted disproportionate influence in getting the judge elected:

We conclude that there is a serious risk of actual bias-based on objective and reasonable perceptions-when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent. The inquiry centers on the contribution's relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.

2009 WL 1576573 at *11. The Court found that instances such as these raised a serious, objective risk of actual bias which required recusal. The opinion was authored by Justice Kennedy and joined by Stevens, Souter, Ginsburg and Breyer.

Roberts, Scalia, Thomas, and Alito dissented. Roberts said this "objective" test provided no guidance at all, and listed 40 different inquiries which would have to be answered when applying this test. Roberts said that this was a classic case of "Hard cases make bad law." Scalia also wrote a dissenting opinion, saying that the cure of this case was worse than the disease.

The Court of Civil Appeals reviewed several points of post-judgment and appellate practice before reaching the heart of this case. Hoping it will prove useful to readers here, we follow the court’s long approach.

The Court of Civil Appeals upheld a judgment against Robert Price. Acting pro se, Price sought a rehearing and, days later, moved the appellate court to “set aside” the adverse judgment under Rule 60(b). Price argued that “newly discovered evidence” showed that the trial judge should have recused himself. This motion, made on March 12, 2008, pointed to a 1999 affidavit in which the trial judge had recommended the plaintiff as a fit candidate for admission to the Alabama State Bar. The Court of Civil Appeals treated Price’s motion as a request for permission to file a Rule 60(b) motion in the trial court, and granted that permission.

Price filed his 60(b) motion in the circuit court and asked the trial judge to recuse himself. The trial court denied this motion. Price appealed and, days later, filed a separate mandamus petition challenging the trial court’s decision.

The Court of Civil Appeals first noted that the denial of the 60(b) motion was appealable. The mandamus petition, however, was not proper. After the circuit court denied the 60(b) motion, there was nothing left pending for it to do. The 60(b) denial was therefore final, not interlocutory, and could not be reviewed by mandamus. Nonetheless, the appellate court explained that, “in certain circumstances,” it could elect to treat a petition for mandamus as an appeal. Because the recusal issue was at the heart of both Price’s appeal and his mandamus petition, the court elected to treat the petition as an appeal.

The appellate court then analyzed Price’s 60(b) motion. Price had not specified which subsection of Rule 60(b) his motion was brought under. The Court of Civil Appeals “decline[d] to construe” Price’s motion as one under 60(b)(2), seeking relief from judgment based on “newly discovered evidence.” Such a motion, the court explained, comprehends proof “which was not known at time of trial and could not have been discovered by due diligence in time to move for a new trial.” Price had not alleged or argued that he had only recently discovered the 1999 affidavit on which his recusal argument rested; nor had he claimed that he could not have discovered it sooner. His motion therefore was not viable under Rule 60(b)(2).

The court then considered the motion under Rule 60(b)(6). This subsection allows relief from judgment for “any other reason justifying relief” than those listed in previous parts of Rule 60(b). The appellate court set out various criteria governing this rule. “Rule 60(b)(6) is an extreme remedy and relief” thereunder “will be granted only in unique situations where a party can show exceptional circumstances sufficient to entitle him to relief.” (Quotation omitted.) A party moving under this rule must show that he did “everything reasonably within his power to achieve a favorable result” before the challenged judgment became final. Decisions under Rule 60(b)(6) lie in the trial court’s discretion. Indeed, “a strong presumption of correctness” attaches to a trial court’s decision under Rule 60(b)(6). The object of appellate review in such a case is not the underlying judgment, but the decision on the 60(b)(6) motion itself.

The appellate court affirmed the denial of Price’s 60(b)(6) motion. Such a motion must be brought “within a reasonable time.” Yet Price had made no allegation or argument showing that his motion was timely under this criterion. The record showed, to the contrary, that Price had not moved within a reasonable time. Price had acquired the 1999 affidavit that supported his motion much earlier in the litigation — fully six years before he filed his Rule 60(b) recusal motion. His motion therefore was not filed “within a reasonable time” and the circuit court did not err in denying it. The judgment of the circuit court was accordingly affirmed.

(The Court of Civil Appeals also upheld the circuit judge’s underlying decision not to recuse himself. This decision, too, came down to a question of timeliness; specifically, Price’s failure not to seek recusal before the court entered judgment.)