Mobile Circuit Court. (CC-94-2401; CC-94-2402; and CC-94-2403). Chris Galanos, TRIAL JUDGE.
Rehearing Denied March 24, 1995. Released for Publication August 20, 1995. As Amended December 20, 1995.
Taylor, Presiding Judge. All The Judges Concur.
The opinion of the court was delivered by: Taylor
PETITION FOR WRIT OF MANDAMUS
Jerald Sanders petitions this court for a writ of mandamus ordering Circuit Judge Chris Galanos to recuse himself from hearing the cases against Sanders. Judge Galanos served as district attorney for the Thirteenth Judicial Circuit of Alabama from 1979 through August 1994. Sanders contends that Judge Galanos had a conflict of interest because he was serving as the district attorney when the case against Sanders was first investigated by the district attorney's office.
A petition for a writ of mandamus is the correct method by which to challenge the legality of a Judge's decision not to recuse himself from a case. Ex parte Melof, 553 So. 2d 554 (Ala. 1989).
Judge Galanos served as the district attorney for the Thirteenth Judicial Circuit of Alabama from 1979 until September 1, 1994. The appellant was arrested on July 8, 1994, for theft of property and burglary in the third degree. He was arrested on July 12, 1994, for receiving stolen property in the second degree. The district court case action summaries in these cases reflect that the case files were delivered to the district attorney's office on July 29, 1994, when Galanos was serving as the district attorney. The record further reflects that these cases were nolle prossed and that the appellant was later reindicted for these same offenses. However, this does not change the fact that Galanos was district attorney when the case files were first delivered to the district attorney's office for investigation. The duties of a district attorney include "drawing up all indictments and ... prosecuting all indictable offenses." § 12-17-184, Code of Alabama 1975. The appellant was arrested and charged with three felonies. Felonies are prosecuted by the state's representative, who is the district attorney for the specific county in which the crime occurred. At one point Galanos was the attorney of record for the cases against the appellant.
Section 12-1-12, Code of Alabama 1975, states:
"No Judge of any court shall sit in any case or proceeding in which he is interested or related to any party within the fourth degree of consanguinity or affinity or in which he has been of counsel or in which is called in question the validity of any judgment or judicial proceeding in which he was of counsel, or the validity or construction of any instrument or paper prepared or signed by him as counsel or attorney, without the consent of the parties entered of record or put in writing if the court is not of record."
Canon 3(C)(1), Alabama Canons of Judicial Ethics, states:
"(1) A Judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
"(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
"(b) He served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer in the matter, or the Judge or such ...