from Jefferson Circuit Court (CV-18-901080)
General Contractors, Inc. ("Startley"), and Mandy
Powrzanas, the plaintiffs below (hereinafter referred to
collectively as "the plaintiffs"), appeal from the
denial by Jefferson Circuit Court Judge Robert S. Vance, Jr.,
of their renewed motion seeking to have Judge Vance recuse
himself from the underlying action the plaintiffs filed
against the Water Works Board of the City of Birmingham
("BWWB"); Tommy Joe Alexander, Deborah Clark,
Brenda J. Dickerson, William Burbage, Jr., Ronald A. Mims,
Brett A. King, Sherry A. Lewis, George Munchas, and William
R. Muhammad, members of BWWB; Macaroy Underwood, T.M. Jones,
Jerry Lowe, and Richard Newton, employees of BWWB; Jones
Utility and Contracting Co., Inc. ("Jones
Utility"); and Richard Jones (all hereinafter referred
to collectively as "the defendants"). We affirm.
Vance's decision concerning the plaintiffs' renewed
motion to recuse is the only matter before us in this appeal.
Therefore, the facts of the underlying action are largely
immaterial to the disposition of this appeal. It suffices to
say that the plaintiffs allege that the defendants conspired
to violate Alabama's competitive-bid law in ways that
resulted in financial harm to the plaintiffs.
March 15, 2018, the plaintiffs filed their original complaint
in the Jefferson Circuit Court alleging against the
defendants claims of negligence, wantonness, and recklessness
in violating Alabama's competitive-bid law,
"improper contract award," willful violation of
Alabama's public-works law, collusion, breach of
contract, fraud, deceptive business practices, falsifying
business records, criminal solicitation, breach of fiduciary
duty, violation of the Alabama Code of Ethics, federal-law
claims under the Sarbanes-Oxley Act and the False Claims Act,
and negligent retention or supervision of employees. The case
was initially assigned to Judge Tamara Harris Johnson.
April 5, 2018, Judge Johnson entered an order recusing
herself from the case based on Canon 3.C., Alabama Canons of
Judicial Ethics, because, before she began her service as a
judge, she had represented defendants BWWB and Macaroy
Underwood in her legal practice. On the same date, April 5,
2018, defendants Jones Utility and Richard Jones removed the
case to the United States District Court for the Northern
District of Alabama based on federal-law claims the
plaintiffs had asserted against the defendants in the action.
According to the parties, even though the case had been
removed to federal court, on April 6, 2018, the case was
reassigned to Judge Vance. On May 24, 2018, the federal
district court entered an order dismissing without prejudice
the plaintiffs' federal-law claims under the
Sarbanes-Oxley Act and the False Claims Act and remanding the
plaintiffs' state-law claims to the Jefferson Circuit
Court. At that point, the case was returned to Judge Vance,
and he set a status conference for the case to be held on
June 22, 2018.
5, 2018, the plaintiffs filed a motion seeking to have Judge
Vance recuse himself "pursuant to Alabama Code [1975, ]
§ 12-24-3[, ] and Alabama Canons of Judicial Ethics,
Canon 3(C)." The plaintiffs contended that Judge Vance
had received monetary contributions to his 2018 campaign for
Chief Justice of the Alabama Supreme Court from law firms and
attorneys representing the defendants. Specifically, the
motion to recuse highlighted a $2, 500 contribution to Judge
Vance's campaign by the law firm of Starnes, Davis and
Florie, LLP ("Starnes"), which represented Jones
Utility and Richard Jones in the action, which contribution
the plaintiffs alleged was donated on April 9, 2018. The
plaintiffs alleged that the contribution represented the
first time that Starnes had ever donated to a judicial
campaign for Judge Vance and that it represented the largest
amount Starnes had "made to any campaign or PAC to
date." The motion further noted two individual
contributions in April and June 2018 to Judge Vance's
campaign from attorneys at Starnes, each in the amount of
$250. The motion to recuse also noted three individual
contributions to Judge Vance's campaign in March, April,
and June 2018 by attorneys at the law firm of Cory Watson,
P.C., which represented BWWB, in the amounts of $1, 000,
$250, and $250. Finally, the motion to recuse noted a $1, 000
contribution on May 1, 2018, by Parnell Thompson, LLC, which
represented BWWB, to the Alabama Development PAC, and a
subsequent $1, 000 contribution two weeks later from the
Alabama Development PAC to Judge Vance's campaign.
Although the motion to recuse mentioned Canon 3.C., it made
no specific argument as to why that canon required Judge
Vance's recusal from the case.
10, 2018, BWWB filed a response in opposition to the
plaintiffs' motion to recuse. Among other things, they
observed that the contributions highlighted in the motion
were small in comparison to the total amount received by
Judge Vance's campaign for Chief Justice in the month of
April 2018 alone, which they averred to be $74, 700.
11, 2018, the plaintiffs filed a reply in support of their
motion to recuse in which they observed that
"[c]ollectively the Defendants' attorneys, law firms
and law partners have given $5, 500 to the Honorable Judge
Robert Vance, Jr.'s campaign." They argued that this
"could cause an objective probability of actual bias by
the Judge by the acceptance of the campaign
contributions," echoing language in §
12-24-3(a)(2), Ala. Code 1975.
12, 2018, Jones Utility and Richard Jones filed their own
response in opposition to the motion to recuse in which they
observed, among other things, that the $2, 500 contribution
from Starnes to Judge Vance's campaign, although received
by the campaign on April 9, 2018, was donated on March 30,
2018, before the case was randomly assigned to Judge Vance.
The response also noted that, even if the date the donation
was received was considered relevant, the case was pending in
the federal district court between April 5, 2018, and May 24,
2018, and it was not known during that period that the case
would eventually be remanded to the Jefferson Circuit Court.
29, 2018, Judge Vance entered an order denying the motion to
recuse. In pertinent part, he explained: "Recusal is not
mandated or even presumed under Ala. Code [1975, ] §
12-24-3[, ] given that the contributions at issue make up a
relatively small percentage of the all contributions received
in the undersigned's current campaign."
August 3, 2018, the plaintiffs petitioned this Court for a
writ of mandamus directing Judge Vance to recuse himself from
the case (case no. 1171021). The petition presented arguments
for recusal based on Canon 3.C(1), Ala. Canons of Jud.
Ethics, and § 12-24-3, Ala. Code 1975. On August 13,
2018, the plaintiffs filed in this Court a "First
Supplement to Petition for Writ of Mandamus" in which
they asserted that they had just discovered that "on
February 22, 2018 [BWWB] retained the services of attorney
Anthony Joseph with Maynard, Cooper and Gayle[, P.C., ] to
investigate whether [BWWB] is violating the Alabama
Competitive Bid Law, which is at issue in this
litigation." The plaintiffs then asserted that 11
attorneys at Maynard, Cooper, and Gayle, P.C.
("Maynard"), had contributed to Judge Vance's
campaign for Chief Justice. The first supplement also stated
that W. Stancil Starnes, the father of an attorney at
Starnes, W. Stancil Starnes, Jr., had contributed $1, 000 to
Judge Vance's campaign on July 30, 2018. The first
supplement concluded that up to that point in time
"defense counsel and their partners" had
contributed a total of $10, 950 to Judge Vance's campaign
for Chief Justice. On August 16, 2018, the plaintiffs filed a
motion in the circuit court seeking a stay of the proceedings
while the petition for a writ of mandamus was pending before
this Court. On September 16, 2018, Judge Vance denied the
plaintiffs' motion to stay the proceedings.
September 18, 2018, while the plaintiffs' mandamus
petition was still pending with this Court, the plaintiffs
filed a "Renewed Motion to Recuse the Honorable Judge
Robert Vance" in the circuit court ("the renewed
motion to recuse"). The first three pages of the renewed
motion to recuse repeated verbatim the first three pages of
the original motion to recuse, except that it mentioned
filings, such as the petition for a writ of mandamus, that
had not been submitted at the time of the original motion.
The renewed motion to recuse then related the plaintiffs'
discovery of Maynard's relationship with BWWB and the
attorneys at that firm who had contributed to Judge
Vance's campaign, just as the plaintiffs had done in
their first supplement to their mandamus petition. The
renewed motion to recuse asserted that, "as of the date
of the filing of this motion," Judge Vance's
campaign for Chief Justice had "received a total of $40,
645 from the [defendants' counsel] and associated
parties," and it broke that number down in monthly
increments from April 2018 through August 2018. The
plaintiffs contended in the renewed motion to recuse that the
amounts contributed established a "rebuttable
presumption" under § 12-24-3(b)(1), Ala. Code 1975,
that Judge Vance should recuse himself from the case. This
was so, the plaintiffs argued, because in April 2018 Judge
Vance's campaign received $75, 645 in total donations,
and during the same month counsel for the defendants had
contributed $8, 750 to Judge Vance's campaign, thus
meeting the 10% threshold required in § 12-24-3(b)(1) to
establish a rebuttable presumption. Although the renewed
motion to recuse mentioned Canon 3.C., it made no specific
argument as to why that canon required Judge Vance's
disqualification from the case.
September 25, 2018, the plaintiffs filed in this Court a
"Second Supplement to Petition for Writ of
Mandamus." In the second supplement, the plaintiffs
repeated the updated amounts they contended counsel for the
defendants had given to Judge Vance's campaign. They
added the observation that the total "contributions to
date are $632, 472.19. The defense counsel contributions
account for nearly 6.5% of the Honorable Judge Robert
Vance's total campaign contributions."
October 29, 2018, this Court denied the plaintiffs'
mandamus petition by order. In pertinent part, the order
stated: "IT IS ORDERED that the Petition for Writ of
Mandamus is DENIED. See § 12-24-3(d), Ala. Code
1975." On November 13, 2018, Judge Vance denied the
renewed motion to recuse. He did not elaborate his reasons
for doing so in the order. On December 13, 2018, the
plaintiffs filed this appeal from the denial of the renewed
motion to recuse.
at the outset that our basis for evaluating all aspects of
this appeal, including our standard of review, is §
12-24-3, Ala. Code 1975. In their briefs to this Court the
plaintiffs have presented additional arguments based on Canon
3.C(1), Ala. Canons of Jud. Ethics, and the federal
due-process standard for judicial recusal provided in
Caperton v. A.T. Massey Coal Co., 556 U.S. 868
(2009). However, as our rendition of the facts recounts,
although both the motion to recuse and the renewed motion to
recuse mentioned Canon 3.C., neither motion presented any
argument based on the Canons of Judicial Ethics. Moreover,
the plaintiffs never mentioned Caperton, let alone
presented an argument based on Caperton's
due-process standard, in either the original motion to recuse
or the renewed motion to recuse. Therefore, this Court will
not consider those new arguments in this appeal. See, e.g.,
Ware v. Timmons, 954 So.2d 545, 557 (Ala. 2006)
(observing that "'[t]his Court cannot consider
arguments raised for the first time on appeal; rather, our
review is restricted to the evidence and arguments considered
by the trial court'" (quoting Andrews v. Merritt
Oil Co., 612 So.2d 409, 410 (Ala. 1992))).
left, then, with § 12-24-3, a statute that became
effective in 2014 that has not been interpreted by this
Court. Section 12-24-3 provides:
"(a) In any civil action, on motion of a party or on its
own motion, a justice or judge shall recuse himself or
herself from hearing a case if, as a result of a substantial
campaign contribution or electioneering communication made to
or on behalf of the justice or judge in the immediately
preceding election by a party who has a case pending before
that justice or judge, either of the following circumstances
"(1) A reasonable person would perceive that the justice
or judge's ability to carry out his or her judicial
responsibilities with impartiality is impaired.
"(2) There is a serious, objective probability of actual
bias by the justice or judge due to his or her acceptance of
the campaign contribution.
"(b) A rebuttable presumption arises that a justice or
judge shall recuse himself or herself if a campaign
contribution made directly by a party to the judge or justice
exceeds the following percentages of the total contributions
raised during the election cycle by that judge or justice and
was made at a time when it was reasonably foreseeable that
the case could come before the judge or justice:
"(1) Ten percent in a statewide appellate court race.
"(2) Fifteen percent in a circuit court race.
"(3) Twenty-five percent in a district court race.
"Any refunded contributions shall not be counted toward
the percentages noted herein.
"(c) The term party, as referenced in this section,
means any of the following:
"(1) A party or real party in interest to the case or
any person in his or her immediate family.
"(2) Any holder of five percent or more of the value of
a party that is a corporation, limited liability company,
firm, partnership, or any other business entity.
"(3) Affiliates or subsidiaries of a corporate party.
"(4) Any attorney for the party.
"(5) Other lawyers in practice with the party's