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Startley General Contractors, Inc. v. Water Works Board of City of Birmingham

Supreme Court of Alabama

September 6, 2019

Startley General Contractors, Inc., and Mandy Powrzanas
v.
Water Works Board of the City of Birmingham et al.

          Appeal from Jefferson Circuit Court (CV-18-901080)

          PER CURIAM

         Startley 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.

         I. Facts

         Judge 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.

         On 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.

         On 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.

         On July 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.

         On July 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.

         On July 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.

         On July 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.

         On July 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."

         On 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).[1] 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.

         On 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.

         On 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."

         On 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.

         II. Analysis

         We note 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))).

         We are 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 exist:
"(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 ...

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