Patterson v. Butler

371 S.E.2d 268, 187 Ga. App. 740, 1988 Ga. App. LEXIS 845

• Court: Court of Appeals of Georgia
• Decided: July 7, 1988
• Docket: 76056
• Status: Published

Opinions

Banke, Presiding Judge.

The appellant filed suit against the five members of the Clayton County Board of Commissioners, the Solicitor of the Clayton County State Court, a Clayton County magistrate, and various Clayton County administrative officials and police officers, including the director of the police department, alleging that they had engaged in a conspiracy to close a lounge which he operated by subjecting him to unfounded charges of license violations and to other acts of harassment. During the pendency of the action, the appellant filed two separate motions seeking the recusal of the trial judge on the ground that his impartiality was called into question by certain actions and associations stemming from his past service as Clayton County District Attorney. The trial judge denied these motions summarily, without referring them to another judge, but certified the denial of the second motion for immediate review. The case is currently before us pursuant to our grant of the appellant’s application for an interlocutory appeal.

In his first recusal motion and supporting affidavit, the appellant asserted that because the judge, while serving as district attorney, had utilized the services of county police personnel in seeking restraining orders against such activities as rock concerts and bingo games, reasonable persons might question his ability to preside impartially over a suit to recover damages against other county officials and police officers based on their attempts to restrict similar activities in connection with the operation of his (the appellant’s) lounge, where such forms of entertainment as pool tables, video games, and live rock music had been offered. In his second recusal motion, the appellant challenged the judge’s impartiality on the basis of his past professional, political, and personal association with one of the defendants, the current director of the police department, who had served as chief investigative assistant for the district attorney’s office during the judge’s tenure there and had worked in the judge’s political campaigns during that period. Held:

1. “To warrant disqualification of a trial judge the affidavit supporting the recusal motion ‘must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.’ Berger v. United States, 255 U. S. 22, 33-34 (41 SC 230, 65 LE 481) (1921).” Jones v. State, 247 Ga. 268, 271 (4) (275 SE2d 67) (1981), cert. den. 454 U. S. 817 (102 SC 94, 70 LE2d 86). “[W]hen a trial judge in a case pending in that court is presented with a motion to recuse accompanied by an affidavit, the judge’s duty will be limited to passing upon the legal sufficiency of the affidavit, and if, assuming all the facts alleged in the affidavit to be true, recusal would be warranted, then another judge must be assigned to hear the motion to recuse. . . . [I]t is as much the duty of a judge not to grant the motion to recuse when the motion is legally insufficient as it is to recuse when the motion is meritorious; nor does the simple filing of an affidavit automatically disqualify a judge. [Cit.]” State v. Fleming, 245 Ga. 700 (1), 702 (267 SE2d 207) (1980). See also Hardman v. Hardman, 185 Ga. App. 519, 520 (3) (364 SE2d 645) (1988).

The appellant does not suggest that the trial judge harbors any personal bias or prejudice against him, nor that he has any financial interest in the outcome of the case, nor that he has a prohibited familial relationship with any party to the case. See generally Canon 3 C (1) of the Code of Judicial Conduct, 231 Ga. 897, 900. Instead, the appellant calls the judge’s impartiality into question solely on the basis of allegations that his past activities and associations while serving as district attorney involved many of the police officers and county officials who are named in the complaint as defendants. There is no suggestion that any of these activities and associations involved the events giving rise to this litigation, nor is there any suggestion that the judge has otherwise had any involvement or connection with the events at issue in this case. Under such circumstances, we cannot agree that the judge’s past service as district attorney is sufficient to call into question his ability to preside impartially over the present case. Accord Hall v. Hall, 242 Ga. 15 (247 SE2d 754) (1978) (appearance of impropriety not created by the mere fact that one of the parties to the litigation is or has been represented by a former law partner of the judge). Indeed, were we to accept the appellant’s reasoning, the judge would be required to recuse himself, or at least refer the issue of his impartiality to another judge, in all criminal proceedings, particularly those in which county police officers were involved. Believing that such a result would be unreasonable in the extreme, we hold that the plaintiffs two recusal motions were properly denied.

2. The appellant’s remaining enumerations of error were not within the scope of his application for interlocutory review and consequently will not be addressed.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Carley, Pope, and Benham, JJ., concur. Sognier and Beasley, JJ., dissent.