In Greene v. Jefferson Co. Commission, released November 14, 2008, the Alabama Supreme Court refused to review the trial court’s order refusing a motion for recusal because the issue was not raised until the post-trial motions stage.
Greene arises from litigation filed against the Jefferson County Commission and the General Retirement System for Employees of Jeffersson County involving certain retirement benefits for Jefferson county employees. Following summary judgment entered in favor of the defendants, the plaintiffs appealled, arguing a host of issues, including that the trial court judge should have recused himself because the defendants had contributed money to his judicial campaign in violation of 12-24-1 and -2.
The court refused to hear the recusal argument. In a footnote, it pointed out that the issue was not raised until posttrial motions were filed. Quoting the rule in Alabama, the court stated:"If a party has knowledge of a judge or master’s partiality and that information may support a recusal, the party maynot lie in wait and raise the issue of recusal after learning the outcome of the proceeding." As campaign contributions are a matter of public record, the plaintiffs were deemed to have constructive knowledge of the alleged violation of 12-24-1 and -2, and, by not raising the issue sooner, had waived their right to appellate review of that issue.