Appellate Law

Knowledge That Case Went to Appellate Mediation Did Not Require Court's Recusal

The Supreme Court of Alabama would not recuse itself just because it knew that a case had been referred to an ultimately unsuccessful appellate mediation.  Consistent with the governing rules, the Court had no confidential information concerning the mediation.  Southland Bank v. A & A Drywall Supply Co.,  No. 1060204 (Ala. Apr. 24, 2009). 

The parties sought a rehearing.  They 'took exception' to a clause in the Court's main opinion which noted that the case had been 'referred to appellate mediation, which was ineffective.'  This statement, the parties complained, showed that the Court must have been aware of confidential facts regarding the mediation, and must have obtained that information 'through personal knowledge.'  Under the governing rules, they argued, 'the fact that the case was referred to mediation and that the mediation was unsuccessful are confidential.'  They asked the Court to recuse itself and appoint a special court to hear the appeal de novo.

The Court declined to do so.  Rule 8 of the appellate mediation rules indeed 'provides for the confidentiality of certain aspects of mediation,' the Court allowed.  However, the rule does not prohibit the Court 'from knowing merely whether a case was referred to appellate mediation and subsequently reinstated on the appellate docket.'  Rule 55(d) of the rules of appellate procedure, moreover, states: '[T]he bare fact that a settlement has or has not been reached as a result of mediation shall not be considered confidential.'

The Court made its statement in this case regarding the unsuccessful mediation solely to explain why so much time had passed between the notice of appeal and the issuance of a decision.  No member of the Court 'had access to any confidential information concerning the mediation,' such as what settlement offers may have been made, or what positions each side took.  The Court finished by noting:

Members of the Court, as a matter of internal procedure, do not have any access whatsoever to any information regarding the mediation of a particular case other than whether the case was referred to appellate mediation and whether it was subsequently reinstated on the appellate docket.

The application for rehearing was denied.

Full post as published by Alabama Appellate Watch on May 04, 2009 (boomark / email).