Ga. SC says trial judge should have referred motion to recuse

Jessica M. Karmasek Jun. 5, 2012, 2:00pm



ATLANTA (Legal Newsline) - The Georgia Supreme Court said the state Court of Appeals was wrong to affirm a trial judge's denial of a motion to recuse himself from a case over a city's underground parking garage project.

A contractual dispute between the city of Savannah, contractor Batson-Cook Company and subcontractor Raito Inc. over the garage's design and construction resulted in a multi-million dollar jury verdict against the city.

The Troup County Superior Court entered the judgment. The Court of Appeals later affirmed.

On appeal, the city asked the state's high court to decide whether the appeals court erred when it determined that Chief Judge William F. Lee Jr. was correct in denying a motion to recuse himself from the case, rather than refer it to another judge.

Georgia's Uniform Superior Court Rule 25 provides the procedural framework by which a motion to recuse a judge presiding in a particular case may be filed by a party, and how the motion is to be resolved.

According to Rule 25, the motion and supporting affidavits initially are presented to the judge whose recusal is sought. The judge immediately determines the timeliness of the motion, the legal sufficiency of the affidavits and, assuming any of the facts of the affidavits to be true, whether recusal would be warranted.

If all three prongs are met, another judge is assigned to hear the motion to recuse.

The judge hearing the motion then has the discretion to consider the motion solely on the affidavits or convene an evidentiary hearing.

At issue in the present case are the three threshold requirements of the city's motion: Was it timely filed? Were the affidavits supporting it legally sufficient? Did the affidavits aver facts that, when assumed to be true, would warrant Lee's recusal from hearing the case?

If all three conditions were met, Lee was required to refer the motion to another judge.

The Court, in its May 29 ruling, said the motion was timely filed and the affidavits accompanying it were "legally sufficient."

The affidavits also met the criteria of USCR 25.2, as they contained "definite and specific foundational" facts of Lee's extra-judicial conduct demonstrating a purported lack of impartiality and were not stated in conclusory fashion or as a matter of opinion, the Court noted.

The Court then considered whether the facts contained in the affidavits, when taken as true, would authorize recusal.

Indeed, they do, Justice Robert Benham wrote in the Court's 17-page ruling.

"In the case before us, the familial relationship between the judge and an attorney who had represented one of the parties in the underlying dispute that resulted in the litigation and who was employed by a firm, a partner of which was general counsel to a party in the case, who acted at times as if counsel of record, and whose conversation with the trial judge advising him of the existence of the case was followed by the trial judge's assignment of the case to himself, are objective facts which we conclude would cause a fair-minded and impartial person to have a reasonable perception of the trial judge's lack of impartiality," the justice wrote.

"Since the affidavits raised a reasonable question about the trial judge's impartiality that required the assignment of the motion to recuse to another judge, the Court of Appeals erred when it affirmed the trial judge's denial of the motion to recuse for failure to meet the requirements of USCR 23.5."

The Court reversed the appeals court's judgment and remanded the case to that court, directing it to remand the case to the superior court for disposition of the motion to recuse by a different judge.

From Legal Newsline: Reach Jessica Karmasek by email at

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