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With $25-Million Federal Lawsuit As A Backdrop, Judge Robert Vance Jr. Resists Calls For His Recusal

Posted on the 20 June 2013 by Rogershuler @RogerShuler

With $25-Million Federal Lawsuit As A Backdrop, Judge Robert Vance Jr. Resists Calls For His Recusal

Robert Vance Jr.

An Alabama judge continues to preside over a controversy where he took the case from another judge, he does not have jurisdiction, and one of the parties is suing him in federal court for $25 million.

On top of that, public records show Jefferson County Circuit Judge Robert Vance has taken at least $3,400 in campaign contributions from lawyers at the Birmingham firm of Maynard Cooper & Gale (MCG), which represents plaintiffs William B. Cashion and Western Steel Inc. The donations put Vance well over the $2,000 threshold set by Alabama law and require his recusal. (See Code of Alabama 12-24-1 et seq.)

Defendants Steven Mark Hayden and the William B. Cashion Nevada Spendthrift Trust filed a second motion for recusal last Friday, and Vance already has denied it. (See Part 1 and Part 2 of the renewed recusal motion at the end of this post.) Meanwhile, the defendants' $25 million federal lawsuit is pending in federal court, where they allege Vance's temporary restraining order and other extrajudicial acts have cost them significant investment returns and interest on the trust.

The federal lawsuit against Vance has drawn national attention, with coverage from the widely read Above the Law Web site. But Vance appears to have dug a trench for himself--ignoring ethics standards, statutory provisions, and case law that call for his recusal--with no plans to exit any time soon.

Lawsuits against state judges in federal court usually are quickly dismissed on judicial-immunity grounds. But Bessemer lawyer Austin Burdick, representing Hayden and the trust, makes a power argument that Vance acted outside his judicial capacity, and therefore is subject to suit--and the payment of substantial damages.

That U.S. District Judge Sharon Blackburn already has not dismissed the federal case indicates she is having a hard time finding a way to let her politically connected judicial colleague off the hook. (Vance's wife, Joyce White Vance, is U.S. attorney for the Northern District of Alabama; his late father, Robert Vance Sr., was a federal judge who was the victim of a mail-bomb assassination in 1989.)

Is Vance Jr. bought and sold for the MCG law firm and its clients? Does he intend to ignore black-letter law that says he must recuse in Cashion matter? Is that the kind of judicial loyalty that campaign cash can buy for a big-time law firm and its corporate clients? Are attorneys at a major downtown Birmingham law firm embarrassed to be involved in such a charade?

The answers to the first three questions appear to be yes. The answer to the final question seems to be a resounding no.

Alabama law regarding recusal of a judge is not complicated. The Canons of Judicial Ethics state “a judge should avoid impropriety and the appearance of impropriety in all his activities” and “a judge should not allow his family, social, political, or other relationships to influence his judicial conduct or judgment.”

Relevant case law makes it even more clear, as stated in a case styled Ex parte Bryant, 682 So.2d 39, 41 (Ala.1996):

The standard for recusal is an objective one: whether a reasonable person knowing everything that the judge knows would have a ‘reasonable basis for questioning the judge's impartiality.’ . . . The focus of our inquiry, therefore, is not whether a particular judge is or is not biased toward the petitioner; the focus is instead on whether a reasonable person would perceive potential bias or a lack of impartiality on the part of the judge in question.

Perhaps most profound in the Vance matter is this:

If the Judge has an interest that could be substantially affected by the outcome of the proceeding, he must recuse. Alabama Canons of Judicial Ethics 3(C)(1)(c).

Based on the pending federal lawsuit against him, Vance has about $25 million worth of interest in the outcome of the state proceeding before him. Still, Vance has persisted in ruling against Hayden and the trust, contrary to controlling law, ever since pilfering the case from Jefferson County District Judge Houston Brown. From attorney Burdick's renewed motion to recuse:

Vance may believe that by entering a judgment in this matter against Defendants he can affect the damages or outcome in the federal lawsuit. Whether this strategy is effective or not, the fact remains that any action taken by Vance in this matter is tainted when viewed through the lens of the pending federal lawsuit. Vance cannot help but consider what effect his actions and orders will have on the federal lawsuit. To expect Vance to rule on this matter without any consideration of the other lawsuit is unreasonable. If the Judge has an interest that could be substantially affected by the outcome of the proceeding, he must recuse. Alabama Canons of Judicial Ethics 3(C)(1)(c).

It's rare for a lawyer to stand up to a corrupt judge in Alabama--or any other state. But Burdick has filed public documents that portray Vance in an extremely unflattering light--and supported them with evidence that shows the allegations are on target:

No reasonable person knowing all of the above-listed facts could help but question the impartiality of Judge Vance. Judge Vance has exhibited extrajudicial bias in favor of plaintiffs by (1) inappropriate ex parte communications with Plaintiffs; (2) Judge Robert Vance has accepted excessive campaign contributions from plaintiff and plaintiff’s counsel and thereafter stated on the record that he had no intention of complying with Alabama statutes regarding campaign contributions; (3) he illegally usurped authority over this case and actively prevented this matter from being heard by a jury or competent court; (4) he has repeatedly ignored well established law and issued only rulings which are favorable to Plaintiffs to the extent that his rulings have taken on the tone of litigator rather than jurist.

Is Vance, in fact, acting more like a litigator, for the MCG law firm, than a judge in the Cashion matter? We will be taking a closer look at that question in upcoming posts. 

Renewed Motion to Recuse Vance1
Renewed Motion to Recuse Vance2

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