Recusation in Alabama

Only rarely do judges find it necessary to disqualify themselves from a case. But Alabama is not given to half measures; the state's entire supreme court has just "recused" (disqualified) itself from a legal hassle involving one of its members, Justice Robert T. Simpson III, who hit a street light pole while driving home in Montgomery one night last April.

The accident seriously injured Simpson and killed his wife. The judge filed $100,000 suits against the city and the Alabama Power Co., charging them with failure to keep the light lit. At a pretrial examination, power-company lawyers not only tried to question one of Simpson's friends about the justice's drinking habits, but they also asked Simpson why he was suing. After all, they said, he had already paid the power company for smashing its pole, which would seem to imply a measure of responsibility for the accident. With icy hauteur, both the justice and his friend stood mute.

Faced with that silence, the power company's lawyers eventually asked Simpson's court to hold that the questions must be answered. Whereupon all seven justices recused themselves. The last time such a maneuver put the court in a bind was in the Depression 1930s, when the justices ducked a ruling that would have cut their salaries. In such cases, Alabama law requires the Governor to appoint a special court of five lawyers to hand down a decision. Governor Benjamin M. Miller had no trouble rounding up the required number of lawyers and, once on the bench, the substitute judges soon slashed the regular judges' pay.

This time, Governor George Wallace is already fielding requests from applicants anxious for even the temporary honor of serving as a supreme court justice. Those chosen are likely to bend over backward being fair: there is always a chance that they may later appear before Justice Simpson's court. And at 73, he has every intention of staying on the bench indefinitely. Back in 1961, the state legislature passed a law aimed at forcing elderly judges to retire in order to get full retirement benefits. Justice Simpson simply announced that his brethren would rule the law unconstitutional if it ever came before them. This year he ran for another six-year term and won.

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