Judge recuses himself from fraud case after Lagniappe inquiries

When it comes to personal and political connections between attorneys and judges in likely any courtroom in America, consider the “Bacon number.” Whether or not any given Hollywood actor or actress has ever appeared on screen alongside actor Kevin Bacon, an online algorithm known as the “Oracle of Bacon” can assign them a score — from zero to 10 — to determine their Bacon number.

There is only one actor with a number of zero: Bacon himself. If someone has appeared in the same film as Bacon, they are assigned a number of one. If someone has appeared in a film with someone who has appeared in a film with Bacon, they are assigned a number of two. And so on.

Those with the closest connection to Bacon are ones, those with the furthest are tens. Updated monthly, the Oracle indicates that of the 392,732 actors linked to Bacon, their average Bacon number is currently 3.153.

The basic theory of this Bacon-related silliness is that all people are linked through their connections to others, no matter how far removed.

As faulty as the Bacon number analogy may be — the equation can be significantly less reliable if more obscure figures are used as a “center” — it can still be applied to illustrate relationships in both the practice of law and the administration of justice. For example, even though attorneys and judges may not be familiar with one another either personally or professionally, they may be within 3.153 “degrees” of someone who is. The same could be said for any specialized field of work, but consider these numbers:

A 2017 survey by the American Bar Association (ABA) listed only 14,717 resident attorneys in the state of Alabama, regardless of whether they were active or not. Many of those are likely to practice within a small number of certain fields, be it municipal law, family law, labor law, immigration law, tax law, etc.

If they bring a case to state court, it will be presided over by one of the roughly 240 circuit or district judges in one of the state’s 67 counties or 41 judicial circuits. If they earned an ABA-accredited law degree in Alabama, it came from one of only three schools.

The point is, attorneys and judges know each other, they will know each other and presumably, they also know the law and the ethics of practicing law.

In Alabama, the canons of judicial ethics acknowledge degrees of separation. More specifically, Canons 2 and 3 acknowledge relationships do exist, relationships may change over time and if ever any conflicts of interest arise over relationships that may prevent an attorney or a judge from fairly and impartially administering the law, both attorneys and judges have a duty to recognize those relationships and, if necessary, may recuse themselves or request recusals from related proceedings or cases.

Earlier this summer, in an effort to determine what relationships or conflicts have led to recusals in the past, Lagniappe sought records from the Administrative Office of the Courts. But because recusal orders are not assigned a specific code within the state court database — many other types of motions and orders are not either — the request was unable to be fulfilled.

Yet the question came to light again while reporting on the civil case of Bass Enterprises vs. Pennstar, et al., which alleged a fraudulent transaction involving some of Baldwin County’s largest developers and financiers.

The case was presided over and ultimately dismissed by Baldwin County Circuit Court Judge Joseph Norton in 2017, less than a week before it was scheduled for a jury trial. Based on a complaint initially filed in 2014, former South Alabama Sewer Service owner Phillip Bass claimed he was the victim of a fraudulent land sale, which involved individuals connected to Baldwin County Sewer Service (BCSS), including Clarence Burke, brothers David and Michael DeLaney and former Baldwin County Commissioner Tucker Dorsey, among others.

Despite being presented with evidence including falsified federal settlement statements and supporting telephone, email and handwritten records, all the defendants and deposed parties denied any knowledge of or participation in a fraudulent scheme. Eventually, Norton signed a summary judgment declaring that certain mortgages related to the transaction were valid and the plaintiffs failed to present “a genuine issue of material fact.”

The case was appealed and in late 2018 the Alabama Supreme Court affirmed the ruling without writing an opinion.

Since Lagniappe initially reported on the case last month, suggestions have been made that Norton has a higher Bacon number than other judges in Baldwin County when it comes to his relationship with the defendants in that case. While he was assigned the case randomly and is perhaps uniquely qualified to preside over such matters based on his experience practicing real estate law, Norton appears to be only twice removed from BCSS as a corporate entity, and only three times removed from Burke and the DeLaneys as individuals, based on a review of Statements of Economic Interests and probate records.

Such relationships are often unavoidable in law, according to sources who also said Norton may be well within both his legal authority and ethical boundaries to preside over the Bass case or any case involving BCSS.

Separately, he is also presiding over a breach of contract case filed against BCSS by the residents of GlenLakes.

But what’s been gathered is this: Norton’s wife, Laura, is listed as part-owner of Wise Living Real Estate on the company’s website, along with broker and part-owner Sandy Wise. Previously, the two were agents at Coldwell Banker Reehl Properties Inc.

Wise Living was formed in December 2017, roughly 16 months after developer Albert “Trae” Corte organized The Verandas LLC along with Bruce Bigler. The Verandas is a new, multi-phase, custom-home subdivision currently under development on the intersection of State Route 104 and Lawrence Road in Fairhope.

Baldwin County Sewer Service will be providing sewer for The Verandas, while Wise Living is marketing it. Corte, who is also presented as an employee of Wise Living on its website, was named in a previous Lagniappe report regarding his business relationship with both Burke and the DeLaneys over their development of the Bellaton subdivision on State Route 181, just a few miles north.

In the case of Bass vs. Pennstar, Norton assigned the sale of the property, which is expected to take place before the end of the year, to Coldwell Banker Reehl Properties.

Norton was sent requests for comment about the relationships last week, but we were told he would be presiding over a trial this week and was not likely to respond anyway.

The Canons of Judicial Ethics advises that judges “avoid impropriety and the appearance of impropriety in all his activities … not allow[ing] his family, social, political or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him.”

Further, they advise: “A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where … He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household has a financial interest in the subject matter in controversy, or in a party to the proceeding or any other interest that could be substantially affected by the outcome of the proceeding.”

The canons go on to provide additional guidance against conflicts of interest involving family and financial matters, including suggesting that in lieu of a disqualification (recusal), judges may continue to preside over conflicted cases if they disclose the conflict and obtain a waiver from all parties in the case.

Motions to recuse or disqualify do not appear to have been filed in either the Bass or GlenLakes cases.

Separately, another item on Norton’s Statement of Economic Interests also raises eyebrows. Before he was initially elected to the bench in 2012, Norton was a partner in the law firm of Kopesky, Britt and Norton LLC.

While the Alabama Ethics Commission does not have statements on file from his first two years as a judge, beginning in 2014, he reported earnings of between $10,000 and $50,000 for “referral fees” from his previous law partners. He reported the same amount of earnings in 2015 and 2016, but by 2017, his income from referral fees had increased to between $50,000 and $150,000. It remained in that higher bracket in his 2018 Statement of Economic Interests, the most recent year available.

Lagniappe contacted a retired judge to explain the ethics of earning such income while serving on the bench and whether it would present any conflicts from presiding over cases. According to their statement, if an attorney had referred a case to another firm prior to becoming a judge, he could still be paid a referral fee after taking the bench when the case was finalized. In the interim, the judge should not oversee that case or cases involving the law firm until after the case is finalized, according to one judge Lagniappe consulted.

But the question of whether a judge should oversee cases argued by a former law partner while also still being paid by that firm is a little stickier. The Alabama Judicial Inquiry Commission has issued many rulings over the years telling judges to disqualify themselves from cases where there are potential financial conflicts, but also have allowed others. Rulings quote the judicial canons but also vary on a case-by-case basis.

But up until this week, Norton’s former law partner, Brian Britt, represented Island Development LLC in a fraud case over which Norton presided. In a complaint filed Oct. 8, 2018, plaintiff Robert Drinkard seeks damages of at least $150,000, alleging his business partner, P.J. Howard, failed to adhere to the terms of an operating agreement and pay Drinkard fees owed in their mutual development of a Gulf Shores condo development known as The Rookery. According to court records, Norton was assigned the case that same day, meaning it has been on his docket for nearly a year.

Howard denied the allegations in the complaint the following month, and it appears the only orders Norton ever signed in the case were in May and August of this year — two setting and later rescheduling a pretrial conference for early 2020.

Last Friday Lagniappe left messages with both Norton and Britt asking for explanations about the referral payments to the judge. Neither responded prior to deadline.

However, at 12:18 p.m. Tuesday, just as this article was being submitted for deadline, Norton issued an order of recusal, which also vacated his previous order setting a pretrial conference.

“I hereby recuse due to conflict arising from my private practice prior to taking the bench,” Norton wrote.

It’s not the first time Norton oversaw a case argued by his former law partner. Britt also briefly represented Hons Builders in a temporary restraining order against the city of Daphne in Norton’s courtroom in 2012. There again, Norton set a pretrial conference, but before it was scheduled, both parties filed a joint stipulation for dismissal, which Norton signed in March 2013.

Unknown still is exactly which cases Norton referred, if he ever sought an opinion from the Judicial Inquiry Commission on the arrangement, or whether he presided over any cases involving any law firms who had an open case with referred client.