DOCUMENT 975

ELECTRONICALLY FILED
2/19/2020 12:15 PM
03-CV-2018-900017.00
CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
GINA J. ISHMAN, CLERK
IN THE CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA

LEIGH CORFMAN,

Plaintiff,

vs. Case No. CV-2018-900017.00

ROY S. MOORE, and

JUDGE ROY MOORE
FOR US SENATE,

Defendants.

_______________________________________________

MOTION FOR RECUSAL

_______________________________________________

COMES NOW, the above-captioned Defendants, Roy S. Moore and Judge Roy Moore for

US Senate by and through their attorney of record, Melissa Isaak, and hereby submits the following

Motion for Recusal and in support thereof, respectfully state as follows:

I. RELEVANT HISTORY

1. In the first part of February 2017, a special election was scheduled for the open senate

seat vacated by Jeff Sessions. The Democratic candidate who ended up winning the December

12, 2017 special election was Doug Jones. Corrupt politics was employed during that election,

and it appears that corrupt politics is now being employed in this case.

2. On July 11, 2018 Lyn Stuart, the acting Chief Justice of the Alabama Supreme Court,

appointed retired Judge John Rochester over this case due to the resignation of Judge Roman

Shaw to serve on a “temporary” basis in the 15th Judicial Circuit in Montgomery, Alabama. The
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Appointment Order only authorized Judge Rochester to preside over this case through January

14, 2019 (see Appointment Order dated July 11, 2018, attached and incorporated herein as

Exhibit 1). Well over a year later and contrary to the Appointment Order, Judge Rochester has

chosen to continue to preside over this case. A copy of the appointment order was never made a

part of the record in this case.

2. Shortly after the 2017 special election was announced, Judge John Rochester began

posting negative material to Facebook that mocked U.S. President Trump, who at that time was

supportive of Judge Moore. (See Trump cartoon of February 23, 2017, attached and incorporated

herein as Exhibit 2.)

3. Judge Rochester, the assigned judge in the case at bar, openly supported Doug Jones’

2017 campaign for Senate. (See Judge John Rochester’s Facebook Account attached and

incorporated herein as Exhibit 3.)

4. On or about May 10, 2017, Judge Judge Rochester created a Facebook post mocking

Christianity. (See Facebook Post Mocking Christianity, attached and incorporated herein as

Exhibit 4) It is common knowledge that Judge Moore is a devout Christian.

5. Linda Rochester (hereafter referred to as “Linda”) is the wife of Judge John Rochester.

On or about November 8, 2017, Linda posted an article published on that date from the Alabama

Political Reporter. The article was entitled, “Roy Moore is On the Run.” (See Facebook Post of

Linda Rochester, attached and incorporated herein as Exhibit 5)

6. In her Facebook post linking the aforementioned Alabama Political Reporter article,

Linda states, “great article.” The article is a very negative commentary regarding Judge Moore.

Given that it was published during the 2017 special senate election, it was obviously penned to

diminish voter and/or public support for Judge Moore’s senate electoral campaign.

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7. Linda then goes on to post, “The more he talks, the worse it is,” when she’s referring to

Judge Moore. (See Exhibit 5.)

8. Four days later, on or about November 12, 2017, Judge Rochester donated fifty dollars to

Doug Jones senate campaign. Doug Jones was Judge Moore’s democratic challenger in the 2017

senate campaign. (See John Rochester November 2017 Campaign Contribution to Doug Jones,

attached and incorporated herein as Exhibit 6.)

9. Then on or about December 4, 2017, Judge Rochester donated an additional one hundred

dollars to Doug Jones senate campaign. (See John Rochester November 2017 Campaign

Contribution to Doug Jones, attached and incorporated herein as Exhibit 7.)

10. Judge John Rochester maintains a personal friendship with Doug Jones through Facebook.

(See John Rochester Facebook Friends with Doug Jones, attached and incorporated herein as

Exhibit 8.)

11. In the case at bar, the Defendants filed motions for summary judgment on July 1, 2019,

nearly seven months ago. (Docs. # 794 & 797).

12. The Court held a hearing on those motions on August 26, 2019, at which time the

motions were ripe for disposition. See Doc. # 802. Yet five months have passed since the hearing

without a ruling on those dispositive motions, a request for supplemental briefing, or any

indication as to what is causing the delay.

13. At the time of this writing of this motion, over five months have passed since the

Defendants’ August 2019 summary judgment hearing, yet Judge Rochester refuses to rule on the

Defendants’ summary judgment motion despite the fact that the Plaintiff has made no showing

that Judge Moore defamed the Plaintiff by a simple denial that her accusations were false and

malicious.

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15. Leigh Corfman is perhaps one of the most obstructionist litigants, who has managed, with

this Court’s assistance, to avoid responding to discovery and who delayed her deposition for

months to the detriment of Judge Moore. Her baseless claims that Judge Moore has somehow

employed “obstructionist tactics” is further evidence of how Corfman has been allowed to spew

falsities, avoid responsibility and use this court as a weapon.

16. The Court’s Status Conference court date is scheduled just 12 days before the primary

election in the current senate campaign in which Judge Moore is a participant. It is obvious to

the Defendant that the timing of the conference is set in accordance with Leigh Corfman’s

wishes.

17. The Defendants are deeply concerned because the Court’s extended delay in ruling on

Defendants’ summary judgment motions dramatically contrasts with its alacrity in responding

positively to a request from the Plaintiff to hold a hearing to set a trial date on the eve of the

election.

18 Local media have commented on the timing. The “hearing to set a trial date,” noted

AL.com, “comes less than two weeks before Alabama voters go to the polls in the Super

Tuesday primaries. Moore is on the ballot, seeking the Republican nomination for Senate.” Paul

Gattis, Leigh Corfman lawsuit against Roy Moore moving to trial? AL.com (Jan. 24, 2020).1

Another reporter also noticed the close coincidence between the date of the hearing and the

imminence of the primary election. “Interestingly enough, this trial could occur a couple of

weeks before the GOP Senate primary on March 3 in which Moore is running for U.S. Senate.”

Dakota Layton, Leigh Corfman’s Lawsuit Against Roy Moore May Move To A Trial,

1
https://www.al.com/news/2020/01/leigh-corfman-lawsuit-against-roy-moore-moving-to-trial.html.
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BamaPolitics.com (Jan. 26, 2020).2 Finally, this defense of this case which does not even qualify

or legitimate cause of action has cost the Defendant over $400,000.

II. ARGUMENT

19. In 2009, the Alabama Supreme Court stated that 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.’ (quoting Ex parte

Cotton, 638 So.2d 870, 872 (Ala.1994)). 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.” See Ex parte Bank of Am., N.A., 39 So. 3d 113, 117 (Ala. 2009)

20. The Bank of Am Court went on to state that the necessity for recusal is evaluated by the

‘totality of the facts' and circumstances in each case. The test is whether “facts are shown which

make it reasonable for members of the public or a party, or counsel opposed to question the

impartiality of the judge.” Id at 119-120 (quoting Ex parte George, 962 So.2d 789, 791 (Ala.2006)

(quoting *120 In re Sheffield, 465 So.2d 350, 355–56 (Ala.1984), quoting in turn Acromag–Viking

v. Blalock, 420 So.2d 60, 61 (Ala.1982) (emphasis added)).

21. With the aforementioned precedent in mind, in 2016, the Court of Civil Appeals in Ex

Parte Rogers stated that actual bias is not necessary for a judge to recuse themselves, only a

reasonable appearance of bias or impropriety (quoting Crowell v. May, 676 So.2d 941, 944

(Ala.Civ.App.1996)).

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https://www.bamapolitics.com/43559/leigh-corfmans-lawsuit-against-roy-moore-may-move-to-a-trial.
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22. The Rogers Court went on to state that under Canon 3(C)(1), Alabama Canons of Judicial

Ethics, recusal is required when ‘facts are shown which make it reasonable for members of the

public or a party, or counsel opposed to question the impartiality of the judge.’ (quoting

Acromag–Viking v. Blalock, 420 So.2d 60, 61 (Ala.1982)). Specifically, the Canon 3(C) test is:

‘Would a person of ordinary prudence in the judge's position knowing all the facts known to the

judge find that there is a reasonable basis for questioning the judge's impartiality?’ (quoting

Matter of Sheffield, 465 So.2d 350, 356 (Ala.1984)). The question is not whether the judge was

impartial in fact, but whether another person, knowing all of the circumstances, might reasonably

question the judge's impartiality, whether there is an appearance of impropriety. See Ex Parte

Rogers, 218 So. 3d 859,863-864 (Ala. Civ. App. 2016) (quoting Ex parte Balogun, 516 So.2d

606 (Ala.1987); quoting also, Hall v. Small Business Administration, 695 F.2d 175 (5th

Cir.1983)).

23. Further, The Canons of Judicial Ethics state in pertinent part, “A judge should disqualify

himself in a proceeding in which … his impartiality might reasonably be questioned ....” and “A

fair and impartial judge is the cornerstone of the integrity of the judicial system. Even the

appearance of partiality can erode the public’s confidence in the integrity of the judiciary.” In re

Judicial Disciplinary Proceedings Against Laatsch, 727 N.W.2d 488, 491 (Wis. 2007) (quoted in

Ex parte Smith, No. 1171025 (Ala. Jan. 11, 2019)).

24. In the case at bar, the Court’s willingness to respond promptly to a request from the Plaintiff

for a hearing on the eve of the primary election contrasts unfavorably with its long delay in

responding to Defendants’ summary-judgment motions, creating the appearance that it is more

responsive to the Plaintiff than to the Defendants.

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25. Additionally, the Court’s willingness promptly to schedule a hearing to consider a trial

date when it has yet to rule on long-pending dispositive motions also signals that it may not be

giving those motions the attention they deserve. Defendants have presumed that part of the

reason for the Court’s delay in ruling is that it is preparing a scholarly and carefully reasoned

opinion. However, the possibility of summary disposition of the motions at a hearing called to

set a trial date could indicate that the Court is unwilling to devote the time to this case necessary

to give Defendants’ well-reasoned arguments appropriate consideration.

26. The Court’s above-mentioned conduct is especially troubling in light of the verified fact

that the Court has made multiple public statements disparaging conservatives and Christianity.

Further, the Court’s wife, Linda, has made numerous negative public social media comments that

are extremely disparaging of Judge Moore. Finally, the Court maintains a personal friendship

with Doug Jones and financially supports his senate campaigns against Judge Moore.

III. CONCLUSION & REQUEST FOR RELIEF

Judge John Rochester has shown a personal bias against Roy Moore himself, as well as the

Republican Party and the values encompassed by the party. His personal Facebook page is fraught

with mockery of conservative figureheads (who supported Roy Moore) and his Wife, Linda

Rochester, has openly condemned Judge Roy Moore publically and unequivocally. Judge

Rochester contributed to Doug Jones during a campaign in which Judge Moore was a party, which

shows an obvious bias. His open friendship with Judge Moore’s potential opponent in the 2020

election is an obvious bias and apparent impropriety in which the impartiality of Judge Rochester

should be questioned. The mere fact that Judge Rochester chose to preside over this case well

over a year after the expiration of his “temporary” appointment demonstrates a motive to influence

the outcome of the case. It is undeniable that based upon the foregoing facts and arguments, a

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reasonable person would form a solid basis for questioning John Rochester’s impartiality

and a reasonable person would perceive potential bias or a lack of impartiality on the part

of the Judge Rochester. The serious case delays in discovery as well as the refusal to rule

on motions has prejudiced Judge Moore’s ability to defend himself against the false

allegations launched by Leigh Corfman and unfairly prevented him from developing his

case against her.

The interest of justice requires Judge John Rochester to recuse himself from

presiding over this case.

Respectfully submitted this 19th day of February, 2020.

/s/Melissa L. Isaak
Melissa L. Isaak (ISA 007)
Attorney for Roy S. Moore and
Judge Roy Moore for US Senate
The Isaak Law Firm
2815B Zelda Road
Montgomery, AL 36106
334-262-8200

CERTIFICATE OF SERVICE

I hereby certify that on February 19, 2020, I electronically filed the foregoing with the
Clerk of the Court using the ALAFILE system, which will send notification of such filing to the
following registered persons:

Harlan I. Prater IV /s/Melissa L. Isaak

hprater@lightfootlaw.com Of Counsel
Melody H. Eagan
meagan@lightfootlaw.com
Jeffrey P. Doss
jdoss@lightfootlaw.com
LIGHTFOOT, FRANKLIN & WHITE, LLC
The Clark Building
400 20th Street North

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Birmingham, AL 35203
Telephone: (205) 581-0700
Facsimile: (205) 581-0799

Neil K. Roman
nroman@cov.com
Clara J. Shin*
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Megan L. Rodgers**
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Daniel W. Cho***
dwcho@cov.com
COVINGTON & BURLING, LLP
620 Eighth Avenue
New York, NY 10018
Telephone: (212) 841-1221
* San Francisco Office
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