Birt v. State
350 S.E.2d 241, 256 Ga. 483, 1986 Ga. LEXIS 925 (1986)
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Rule of Law:
When a motion to recuse a judge is supported by a sworn statement alleging facts that, if proven true, would be sufficient to warrant disqualification, the moving party is entitled to an evidentiary hearing on the matter. A verified motion can substantially comply with the requirement of a separate supporting affidavit if it contains the factual basis for the recusal request.
Facts:
- Billy Sunday Birt was scheduled for a resentencing hearing in a capital case in the Superior Court of Jefferson County.
- Judge Walter C. McMillan was assigned to preside over the resentencing hearing.
- Birt believed that Judge McMillan held a personal bias and prejudice against him that would prevent an impartial hearing.
- Birt's attorneys documented the specific facts forming the basis of this belief in a written motion to have Judge McMillan removed from the case.
Procedural Posture:
- Billy Sunday Birt appeared in the Superior Court of Jefferson County, a trial court, for a resentencing hearing.
- Birt's defense filed a motion to recuse the presiding judge, Judge Walter C. McMillan.
- The motion was administratively assigned to another judge, Judge James B. O’Connor, for determination.
- Before Judge O'Connor ruled, Judge McMillan issued a ruling denying the motion as untimely and legally insufficient.
- On a previous appeal, the Supreme Court of Georgia reversed, holding that Judge McMillan was disqualified from ruling on the motion after referring it to another judge.
- On remand, Judge O’Connor granted the state’s motion to dismiss Birt's recusal motion without holding an evidentiary hearing.
- The Supreme Court of Georgia granted this interlocutory appeal from Judge O'Connor's order dismissing the motion.
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Issue:
Does a timely motion to recuse a judge, which contains sworn factual allegations of bias within the motion itself rather than in a separate affidavit, require an evidentiary hearing when the allegations, if assumed to be true, would authorize recusal?
Opinions:
Majority - Marshall, Chief Justice
Yes. A defendant is entitled to an evidentiary hearing on his motion to recuse a judge if the motion is timely, legally sufficient, and sets forth factual allegations that, if proven, could support a finding of partiality sufficient to require recusal. The court reasoned that under Uniform Superior Court Rule 25.2, once a motion to recuse is assigned to a new judge, that judge must determine its timeliness, legal sufficiency, and whether the alleged facts would warrant recusal if true. The court held that a motion containing the factual allegations, accompanied by a sworn verification, substantially complies with the rule requiring a supporting affidavit, as substance should control over mere nomenclature. Applying the standard that a judge's impartiality must not even 'reasonably be questioned,' the court found that Birt's verified motion contained allegations that, if proved, could meet this standard. Therefore, it was an error for the lower court to dismiss the motion without an evidentiary hearing.
Analysis:
This decision clarifies the procedural requirements for motions to recuse, establishing that substance over form governs the sufficiency of the supporting affidavit. By allowing a verified motion to substitute for a separate affidavit, the court lowered a potential procedural barrier for litigants claiming judicial bias. More significantly, the ruling reinforces the low threshold for obtaining an evidentiary hearing on such a motion, requiring only that the movant allege facts which, if true, would warrant recusal. This protects the due process right to an impartial tribunal by ensuring that credible allegations of bias are fully heard and not summarily dismissed.
