Must every judge in a circuit recuse when their shared child-support referee appears as counsel?

Plain-English summary

All judges in a circuit jointly chose a child-support referee, sent him assigned cases, and approved his resulting orders. The referee conducted hearings in a courtroom while wearing a judicial robe and could also appear as a practicing lawyer.

The Commission held that all those judges were disqualified when the referee represented a party. His regular assistance, confidential-employee role under Rule 35(C), and public appearance as a judicial officer could reasonably make the judges' impartiality questionable.

Currency note

This opinion was issued in 2000, after the Alabama Supreme Court's 1975 adoption of the Alabama Canons of Judicial Ethics. Subsequent amendments or later opinions may have changed the analysis. Treat this page as historical context and verify the current Canons and linked opinion before relying on its conclusions.

Common questions

Q: Did recusal apply only to the judge who formally appointed the referee?

A: No. It applied to all circuit judges who used the shared referee in their assigned child-support cases.

Q: Why did the robe and courtroom matter?

A: The Commission observed that the referee would appear to the public to be a judge, reinforcing the impartiality concern.

Background and rules framework

Alabama Canon 3C(1)'s impartiality standard governed. Rule 35(C) described the referee as a confidential employee of the judges hearing child-support matters, and the Commission extended its earlier one-judge referee analysis to the whole circuit.

Citations and references

The opinion cites Alabama Canon 3C(1), Alabama Rule of Judicial Administration 35(C), Matter of Sheffield, 465 So. 2d 350 (Ala. 1984), and Advisory Opinion 99-736.

See also

• AL Judicial Ethics Op. 00-757: Appointed Referee as Counsel

Source

• Landing page: Alabama JIC advisory opinions

• Original PDF: Advisory Opinion 00-754

• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: JUNE 2, 2000 ADVISORY OPINION 00-754
DISQUALIFICATION WHEN A REFEREE
IS AN ATTORNEY IN THE CASE
ISSUE
Are all the judges in a circuit disqualified to
hear cases in which a party is represented by
an attorney who is a referee appointed to hear
child support matters when all the judges
assign cases to the referee, and the assigning
judge must approve orders by the referee?
Answer: Yes.
FACTS
The presiding judge in a judicial circuit has
appointed a referee to hear and issue orders
pertaining to child support matters. This
appointment was made pursuant to Rule
35(C), Alabama Rules of Judicial
Administration. The referee is paid by a grant
through the Administrative Office of Courts.
The referee was chosen jointly by all of the
judges in the circuit. Those judges all receive
a proportional share of the domestic relations
cases filed in the circuit, and they routinely
send to the referee any child support cases so
assigned to them. The referee’s orders must
be approved by the judge to whom the case
was assigned. The referee hears cases in a
courtroom, and he wears a judicial robe while
performing his duties as a referee.
DISCUSSION
A judge is required to disqualify himself in a
proceeding in which his “impartiality might
reasonably be questioned.” Canon 3C(1).
“Recusal is required under Canon 3C(l)
when ‘facts are shown which make it
reasonable for members of the public or a
party, or counsel opposed to question the
impartialityofthejudge.’ AcromagViking
v. Blalock, 420, So.2d 60, 61 (Ala. 1982).
See, also, Wallace [v. Wallace, 352 So.2d
1376, 1379, (Ala.Civ.App. 1977)].
Specifically, the Canon 3C(l) test is:
‘Would a person of ordinary prudence in
the judge’s position knowing all of the
facts known to the judge find that there is
a reasonable basis for questioning the
judge’s impartiality?’ Thode,The Code of
Judicial Conduct - The First Five Years in
the Courts, 1977 Utah L.Rev. 395, 402.”
Matter of Sheffield, 465 So.2d 350, 355-356
(Ala. 1984). The recusal test stated in Canon
3C(1) sometimes bars trial bya judge who has
no actual bias in the case. Matter of Sheffield,
465 So.2d at 356.
In AdvisoryOpinion 99-736, the Commission
held that a judge is disqualified under Canon
3C(1) to hear cases in which a party is
represented by an attorney who is a referee
appointed by the judge, then assisting the
judge on a regular, ongoing basis with other
cases over which the judge presides. This
opinion addressed the situation where a
referee is chosen by a judge to assist the judge
on a continuing basis with cases over which
thejudgeroutinelypresides. TheCommission
noted that such a referee stands in a position
of close trust with the judge who appointed
him, and it concluded that a person of ordinary
prudence might reasonably question the
judge’s impartiality in a case in which such a
referee represents a party.
ADVISORY OPINION 00-754
PAGE 2
Because the referee in question hears cases in
a courtroom while wearing a judicial robe, he
would appear to the general public to be a
judge. The Commission also notes that a
referee appointed under Rule 35(C) of the
Alabama Rules of Judicial Administration is,
by the terms of that rule, a confidential
employee of the judge or judges in the circuit
who hear child support cases. Under these
facts, it is the opinion of the Commission that
a person of ordinary prudence might
reasonably question the impartiality of the
judges of the circuit in cases in which this
referee represents a party. Thus, the
Commission concludes that all the judges in
the circuit are disqualified to hear cases in
which this referee appears as counsel for a
party.
REFERENCES
Alabama Advisory Opinion 99-736.
Alabama Canons of Judicial Ethics, Canon
3C(1).
Alabama Rules of Judicial Administration,
Rule 35(C).
Matter of Sheffield, 465 So.2d 350 (Ala.
1984).
This opinion is advisory only and is based on
the specific facts and questions submitted by
the judge who requested the opinion pursuant
to Rule 17 of the Rules of Procedure of the
Judicial Inquiry Commission. For further
information, you may contact the Judicial
Inquiry Commission, 800 South McDonough
Street, Suite 201, Montgomery, Alabama
36104; tel.: (334) 242-4089; fax: (334) 240-
3327; e-mail: [email protected].