May a disqualified probate judge appoint a temporary judge to hear the affected cases?

Plain-English summary

A probate judge's prior guardian, fiduciary/payee, and conservator roles disqualified him from some matters. His voluntary recusal from former-firm cases was not required by the Canons. Temporary probate judges assisted with the docket under a local act, and he asked whether he could appoint them to hear cases he could not hear.

The Commission said he could not make those appointments for cases from which he was disqualified. It applied Ex parte Jim Walter Homes' concern that a disqualified judge's reassignment could itself appear improper. It distinguished actual disqualification from recusal in cases where the Canons did not require it; the latter did not bar reassignment. The Commission said the correct appointment procedure was a legal question outside its authority.

Currency note

This opinion was issued in 2001, 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: Does the answer apply when the judge is actually disqualified?

A: Yes. The Commission barred him from appointing temporary judges to hear cases he was disqualified to hear.

Q: Did the Commission decide who should appoint the replacement?

A: No. It said the correct procedure under the local act was a legal question it could not resolve.

Background and rules framework

The Commission applied Alabama Canon 3C and Ex parte Jim Walter Homes, Inc., 776 So. 2d 76 (Ala. 2000), which prohibited a disqualified judge from reassigning the case under Rule 13 because the reassignment's impartiality might reasonably be questioned.

Citations and references

The opinion cites Alabama Canon 3C and Ex parte Jim Walter Homes, Inc., 776 So. 2d 76 (Ala. 2000).

See also

• AL Judicial Ethics Op. 02-794: Disqualified Judge Reassignment

Source

• Landing page: Alabama JIC advisory opinions

• Original PDF: Advisory Opinion 01-777

• 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: MAY 18, 2001 ADVISORY OPINION 01-777
APPOINTMENT OF TEMPORARY
PROBATE JUDGES
ISSUES
May a probate judge appoint temporary
probate judges to hear cases the judge is
disqualified to hear? Answer: No.
FACTS
A new probate judge has served in the past as
the guardian of certain persons, by
appointment of the probate court. Many of
these individuals have been patients at Searcy
Hospital. In this role as guardian, he did not
serve as the protected person’s lawyer. The
judge also previously served in a number of
cases as a federal fiduciary/payee by
designation from the United States Social
Security Administration and/or the United
States Administration for Veteran Affairs. In
this capacity, he received and distributed the
funds of the protected persons under the
supervision of the Social Security
Administration or the Department of Veteran
Affairs. In some cases, he provided legal
assistanceto persons for whom he wasserving
as fiduciary/payee. The new judgealso served
for a period as the general conservator for the
county.
In a prior advisory opinion, the judge was
advised that the foregoing circumstances
caused disqualification to hear certain cases
that may come before him. It also found that,
while not required by the canons, the judge’s
intention to refrain from hearing any cases
involving his former firm for a one-year
period after taking office was in keeping with
the spirit and goals of Canons 1 and 2A when
doing so was feasible and consistent with the
proper functioning of the court.
The appointment of special probate judges in
the county is governed by a general bill of
local application. Under this Act, the judge
may appoint one or more temporary probate
judges to serve contemporaneously with him
when he finds such appointments necessary
due to various circumstances, including
caseload management. The Act further
provides that the decisions of a temporary
judge are not subject to revision bythe elected
judge, and that the elected judge is not
responsible for any acts or decisions by a
temporary judge.
The current procedure for dealing with cases
in which the elected judge is disqualified or
otherwise recused is to assign these cases to a
temporary judge. The elected judge appoints
temporary judges to assist with caseload
pursuant to the local Act. The actual
assignment of cases is made by and through
the Chief Clerk of the Probate Court or at the
Chief Clerk’s direction. The Chief Clerk is a
permanent civil service employee. Decisions
made by temporary judges are not subject to
the elected judge’s review or supervision.
The Attorney General has issued an opinion
that the foregoing appointment of temporary
judges by the elected judge does not violate
the general laws of the State. The judge
inquireswhethertheCanonsofJudicialEthics
ADVISORY OPINION 01-777
PAGE 2
permit him to appoint temporary probate
judges who will hear cases the judge is
disqualified to hear.
DISCUSSION
In Ex parte Jim Walter Homes, Inc., the
Alabama Supreme Court decided that, after a
trial judge presiding in a particular case has
been disqualified from hearing the case under
the Canons of Judicial Ethics, either by
voluntaryaction of the judgeor after objection
by a party, the judge maynot reassign the case
to another judge under Rule 13 of the
Alabama Rules of Judicial Administration.
The Court noted that, under normal
circumstances, a presiding judge in a circuit
has authority under Rule 13 to temporarily
assign other judges to serve in the circuit
when the presiding judge deems the
assignment necessary to assist in the orderly
administration of justice. However, the Court
concluded that it would be contrary to Canon
3C for a disqualified judge to reassign the case
because the impartiality of the reassignment
might reasonably be questioned. The Court
stated that its holding was made in order to
avoid the appearance of impropriety. Ex parte
Jim Walter Homes, Inc., 776 So.2d 76, 78-80
(Ala. 2000).
The inquiring judge is currently recusing
himself both from cases in which he is
disqualified and from other cases in which his
former firm is involved as to which the
Canons do not require his disqualification.
With regard to the latter cases, the
Commission observes that the opinion in Jim
Walter Homes distinguished prior decisions
upholding reassignment by the original judge
after recusal when the recusing judge was not
actually disqualified to hear the case. Id., at

79. Thus, the opinion in Jim Walter Homes
    does not appear to cast any doubt on the
    propriety of the conduct at issue with respect
    to cases in which the Canons do not require
    disqualification of the judge. However, the
    Commission concludes that the judge maynot
    appoint temporary probate judges to hear
    cases the judge is disqualified to hear.
    The correct procedure for appointment of a
    temporary probate judge when the elected
    judge is disqualified is a legal question the
    Commission cannot resolve. However, the
    Commission notes that subsection (a) of the
    local Act appears to provide for appointment
    of temporary probate judges by the presiding
    judge of the circuit in circumstances that
    include disqualification of the elected probate
    judge.
    REFERENCES
    Alabama Canons of Judicial Ethics, Canon
    3C.
    Ex parte Jim Walter Homes, Inc., 776 So. 2d
    76 (Ala. 2000).
    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].