May judges select a court-ordered parenting provider who also testifies in criminal cases?

Plain-English summary

Circuit judges proposed a required co-parenting program for divorce and modification litigants. Its operator was also an ABC Board enforcement agent who often investigated offenses and testified for the prosecution. The judges asked about making his program the sole provider and about hearing criminal cases in which he was a material witness.

The Commission said a sole-provider appointment was permissible if any competing program was passed over for an objective reason. It also concluded that the agent's witness role did not itself reasonably question the judges' impartiality: the operator was neither a judge's employee nor a person in a close confidential relationship with the judges.

In practice

The opinion made the appointment answer depend on whether there were comparable providers and an objective reason for choosing this one. It treated the operator's appearances as a witness as a separate recusal question and found no disqualification on that fact alone.

Common questions

Q: Could judges appoint the agent's program as the only provider?

A: Yes, but if competing programs existed, the Commission required an objective reason for selecting his program over them.

Q: Would his testimony in criminal cases require recusal?

A: No. The Commission found that his role as a material prosecuting witness did not alone create a reasonable question about impartiality.

Background and rules framework

The Commission applied Alabama Canon 3B(4)'s merit-based appointment requirement and Canons 1 and 2 on appearance and public confidence. It analyzed the witness question under Canon 3C(1)'s impartiality standard.

Citations and references

Alabama Advisory Opinions 93-468, 94-519, 94-532, 94-538, 98-707 and 01-770; In re Sheffield, 465 So. 2d 350 (Ala. 1984); Ex parte Duncan, 638 So. 2d 1332 (Ala. 1994).

See also

• AL Judicial Ethics Op. 03-821: Shared Courthouse Employee

Source

• Landing page: Alabama JIC advisory opinions

• Original PDF: Advisory Opinion 02-802

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: AUGUST 1, 2002 ADVISORY OPINION 02-802
APPOINTING PROVIDER OF COURT-
O R D E R E D S E R V I C E ;
DIS QUALIFIC ATION D U E T O
APPEARANCE OF PROVIDER OF
COURT-ORDERED SERVICE AS
PROSECUTING WITNESS
ISSUES
I. May an individual who is an enforcement
agent with the ABC Board be appointed as the
sole provider of a court-ordered co-parenting
program in a particular circuit? Answer:
Yes, so long as, if there are any other
competing providers of the service, there is an
objective reason for the selection of his
program.
II. If the individual may be so appointed,
would the judges in the circuit be disqualified
to hear criminal cases in which that individual
is a material prosecuting witness? Answer:
No.
FACTS
It has been proposed that the circuit judges in
a particular circuit require all litigant parents
in divorce and post-divorce modification
proceedings to enroll in and complete a
co-parentingstrategyprogrampriortoentryof
a final decree. A fee of $50.00 would be
assessed to each participant for their
enrollment.
The individual who operates the program
under consideration is also an enforcement
agent with the ABC Board. In that capacity,
he frequently investigates, arrests and/or
otherwise causes criminal charges to be
brought against individuals alleged to have
violated criminal laws concerning controlled
substances, alcohol and tobacco. Bydoing so,
he is called upon to testify in trials and during
other evidentiary hearings incidental to the
criminal prosecutions.
The presidingcircuit judge inquires whetherit
is ethically permissible to appoint this
individual as the sole provider of the proposed
court-ordered service and, if so, whether there
would be an ethical conflict in the judges in
the circuit hearing cases in which said
individual is a material prosecuting witness
for the State.
DISCUSSION
The two issues presented are interrelated, and
involve consideration of several provisions in
the Alabama Canons of Judicial Ethics.
Canon 3B(4) requires judges to exercise the
power of appointment only on the basis of
merit,avoidingboth nepotism andfavoritism.
Canon 2 requires a judge to “avoid
improprietyandtheappearanceofimpropriety
in all his activities.” Canon 2A provides, in
pertinent part, that a judge “should conduct
himself at all times in a manner that promotes
public confidence in the integrity and
impartiality of the judiciary.” In addition, a
judge should not “convey or permit others to
convey the impression that they are in a
special position to influence him.” Canon 2C.
In AdvisoryOpinion 94-532, the Commission
informed a judge that the Alabama Canons of
Judicial Ethics were not violated by the mere
fact that the judge ordered a defendant to
receive education or treatment at a private
drivers’ education facilityso long as the judge
ADVISORY OPINION 02-802
PAGE 2
did not have a financial interest in the facility
or receive any personal benefit from the
referral.
In AdvisoryOpinion 93-468, the Commission
responded to an inquiry involving the
selection between two local rehabilitative
facilities in sentencing spouse abusers. The
Commission concluded that, to avoid any
appearance of impropriety, the judge should
make reasonable efforts to insure that neither
facilitywasfavoredoverthe otherunless there
was an objective reason for sentencing a
defendant to one particular facility, such as a
difference in the quality or cost of services, or
in the facilities’ willingness to cooperate with
the court.
In Advisory Opinion 94-538, the judge’s
bailiff taught a State-approved court referral
program DUI school. The Commission
advised the judge that he should not sentence
any defendant to a DUI school taught by his
bailiff. In the Commission’s opinion, such an
arrangementwas“fraught with theappearance
of impropriety” and did “not promote public
confidence in the integrity and impartiality of
the judiciary.” Canons 1 and 2. The
Commission also concluded that such
sentences would be problematic under the
Canon 2C proscription on conveying or
permitting others to convey the impression
they are in a special position to influence the
judge.
In analyzing a situation involving appointing
a particular individual as a general
conservator, the Commission in Advisory
Opinion 01-770 considered whether the
proposed appointment would be improper
because it would result in disqualification of
the judge from hearing an excessive number
of cases. The Commission had previously
counseled against a judge hiring the mother-
in-law of a local attorney as the judge’s bailiff
where, under the facts presented, such
employment would cause more than
occasional disqualification of the judge.
Advisory Opinion 98-707.
Canon 3C(1) provides generally that a judge
should disqualifyhimself in anyproceedingin
which his “impartiality might reasonably be
questioned.” Several specific instances in
which disqualification is required are listed in
subsections of this canon. Thefirstsubsection
includes cases in which the judge has a
personal bias or prejudice concerning a party.
Canon 3C(1)(a). The Commission assumes
the judges have no bias or prejudice
concerning a party related to the situation
presented.
Since none of the other subsections of Canon
3C(1) potentially apply, the question is
whether the judges’ impartiality could
reasonably be questioned in criminal cases
where a material prosecuting witness was an
individual who had been appointed to operate
a co-parenting program that was required in
certain domestic cases. The test under Canon
3C(1) 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?” In re Sheffield, 465
So.2d 350, 356 (Ala. 1984). The question
under Canon 3C(1) is not whether the judge is
impartial in fact, but rather whether another
person, knowing all of the circumstances,
might reasonably question the judge’s
impartiality. Ex parte Duncan, 638 So.2d
1332, 1334 (Ala. 1994).
ADVISORY OPINION 08-802
PAGE 3
The Commission has previously concluded
that an inquiring judge was not disqualified to
hear a case due to the fact that the clerk of the
circuit court would be a material witness. The
Commission wrote that the professional
relationship between a circuit judge and a
circuit clerk is not such as would cause a
judge’s impartiality to reasonably be
questioned. Advisory Opinion 94-519. In the
opinion oftheCommission, theimpartialityof
the judges in a circuit would not be drawn into
reasonable question in a case merely because
a material prosecuting witness operated a co-
parenting program in which participation was
court ordered in certain domestic cases.
The individual operating the proposed
program is not an employee of the judge, nor
is he in a position of close confidence with the
judge. The fact that he appears with some
regularity before the circuit court as a
prosecuting witness in criminal cases does not
create the kind of problem with improper
appearances that would exist if he was a
confidential employee of the judge.
The Commission has not been informed as to
whether there are any other comparable
programs available to provide the proposed
service. If there are any such programs, the
ABC agent’s program should not be selected
as the sole provider of the service unless there
is anobjectivereason for utilizing his program
rather than another program. Canons 1, 2, and
3B(4); Advisory Opinion 93-468.
REFERENCES
Advisory Opinions 93-468, 94-519, 94-532,
94-538, 98-707, and 01-770.
Alabama Canons of JudicialEthics, Canons 1,
2, 2A, 2C, 3B(4), 3C(1), and 3C(1)(a).
Ex parte Duncan, 638 So.2d 1332 (Ala.
1994).
In re 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, P. O. Box 303400,
Montgomery, Alabama 36130-3400; tel.:
(334) 242-4089; fax: (334) 353-4043; E-mail:
[email protected].