Can parties waive recusal when their lawyer regularly acts as the judge's appointed referee?

Plain-English summary

A judge had appointed a lawyer as a referee for his child support cases. The lawyer also represented a party in a separate case before the judge. The opposing parties and their attorneys agreed to let the judge hear that case, but the referee's own client did not.

The Commission said a regularly assisting referee occupied a position of close trust with the judge, creating a reasonable question about impartiality. It found the judge disqualified even with the proposed waiver. Canon 3D allowed remittal only for disqualifications under specified subsections of Canon 3C(1), and this disqualification did not arise under those subsections; the lack of every party's agreement also defeated remittal on the facts.

In practice

Under this opinion, the consent offered by the opposing parties did not let the judge hear the case. The Commission treated the ongoing judge-referee relationship as a public impartiality concern beyond the proposed waiver.

Common questions

Q: Did the parties' proposed waiver permit the judge to hear the case?

A: No. The Commission held that this disqualification was outside Canon 3D's remittal provision.

Q: Would unanimity have cured the problem on these facts?

A: No. The opinion said Canon 3D did not permit remittal of this type of disqualification and also noted that one party had not agreed.

Background and rules framework

Alabama Canon 3C(1) governs recusal when impartiality might reasonably be questioned. Canon 3D permits written remittal only for disqualifications arising under Canon 3C(1)(c) or (d); the Commission said neither covered this situation.

Citations and references

Alabama Advisory Opinions 99-736, 00-754 and 00-757; Acromag-Viking v. Blalock, 420 So. 2d 60 (Ala. 1982); Matter of Sheffield, 465 So. 2d 350 (Ala. 1984); Alabama Rules of Judicial Administration Rule 35(C).

See also

• AL Judicial Ethics Op. 03-818: Former Clerk and Recusal

Source

• Landing page: Alabama JIC advisory opinions

• Original PDF: Advisory Opinion 03-815

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: MAY 6, 2003 ADVISORY OPINION 03-815
DISQUALIFICATION WHEN A REFEREE
APPOINTED BY THE JUDGE IS AN
ATTORNEY IN THE CASE
ISSUE
Is a judge disqualified to hear cases in which
a party is represented by an attorney who is a
referee appointed by the judge to assist on a
regular basis with the judge’s child support
cases if the opposing parties and their
attorneys agree that the judge should hear the
case and waive any objections pertaining to
the judge’s impartiality? Answer: Yes.
FACTS
The parties in a pending case were divorced in
1991. During the past ten years, the judge has
heard the evidence in numerous Petitions to
Modify and Petitions for Rule Nisi as well as
other issues involving the parties and has
issued numerous associated orders. Through
such hearings, the judge has become very
familiar with the parties and the case. A
petition to correct an earlier judgment was
pending when the judge became aware of
Advisory Opinion 00-757.
The judge had appointed the attorney for the
husband as a referee to hear child support
cases. The attorney assists the judge on a
regular basis with the judge’s child support
cases. The current petition to correct
judgment does not involve child support. The
opposing parties and their attorneys agree that
the judge should hear the case and waive any
objections pertaining to the judge’s
impartiality. The husband, who is represented
by the attorney who is the referee, does not
want the judge to hear the case.
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 impartiality of the
judge.’ Acromag-Viking 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 by a judge who has no
  actual bias in the case. Matter of Sheffield,
  465 So.2d at 356. In many circumstances, it
  will disqualifya judge even if all the parties to
  the proceeding would consent to the judge
  hearing the case. This is reflected in Canon
  3D, which only permits remittal of
  disqualification if the disqualification arises
  under subsection (c) or subsection (d) of
  Canon 3C(1). The canons are concerned with
  both the parties to an action and with
  maintaining confidence in the integrity and
  ADVISORY OPINION 03-815
  PAGE 2
  impartialityof the judiciaryamongthe general
  public. As noted in Acromag-Viking, supra,
  disqualification under Canon 3C(1) includes
  circumstances in which it is reasonable for
  members of the public to question the
  impartiality of the judge.
  In Advisory Opinions 99-736, 00-754 and 00-
  757, the Commission considered questions
  concerning the propriety under Canon 3C(1)
  of a judge hearing cases in which a party was
  represented by an attorney who was a referee
  appointed by the judge, then assisting the
  judge on a regular, ongoing basis with other
  cases over which the judge presided. In
  Advisory Opinion 99-736, the Commission
  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. In Advisory
  Opinion 00-754, the Commission noted that,
  because the referee in question heard cases in
  a courtroom while wearing a judicial robe, he
  would appear to the general public to be a
  judge. It also observed 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 who hear child support
  cases. In all three cases, the Commission
  concluded that the judge was disqualified to
  hear cases in which a partywas represented by
  the referee in question.
  Canon 3D provides for the remittal of
  disqualificationsarisingunderCanon3C(1)(c)
  or 3C(1)(d). It requires the written agreement
  of all parties and their lawyers. Canon 3D
  doesnot permitremittalofthedisqualification
  at issue because the disqualification does not
  arise under subsection (c) or (d) of Canon 3C.
  Even if the disqualification had arisen under
  one of these two subsections, it would not be
  remittedunderthefacts presentedbecauseone
  of the parties does not agree that the judge
  should hear the case.
  It is the opinion of the Commission that the
  judge is disqualified 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 basis with the judge’s
  child support cases even if the opposing
  parties and their attorneys agree to the judge
  hearing the case and would waive any
  objection to the judge’s impartiality.
  REFERENCES
  Acromag-Viking v. Blalock, 420 So.2d 60
  (Ala. 1982).
  Alabama Advisory Opinions 99-736, 00-754
  and 00-757.
  Alabama Canons of Judicial Ethics, Canons
  3C(1) and 3D.
  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, P. O. Box 303400,
  Montgomery, Alabama 36130-3400; tel.:
  (334) 242-4089; fax: (334) 353-4043; E-mail:
  [email protected].