Can a judge hear a class action after the judge's estate and relatives are excluded from the class?

Plain-English summary

A judge was a co-executor of an estate and a trustee of a trust receiving gas royalties. After an earlier opinion found him disqualified from a royalty class action, the plaintiff changed the class definition to exclude judges, their relatives, and estates for which they served as trustees. The Commission considered whether those exclusions removed the disqualification.

The exclusions meant that neither the judge nor his relatives remained class members and that the judge no longer had a financial interest in the proceeding on that basis. The Commission nonetheless said a possible benefit to the estate or cousins was an other interest requiring examination. If an interest might be substantially affected by the result, the judge was disqualified; if neither the estate nor the cousins had such an interest, he could hear the case.

In practice

Under this opinion, the class exclusions did not settle recusal. The Commission made the answer turn on whether the estate or cousins could still receive a benefit substantial enough to affect their interests.

Common questions

Q: Does removing the estate and relatives from the class automatically allow the judge to hear the case?

A: No. The Commission said they could still benefit from the outcome, and that potential benefit required analysis under the cited Canons.

Q: What if neither the estate nor the cousins has an interest substantially affected by the result?

A: The Commission said the judge would not be disqualified and could hear the case.

Background and rules framework

The opinion applied Alabama Canons 3C(1)(c), 3C(1)(d)(i) and (ii), and 3C(3)(c). It distinguished a financial interest or party status from another interest that could be substantially affected by the outcome.

Citations and references

Alabama Advisory Opinions 02-801, 91-434, 95-585 and 98-697; Alabama Rules of Civil Procedure Rule 23(c)(2).

See also

• AL Judicial Ethics Op. 95-585: Utility Customer and City Resident Recusal

• AL Judicial Ethics Op. 03-827: Acquaintance and Recusal

Source

• Landing page: Alabama JIC advisory opinions

• Original PDF: Advisory Opinion 03-823

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

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

JUDICIAL INQUIRY COMMISSION

DATE ISSUED: OCTOBER 17, 2003

ADVISORY OPINION 03-823

DISQUALIFICATION DUE TO INTEREST
THAT MAY BE SUBSTANTIALLY
AFFECTED BY THE OUTCOME OF THE
PROCEEDING

ISSUES

Is a judge who serves as one of the co-executors
of his deceased aunt’s estate and as a co-trustee of
a related testamentary trust for the benefit of two
cousins disqualified to hear an action in which the
estate would have been a class member but for
being excluded from the plaintiff class as defined
in a modified Order of Class Certification that
conforms to an amendment to the complaint?
Answer: If the judge or a close relative will
continue to have an interest that may be
substantially affected by the outcome of the case,
the judge is disqualified to hear the case even if
neither he nor his relative is a party to the action.

FACTS

A circuit judge was assigned to hear an action
alleging that the defendants had failed to make
royalty payments on half of the natural gas liquids
extracted from gas produced ina particular natural
gas field, and also that they have been improperly
charging certain costs to royalty owners. The
plaintiffs sought class certification; the purported
class then being all royalty and overriding royalty
owners in the natural gas field.

During the class certification hearing, as he was
examining an exhibit that had been introduced
into evidence, the judge noticed that one of the
royalty owners was a deceased aunt. The judge
serves as a coexecutor of this aunt’s will. Another
nephew and a bank serve as the other two
executors. A testamentary trust was created in the
will for the benefit of the decedent’s two
daughters, who are first cousins to the judge.
Royalties from the natural gas field are paid to the
trust, of which the judge is a trustee.

The judge requested an opinion from the

Commission as to whether he was disqualified
from hearing the case. In response, the
Commission issued Advisory Opinion 02-801, in
which it concluded that the judge was
disqualified, that the disqualification could be
remitted by the individual parties prior to class
certification, but that, if the class was certified,
each member of the class would have to remit the
disqualification in order for the judge to continue
with the case thereafter.

After Advisory Opinion 02-801 was issued, each
of the named parties individually remitted the
disqualification of the judge. Upon such remittal,
the judge took under submission all issues
regarding class certification. An order granting
class certification subsequently was entered, and
one of the defendants filed a notice of appeal
which was later withdrawn. The plaintiff has now
amended his complaint to change the class
definition to exclude various persons, and the
judge has amended the class certification order in
accordance with the amendment to the complaint,
as follows:

Excluded from the class are all federal
and state judges, including anyone related
by blood or marriage to said judge and
including any judge who serves or has
served as a Trustee of any Estate which is
aroyalty owner in the Jay-LEC Field, any
employee of Exxon, and any person or
legal entity who/which has already settled
the underlying claims presented herein
with Exxon.

DISCUSSION

Canon 3C(1)(c) provides, in pertinent part, that a
judge should disqualify himself when he knows
that he, individually or as a fiduciary, has a
financial interest in the subject matter in
controversy. Canon 3C(1)(d)(i) and 3C(1)(d)(ii)
further require disqualification whenever a person
within the fourth degree of relationship to the

ADVISORY OPINION 03-823
PAGE 2

judge is a party to the proceeding or is known by
the judge to have an interest that could be
substantially affected by the outcome of the
proceeding. Under Canon 3C(3)(c), “financial
interest” includes “ownership of a legal or
equitable interest.”

In the present case, as the class was originally
certified, the judge had a financial interest in the
subject matter of the case as a fiduciary (executor
of the estate and trustee of the trust) (Canon
3C(1)(c)). In addition, a person within the fourth
degree of relationship to the judge was a party to
the proceeding (Canon 3C(1)(d)(i)), and persons
within the fourth degree of relationship to the judge
(his cousins) were known to the judge to have an
interest that could be substantially affected by the
outcome of the case (Canon 3C(1)(d)(ii)). The
question presented is whether the exclusions made
to the class definition remove the applicability of
all of these provisions and, if so, is there any
remaining reasonable question as to the judge’s
impartiality that would cause disqualification under
the general provision in Canon 3C(1).

A person within the fourth degree of relationship is
not a party to the proceeding given the exclusions
that have been made to the definition of the
plaintiff class, and the judge no longer has a
“financial interest” in the proceeding given those
exclusions. Even if there is some possibility that
the estate might benefit financially as the result of
the action, such a remote, contingent possibility is
not a “financial interest.” However, any such
potential benefit from a case before a judge is an
“other interest” requiring analysis by the judge
under Canons 3C(1)(c) and 3C(1)(d)(ii). Advisory
Opinions 91-434, 95-585 and 98-697.

The suit before the inquiring judge in Advisory
Opinion 91-434 alleged a gas company had charged
its customers excessive rates; there was a
possibility that the outcome of the suit might cause
a reduction in the judge’s utility rate or a refund for
excessive rates paid in the past. After addressing
whether remittal was an option, and noting that

class representatives could not agree to remit
judicial disqualification on behalf of all class
members, the Commission wrote:

As an alternative to remittal of
disqualification, you may not simply
exclude yourself as a member of the class
as provided for in Rule 23(c)(2), Alabama
Rules of Civil Procedure. By excluding
yourself from the class you would not
preclude yourself from receiving the
benefit of any lowered rate on your gas
utility in the future.

It appears to the Commission that there is likewise
a possibility in the present case that the estate for
which the judge serves as one of the executors and
the judge’s two cousins might receive a benefit
from the case even if they are not within the plain-
tiff class. If this is so, the judge will need to exam-
ine the facts in order to determine whether the
interests of the estate and his cousins might be
substantially affected by the outcome of the pro-
ceeding. Should this analysis be necessary, the
judge should consider any benefit the estate or his
cousins would receive if the plaintiffs are success-
ful, whether that benefit is such that a reasonable
person might question his impartiality as a result,
and the remoteness of the interest and its extent and
degree. Advisory Opinions 91-434 and 95-585.

If the judge, as a fiduciary, or a close relative has
an interest that may be substantially affected by the
outcome of the case, the judge is disqualified to
hear the case even if both he and his relatives have
been excluded from the plaintiff class. Ifthe judge
finds that neither the estate nor his cousins have an
interest that may be substantially affected by the
outcome, he is not disqualified and may hear the
case.

REFERENCES
Advisory Opinions 91-434, 95-585 and 98-697.

Alabama Canons of Judicial Ethics, Canons

ADVISORY OPINION 03-823
PAGE 3

3C(1)(c), 3C(1)(d)(i), 3C(1)(d) (ii) and 3C(3)(c).

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].