Is a mayor-appointed municipal judge disqualified from hearing an assault charge against a city employee?

Plain-English summary

A former city employee charged a current city employee with assault over an incident at City Hall and argued that the municipal judge was disqualified because the mayor appointed the judge. The Commission found no reasonable question about impartiality on those facts. It concluded that the judge could hear the case if the judge felt able to act impartially.

Common questions

Q: Is a mayor-appointed municipal judge disqualified from hearing an assault charge against a city employee?

A: No, on the stated facts, so long as the judge feels able to act impartially. The Commission found no reasonable question about impartiality merely from the appointment and the defendant’s city employment.

Background and rules framework

Canon 3C(1) requires disqualification when impartiality might reasonably be questioned. Canon 3C(1)(a) addresses personal bias or prejudice concerning a party. The opinion distinguished the judge’s actual ability to act impartially from the appearance question.

Citations and references

Ex parte Duncan, 638 So.2d 1332 (Ala. 1994); Matter of Sheffield, 465 So.2d 350 (Ala. 1984).

See also

• AL Judicial Ethics Op. 04-832: Regular Attorneys’ Conduct and Testimony
• AL Judicial Ethics Op. 04-833: Prior Representation and Sentence

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 03-829

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: DECEMBER 19, 2003

ADVISORY OPINION 03-829

DISQUALIFICATION OF MUNICIPAL JUDGE
TO HEAR CHARGE AGAINST CITY
EMPLOYEE

ISSUE

May a municipal judge hear a misdemeanor
charge involving the alleged assault of a former
city employee by a current city employee at
City Hall? Answer: Yes, if the judge feels he
can act impartially in the matter.

FACTS

A part-time municipal judge has been assigned
a misdemeanor assault case. The warrant was
signed by a former city employee against a cur-
rent city employee over an incident that was
alleged to have occurred at City Hall. The de-
fendant had been the former employee’s super-
visor. The judges for the municipal court are
appointed by the mayor. The former employee
alleges the judge is disqualified because he is
appointed by the mayor and the defendant is
still employed by the city.

DISCUSSION

Canon 3C(1) states that a judge is disqualified
whenever the judge’s “impartiality might rea-
sonably be questioned.” This general provision
is followed by subsections listing some specific
circumstances under which a judge’s impar-
tiality might reasonably be questioned.

Canon 3C(1)(a) provides, in pertinent part, that
a judge is disqualified if he has a personal bias
or prejudice concerning a party. Under this
provision, ajudge would be disqualified to hear
a case if he or she determined that he or she
could not be impartial but rather would be af-
fected by the fact that the defendant is a city
employee and the judge is appointed by the
mayor.

None of the other specific subsections of Canon
38C(1) apply. Thus, the only remaining question
is whether the judge is disqualified under the
general disqualification provision.

“Recusal is required under Canon 3C(1)
when ‘facts are shown which make it

reasonable for members of the public or
a party, or counsel opposed to question
the impartiality ofthejudge.’ 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(1) 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 question-
ing 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 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).

The Commission finds no reasonable question
as to the judge’s impartiality under the facts
presented. Thus, it is of the opinion that the
judge is not disqualified to hear the subject
case so long as he feels that he can act impar-
tially in the matter.

REFERENCES

Alabama Canons of Judicial Ethics, Canon
3C(1) and 3C(1)(a).

Ex parte Duncan, 638 So.2d 1332 (Ala. 1994).

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 Judi-
cial Inquiry Commission. For further informa-
tion, 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].