Must a judge recuse after inadvertently reading a party’s letter about a pending case or because the other party’s father serves on a legislative judiciary committee?

Plain-English summary

A congressman forwarded a party’s letter about a divorce case to a judge who read it without initially recognizing that the case was pending before him. The judge promptly disclosed it to counsel and arranged copies. The other party also sought recusal because the defendant’s father served in the Alabama legislature on a judiciary committee.

The Commission found no disqualification on either ground. For the letter, it relied on prompt disclosure and the absence of personal bias resulting from the communication. For the father’s legislative role, it found the stated facts did not create a reasonable question about impartiality.

The opinion applied its prior analysis of an inadvertent ex parte communication and Canon 3C(1)’s reasonable-impartiality standard.

In practice

The first holding rests on prompt disclosure and lack of resulting bias; the second addresses only the legislative service described in the inquiry.

Common questions

Q: Did reading the letter require recusal?

A: No. The judge promptly disclosed it and had not developed bias from it.

Q: Was the legislator father’s committee position enough for recusal?

A: No. The Commission found no reasonable question about impartiality on those facts.

Q: How was the letter shared with the parties?

A: The judge called counsel immediately and arranged for copies.

Background and rules framework

Canon 3C(1) governs reasonable questions about impartiality. The opinion quotes its earlier discussion of Canon 3A(4) concerning notice after an inadvertent ex parte communication.

Citations and references

Alabama Canons of Judicial Ethics:

• Canon 3C(1); Canon 3A(4) discussed through Advisory Opinion 99-720

Cases:

• Acromag-Viking v. Blalock, 420 So. 2d 60 (Ala. 1982)
• Matter of Sheffield, 465 So. 2d 350 (Ala. 1984)

Other opinions cited:

• Alabama Advisory Opinion 99-720

See also

• AL Judicial Ethics Op. 05-849: Relative Attorney’s Late Appearance
• AL Judicial Ethics Op. 04-847: Judge’s Volunteer Lawyers Program Letter

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 05-848

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: JANUARY 21, 2005 ADVISORY OPINION 05-848
DISQUALIFICATION DUE TO RECEIPT OF
EX PARTE COMMUNICATION;
DISQUALIFICATION DUE TO PARTY'S
RELATIVE'S SERVICE IN LEGISLATURE
ISSUES
I. Is a judge disqualified to hear a case
because, before realizing that the letter
concerned a case pending before him, he read
a letter written by a party to a Congressman
that had been forwarded to his office?
Answer: No, since the judge promptly
disclosed the communication to the parties,
and he did not develop a personal bias or
prejudice concerning a party as a result.
II. Is a judge disqualified to hear a case
because the defendant's father is a member of
a Judiciary Committee of the Alabama
legislature? Answer: No.
FACTS
The plaintiffina divorce proceeding has filed
a motion to recuse the circuit judge assigned
to the case. One ground for the motion con­
cerns a letter the defendant sentto his United
States Congressmanthat containsallegations
concerning the merits of the case. The con­
gressman forwarded the letter to the judge's
office with a form cover letter, and the judge
read the letter without realizing it pertained
to a pending case. The case is one ofa series
that had been re-assigned to thejudge, and he
did not know anything about it until he got
the letter. The judge immediately called the
lawyers in the case, disclosed the letter, and
arranged for them to obtain copies.
The other ground stated forrecusal is that the
father of the defendant is a member of the
Alabama legislature and serves on one ofthe
JudiciaryCommittees. The plaintiffcontends
that this creates a reasonable question
regarding the impartiality of any currently
elected judge, and that a retired judge should
be assigned by the Administrative Office of
Courts to hear the case.
Thejudgehas stated that he can hear the case
fairly and impartially, solely on the facts and
the law, and that he would not be influenced
by either the letter or the position of the
defendant's father.
DISCUSSION
The Commission has previously addressed
the subject of disqualification related to
receipt of an ex parte communication in
Advisory Opinion 99-720. In that opinion, the
Commission wrote the following:
Canon 3A(4) does not address the
question ofremedy when an ex parte
communication inadvertentlyoccurs.
However, itdoesprovide, with respect
to ex parte consultation of an
impartial expert, that the judge
should, where justice requires, give
notice to the parties and afford a
reasonable opportunity to respond.
The Commission is ofthe opinionthat
the judge acted appropriately in this
case in disclosing the facts on the
record, and that no further remedial
action is required.
The Commission concluded in Advisory
Opinion 99-720 that the inquiring judge was
not disqualified unless he developed a
personal bias orprejudice concerning a party
as a result ofthe communication.
The Commission finds the reasoning and
conclusion in Advisory Opinion 99-720
applicable to the fIrst issue in the current
inquiry. Since the judge promptly disclosed
the communication to the parties and he did
not develop a personal bias or prejudice
concerning a party as a result of the
communication, the Commission is of the
opinion that receipt of the communication
does not disqualify him to hear the subject
case.
ADVISORY OPINION 05-848
PAGE 2
Under Canon 3C(I), recusal is required when
"facts are shown which make it reasonable
for members of the public or a party, or
counsel opposed to question the impartiality
ofthe judge." Acromag-Viking v. Blalock, 420
So.2d 60, 61 (Ala. 1982). Specifically, the test
under Canon 3C(I) is: "Would a person of
ordinary prudence in the judge's position
knowing all of the facts known to the judge
fmd that there is a reasonable basis for
questioningthejudge's impartiality?" Matter
ofSheffzeld, 465 So.2d 350, 356 (Ala. 1984).
With respect to the second issue presented,
the Commission is of the opinion that the
stated facts do not create a reasonable
question as to the judge's impartiality and,
therefore, that the judge is not disqualified to
hear the case.
REFERENCES
Acromag-Viking v. Blalock, 420 So.2d 60 (Ala.
1982).
Advisory Opinion 99-720.
Alabama Canons of Judicial Ethics, Canon
3C(I).
Matter ofSheffield, 465 So.2d 350 (Ala. 1984).
This opinion is advisory only and is based on
the specific facts and questions submitted by
thejudge who requested the opinionpursuant
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:
j [email protected].