Do an unrelated old prosecution, complaints by a litigant, remote former employment and firm ties, and an unsupported investigation allegation disqualify a judge?

Plain-English summary

A city sought an injunction against a defendant over a business license. After the judge granted relief, the defendant sought recusal based on a prosecution from 1984, complaints he said he filed, the judge’s past work for the city and former partnership with its counsel, and an alleged EEOC and FBI investigation.

The Commission found no disqualification. The old prosecution was unrelated; the judge said complaints had caused him no bias; his city employment and partnership ended almost twenty years earlier; and the pending matter did not exist while he was with the firm. The judge knew of no investigation fitting the defendant’s allegation.

The Commission also considered the circumstances together and found they did not reasonably call impartiality into question. It distinguished prior work in the matter in controversy from remote ties to a party or its current counsel.

In practice

The holding is tied to the remoteness and lack of connection of the prior work, the absence of bias from any complaint, and the unsupported investigation allegation.

Common questions

Q: Did an unrelated prosecution twenty years earlier require recusal?

A: No. The earlier prosecution concerned different issues.

Q: Did the alleged complaints themselves disqualify the judge?

A: No. The judge reported no bias arising from them, and the opinion identified no special circumstances requiring recusal.

Q: Had the former firm handled this matter while the judge was a partner?

A: No. The present matter was not in controversy during the partnership.

Q: Did the Commission assess the allegations together?

A: Yes. It found the total circumstances insufficient to create a reasonable question about impartiality.

Background and rules framework

Canon 3C(1) asks whether the circumstances provide a reasonable basis to question impartiality. Canon 3C(1)(b) addresses a former practice associate’s work in the same matter during the association; the stated facts did not meet that condition.

Citations and references

Alabama Canons of Judicial Ethics:

• Canon 3C(1) and Canon 3C(1)(b)

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 Opinions 87-292, 89-364, 90-391, 91-460, 92-447, 95-546, 97-655, 98-686, and 99-740

See also

• AL Judicial Ethics Op. 05-853: Judge Publishing Sex Crime Convictions
• AL Judicial Ethics Op. 05-854: Spouse as Counsel in a Related School Incident

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 05-855

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: JULY 15, 2005 ADVISORY OPINION 05-855
DISQUALIFICATION DUE TO PREVIOUS
PROSECUTION OF THE DEFENDANT;
COMPLAINTS BY THE DEFENDANT
AGAINST THE JUDGE; FORMER
EMPLOYMENT AS ATTORNEY FOR
PLAINTIFF CITY; FORMER MEMBERSHIP
IN FIRM REPRESENTING PLAINTIFF;
AND/OR ALLEGED INVOLVEMENT OF
JUDGE AND DEFENDANT IN EEOC AND
FBI INVESTIGATION
ISSUE
Is ajudge disqualified to hear a case because:
(a) the judge prosecuted the defendant in an
unrelated case many years ago; (b) the
defendant alleges he has filed complaints
against the judge; (c) the judge was employed
by the plaintiff city many years ago; (d) the
judge was, many years ago, a member ofthe
law firm that represents the plaintiff city;
and/or (e) the defendant alleges that he and
the judge were involved in an EEOC and FBI
investigationseveral years ago? Answer: No.
FACTS
A circuit judge has pending before him an
action by a municipality for injunctive relief
against an individual for conducting a
business without having purchased a
privilege license. After a hearing in
February, the judge entered an order in
March granting the relief sought by the city.
Thereafter, the judge entered another order
appointing a special master to prepare an
accounting and determine the amount of
license tax owed by the defendant. At the end
of May, the defendant filed a motion for
recusal in which he contends that the judge
should recuse because (a) the judge
prosecuted him when he was the city
prosecutor; (b) he has filed three complaints
against the judge with the Judicial Inquiry
Commission and the Ethics Commission
alleging the judge is biased against him; (c)
the judge was formerly employed by the city;
(d) the judge was formerly a law partner with
the firm that now represents the city in the
pending case; and (e) he and the judge were
"involved in an investigation conducted by
the EEOC and the FBI in 1999."
The previous prosecution ofthe defendant by
the judge was in 1984; it involved issues
completely different from the issues in the
present case and was resolved in favor ofthe
defendant. The judge does not know how
many complaints the defendant has filed
against him; he has no personal or
professional bias against the defendant. The
judge has not been employed by the city since
he became a circuit judge in January 1987,
and he never handled any matter involving
the defendant related to the issues in the
present case while employed by the city. He
left the law firm that is prosecuting the
pending case in December 1986 and has not
been connected with that firm in any way
since then; the present case was not a matter
in controversy when the judge was with the
firm. The judge has no knowledge of any
investigation by the EEOC or FBI involving
him and the defendant.
DISCUSSION
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
find that there is a reasonable basis for
questioning thejudge's impartiality?" Matter
ofSheffzeld, 465 So.2d 350, 356 (Ala. 1984).
The mere fact that a judge has prosecuted a
party in a previous proceeding does not
disqualify the judge from sitting in an
unrelated later proceeding. Disqualification
would exist, however, if the current
proceeding in any way involved the matters
ADVISORY OPINION 05·855
PAGE 2
or facts previously prosecuted. Advisory
Opinions 89-364 and 91-460. The prosecution
ofthe defendant twenty yearsago is unrelated
to the case now pending before the judge. In
the Commission's opinion, that prosecution
does notcreatea reasonable question asto the
judge's impartiality.
The Commission has long held that a
litigant's actions toward or statements about
a judge during the course of a jUdicial
proceeding do not cause the judge to be
disqualified unless the judge is actually
influenced and develops a personal bias or
prejudice as a result. See, e.g., Advisory
Opinions 90-391 and 98-686. Tohold otherwise
would allow a litigant to control judicial
proceedings bymakingcomplaints whenever
the litigant becomes dissatisfied with the
courseofthe proceedings, which would cause
chaos in the conduct ofthose proceedings and
in the administration of justice. [d. In
Advisory Opinion 87-292, the Commission
concluded that the mere fact that a litigant
claims to have previously filed a complaint
with the Commission does not cause the
judge'sdisqualification. InAdvisory Opinion
92-447, the Commission stated that it is "well­
settled that a judge is not disqualified from
sitting in a proceeding merely because the
judge has been made aware that one of the
parties hasfiled a complaint against thejudge
with the Judicial Inquiry Commission....
However, a judge must disqualify himself if
the judge determines that the filing of the
complaint has generated a personal bias or
prejudice in the judge against the party." See
also, Advisory Opinions 97-655 and 98-686.
The Commission has also recognized that
special circumstances might exist such that
the filing ofthe particular complaint actually
causes the judge's impartiality to be
reasonably questionable. See Advisory
Opinion 98-686 and opinions cited therein.
The judge in the present case has not been
affected by any complaints that the defendant
may have filed against him, and there are no
special circumstances related to a complaint
that would cause the judge's impartiality to
be reasonably questionable. Thus, it is the
opinion of the Commission that the judge is
not disqualified due to complaints that the
defendant may have filed against him.
The Commission has preViously concluded
that ajudge isdisqualified from hearingcases
in which former clients in unrelated matters
appear for a period oftwo years from the time
the representation ceases; after that time, a
number of factors should be considered in
determining whetherthejudge's impartiality
continues to be reasonably questionable.
Those factors include the nature ofthe prior
and present cases; the nature of the prior
representation; the frequency and duration
of, and the time that has passed since, the
prior representation. Advisory Opinion 99­

740. The Commission is of the opinion that
     the inquiring judge is not disqualified on
     account of haVing been employed as the
     prosecutor for theplaintiffcity almost twenty
     years ago.
     Under Canon 3C(1)(b), a judge is disqualified
     to hear cases where a lawyer with whom the
     judge previously practiced law served during
     such association as a lawyer in the matter in
     controversy. In cases in which a judge's
     former law partner is representing a party,
     the Commission has held that a judge should
     disqualify himselffrom any such proceeding
     if the former law partner represented that
     party in the matter in question during the
     period ofthe partnership, but that thejudge is
     not disqualified ifthe former law partner did
     not represent the party in the matter in
     controversy while he and the judge were
     partners. Advisory Opinion 95-546.
     The judge states that he has no knowledge of
     the investigation in 1999 that the defendant
     alleges. The recusal motion does not provide
     an information about it. On the basis ofthe
     facts presented, the Commission finds no
     reasonable basis to question the judge's
     impartiality in connection with the asserted
     investigation.
     ADVISORY OPINION 05-855
     PAGE 3
     The Commission has also considered the
     combination ofcircumstances alleged. It is of
     the opinion that the totality of the
     circumstances presented do not create a
     reasonable question as to the judge's
     impartiality and, thus, that those
     circumstances do not cause disqualification
     ofthe judge.
     REFERENCES
     Acromag-Viking v. Blalock, 420 So.2d 60
     (Ala. 1982).
     Advisory Opinions 87-292, 89-364, 90-391,91­
     460,92-447,95-546,97-655,98-686, and 99-740.
     Alabama Canons of Judicial Ethics, Canons
     3C(I) and 3C(I)(b).
     Matter ojShefjield, 465 So.2d 350 (Ala. 1984).
     This opinion is advisory only and is based on
     the specific facts and questions submitted by
     thejudge whorequested 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].