May a full-time referee who regularly sits as a special circuit judge continue while running for the state legislature?

Plain-English summary

A full-time senior trial referee who served as a special circuit judge planned to run for the House of Representatives. The Commission concluded that the referee could not continue the judicial role while becoming a candidate for that nonjudicial office.

Because sitting as a special circuit judge was a necessary part of the position, the Commission treated the referee as a judge pro tempore under the Compliance section. That status had exemptions from several Canons, but not Canon 7.

Canon 7A(2) required a judge to resign on becoming a candidate in an election for nonjudicial office, with exceptions stated for judicial offices and a state constitutional convention or commission. The proposed legislative candidacy was outside those exceptions.

In practice

The holding rests on the referee’s regular special-judge duties, which brought the judicial political-activity rule into the analysis.

Common questions

Q: Why did Canon 7 apply to a referee?

A: The referee regularly sat as a special circuit judge and therefore acted as a judge pro tempore.

Q: Was a judge pro tempore exempt from Canon 7?

A: No. The Compliance section listed other exemptions but left Canon 7 applicable.

Q: Which candidacy triggered resignation?

A: The proposed House of Representatives election was for nonjudicial office.

Background and rules framework

Compliance § B defines a judge pro tempore and its limited exemptions. Canon 7A(2) requires resignation when a judge seeks a nonjudicial elected office, subject to stated exceptions.

Citations and references

Alabama Canons of Judicial Ethics:

• Canon 7A(2) and Compliance § B

See also

• AL Judicial Ethics Op. 06-862: Active-Retired Judge’s Work and Fundraising
• AL Judicial Ethics Op. 06-864: Judge’s Tenant Provides a Sentencing Course

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 06-863

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: MARCH 17, 2006 ADVISORY OPINION 06-863
REFEREE SERVING AS SPECIAL
CIRCUIT JUDGE AS CANDIDATE FOR
NON-JUDICIAL OFFICE
ISSUE
Can a full time referee who sits as a special
circuit judge continue in his position while
seeking election to a non-judicial office?
Answer: No, under the facts presented the
referee's duties include sitting as a judge pro
tempore who must resign his office to seek
election to a non-judicial position.
FACTS
A full time senior trial referee is contemplating
seeking election to a seat in the House of
Representatives. The referee also sits as a
special circuit judge and as practical matter this
use of the referee has become necessary to the
position.
DISCUSSION
A full time senior trial referee who also sits as
a special circuit judge is governed by the
Alabama Canons of Judicial Ethics. Under
these facts, by serving as a special circuit judge,
the referee serves as a judge pro tempore as
defined in Section B of the Compliance section
of the Alabama Canons of Judicial Ethics. In
pertinent part the Compliance section provides
as follows.
Judges whose duties are not exclusively
judicial or who do not serve on a full­
time basis cannot be subjected to a
strict, literal compliance with the
Canons of Judicial Ethics.
B. JUDGE PRO TEMPORE. A judge pro
tempore is a person who is appointed
temporarily to act as a judge.
(I) While acting as such, ajudge pro
tempore is not required to comply
with Canon 5C, D, E, F, and G and
Canon 6C.
Canon 7 concerning political activity is not
one of the Canons from which the judge pro
tempore is exempt.
Canon 7.A(2) provides
A judge shall resign his or her office
when the judge becomes a candidate
either in a political plimary or in a
general election for non judicial
office, except that the judge may
continue to hold judicial office while
being a candidate for election to any
judicial office or whiIe being a
candidate for election to a state
constitutional convention or
commission.
Clearly, under this provision, a candidate for
judicial office must resign his or her position
as a judge pro tempore.
REFERENCES
Alabama Canons of Judicial Ethics, Canon
7A(2) and Compliance with the Canons of
Judicial Ethics.
111is opinion is advisory only and is has(,'d on the
specific facts and questions suhmitted hy the judge
who requested the opinion pursuant to Rule 17 ofthe
Rules of Procedure of the Judicial Inquiry
Commission. For further infomlatioll, you may
contact the Judicial Inquiry Commission, P. O. Box
303400, Montgomery, Alahama 36130-3400; leI.:
(334) 242-4089; fax: (334) 353-4043; E-mail:
jic(d'alalinc.net.