May a district judge serve as a citizen member of Alabama’s counseling licensure and disciplinary board?

Plain-English summary

A district judge considered appointment as a citizen member of the Alabama Board of Examiners in Counseling. The Commission concluded that the Canons prohibited the proposed service.

Canon 5G discouraged governmental posts involving fact and policy outside improvement of the law or judicial system, although the opinion said that canon did not impose an absolute bar by itself. Here the board’s licensing and disciplinary functions belonged to the executive branch. The Commission said taking those responsibilities would impair the perceived independence of the courts under Canon 1 and create a high potential for conflict, controversy, and interference with judicial duties.

The opinion also identified constitutional questions about holding another office of public trust or profit. The Commission expressly declined to decide those legal questions because its advisory authority covered the Canons, not constitutional or statutory interpretation.

In practice

The conclusion concerns citizen membership on this governmental licensing and disciplinary board. The Commission separated its Canons analysis from the unresolved constitutional status of the appointment.

Common questions

Q: Did Canon 5G alone absolutely forbid every governmental board post?

A: No. The Commission said such service was disfavored but not always absolutely prohibited under that canon.

Q: Why did the proposed board appointment fail?

A: The opinion identified executive-branch licensing and disciplinary responsibilities, judicial independence, and interference with judicial duties.

Q: Did the Commission decide whether the seat was an office of public trust?

A: No. It said constitutional and statutory questions were outside its advisory authority.

Background and rules framework

The opinion applies Canons 1, 2A, 3, 5, and 5G to an executive-branch appointment. It cites Alabama constitutional limits on dual offices while declining to construe them.

Citations and references

Alabama Canons of Judicial Ethics:

• Canons 1, 2A, 3, 5, and 5G

Statutes and constitutional provisions:

• Ala. Const. art. VI, § 147(b), other office of public trust
• Ala. Const. art. XVII, § 280, dual offices of profit
• Ala. Code §§ 34-8A-1 to -24 (1975), counseling board

Other opinions cited:

• Alabama Advisory Opinion 97-635, a citizen review panel
• Alabama Advisory Opinion 97-681, a commission with statutorily required judges

See also

• AL Judicial Ethics Op. 07-887: Guest of Honor at a Charity Fundraiser
• AL Judicial Ethics Op. 07-888: Judge’s Religious Magazine Column

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 07-886

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: July 13, 2007 ADVISORY OPINION 07-886
EXTRA-JUDICIAL ACTIVITIES
APPOINTMENT TO A GOVERNMENTAL
PROFESSIONAL LICENSURE AND
DISCIPLINARY BOARD
ISSUE
Should a districtjudge serve as a member ofa
professional licensure and disciplinaryboard?
Answer: No.
FACTS
A districtjudge is considering an appointment
as a citizen member to the Alabama Board of
Examiners in Counseling, which functions
pursuant to Ala. Code §§ 34-8A-I to -24
(1975).
DISCUSSION
Canon 5, which pertains to extra-judicial
activities, requires a judge to "regulate [her]
extra-judicial activities to minimizetherisk of
conflict with [her] judicial duties." Canon 5G
specifically addresses extra-judicial
appointments to governmental boards, stating,
in part, "It is desirable that a judge should not
accept appointment to a governmental
committee, commission, or otherposition that
is concerned with issues of fact or policy on
matters other than the improvement of the
law, the legal system, or the administration of
justice or unless required by law." The
activities of a professional licensure and
disciplinary board or commission, such as the
Board ofExaminers in Counseling, fall within
the disfavored category, i.e, involving issues
of fact and policy that do not concern the
improvement ofthe law, the legal system, or
the administration ofjustice.
Pursuant to Canon 5G, the Commission has
opined that a judge should not serve on state
boards and commissions concerned, as here,
with matters ofpublic, non-legal benefit. See
Advisory Opinion 97-635 (a Regional Citizen
Review Panel under the Alabama Department
of Human Resources), citing as examples,
Advisory Opinions 85-237 (Alabama State
Fair Authority); 77-17 (city board of
education); 76-11 (countyboard ofeducation).
See, e.g., Advisory Opinions 99-734 (city
board of education); 97-663 (Board of
Directors of the West Jefferson Amusement
and Public Park Authority); 85-240 (County
Districting Commission). Cf Advisory
Opinions 06-870 (membership on the State
Commission on National and Community
Service is discouraged, but not prohibited, as
long as such service complies with Canons
2A, 3, and 5F); 97-681 (Canons do not
prohibit membership on government
commission where law providing for the
commission specifically requires that
membership includes two judges; legislature
made public policy decision that judges are
necessarymembers and implicitlydetermined
that program relates to the administration of
justice).
Although the Commission has consistently
held that service in a governmental position
that is concerned with issues other than the
improvement of the law, the legal system, or
the administration of justice should be
avoided, such service is not absolutely
prohibited under Canon 5G.
Thus, the judge must scrutinize the
prospective appointment under other canons.
Canon 2A requires a judge to "respect and
comply with the law." One such law is Ala.
ADVISORY OPINION 07-886
Page 2
Const. Art. VI, § 147(b), which states, "No
judge, except ajudge ofprobate court, shall ...
hold any other office of public trust ...." If
membership on the Board ofExaminers is an
"office ofpublic trust," a judge would violate
Canon 2A byaccepting an appointment to that
board. See Advisory Opinions 06-870; 99­
734; 85-240; 85-237. An additional concern
is whether such membership is an "office of
profit," for a person shall not "hold two
offices of profit at one and the same time
under this state." Ala. Const. Art. XVII, §
280; Ala. Code § 36-2-1(b) (1975). "The
constitutional prohibition of § 280 ... is
directed against the holding of two
inconsistent offices, which would result in the
same individual's exercising power and
discharging duties pertaining to different
branches of the government." Johnson v.
Board of Control of the Employees'
Retirement System ofAlabama, 740 So. 2d
999, 1008 (Ala. 1999). See Advisory
Opinions 87-308; 77-17. See also Van
Antwerp v. Hogan, 283 Ala. 445, 453, 218
So.2d 258, 265 (Ala. 1969) (being ineligible
to hold any office ofprofit or trust under this
state other than a judicial office, a judge will
be removed from a second office of profit or
trust, which he attempts to hold eitherby color
ofelection or appointment).
The Commission is not authorized to give
advisory opinions concerning the application
of constitutional or statutory law; its opinion
authority extends only to application of the
Alabama Canons of Judicial Ethics. It is the
Commission's understandingthat the question
whether membership on the Board of
Examiners constitutes an "office of public
trust" oran "office ofprofit" maybepresented
to the Attorney General for an opinion.
Even if membership on a professional
licensure and disciplinary board is legally
permissible, however, a judge's exercising
power and discharging duties pertaining to a
different branch ofgovernment would violate
Canon 1's requirement that a judge uphold the
integrity and independence of the judiciary.
The licensure and disciplinaryresponsibilities
ofthe Board of Examiners of Counseling are
clear responsibilities ofthe executive branch.
Ajudge's acceptance ofthose responsibilities
would affect the public's perception of the
independence ofthe courts from the executive
branch of state government.
The judge must further discern whether the
board's activities and responsibilities violate
the mandate ofCanon 2A that ajudge"should
conduct [her]selfat all times in a manner that
promotes public confidence in the integrity
and impartiality ofthejudiciary" as well as of
Canon 3 that she perform the duties of her
office impartially. "[N]on-judicial service
tends to erode the appearance of impartiality
which is essential to judging itsel£" Jeffery
M. Shaman et aI., Judicial ConductandEthics
§ 9.04 (2000).
In addition, a judge must consider the
provision of Canon 3 that the judicial
activities ofa judge take precedence over her
other activities. See also Model Code of
Judicial Conduct, Canon 4C(2) (1990),
Commentary ("The appropriateness of
accepting extra-judicial assignments must be
assessed in light of the demands on judicial
resources created by crowded dockets and the
need to protect the courts from involvement in
extra-judicial matters that may prove to be
controversial."). Extra-judicial activity on a
professional licensure and disciplinary board
ADVISORY OPINION 07-886
Page 3
could burden judicial caseloads or embroil a
judge in matters of controversy. The
Commission finds that the potential for
conflict and interference with the proper
administration ofjustice is high.
It is the opinion of the Commission that the
Canons prohibit a judge from serving as a
citizen member on the Alabama Board of
Examiners in Counseling
REFERENCES
Advisory Opinions 06-870, 99-734, 97-681,
97-663, 97-635, 87-308, 85-240, 85-237, 77­
17, and 76-11.
Alabama Canons of Judicial Ethics, Canons
1, 2A, 3, 5, 5F, and 50.
Ala. Const. art. VI, § 147(b), and art. XVII, §
280.
Ala. Code 1975, §§ 34-8A-l to -24, and § 36­
2-1(b).
Johnson v. Board of Control of the
Employees' Retirement System ofAlabama,
740 So. 2d 999, 1008 (Ala. 1999).
Van Antwerp v. Hogan, 283 Ala. 445, 453,
218 So.2d 258, 265 (Ala. 1969).
Commentary, Model Code of Conduct,
Section 4C(2) (1990).
Jeffery M. Shaman et aI., Judicial Conduct
and Ethics § 9.04 (2000).
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].