Must a judge recuse when a party’s complaint against the judge is under full investigation during the pending case?

Plain-English summary

A party filed multiple complaints against the judge during pending litigation. The Judicial Inquiry Commission was conducting a full investigation, interviewing witnesses and issuing subpoenas. The judge received investigation materials under the Commission's notification rules and had filed affidavits from attorneys, including opposing counsel.

The Commission says the mere filing of a complaint does not necessarily disqualify a judge: a litigant cannot manufacture bias to select a different judge. Here, however, the full investigation and mandatory disclosure of its materials gave the judge extensive knowledge of witnesses and extrajudicial information while the case remained pending. Some materials could reach the judge without either litigant having an opportunity to respond.

Under these circumstances, the Commission concludes that impartiality could reasonably be questioned and an appearance of impropriety had arisen. It confines its answer to ethical implications, leaving a specific recusal motion to the judge and court process.

In practice

The opinion distinguishes a filed complaint alone from a full investigation that exposes the presiding judge to case-related materials outside the proceeding.

Common questions

Q: Does any complaint by a litigant require recusal?

A: No. The Commission says filing alone does not necessarily disqualify the judge.

Q: What changes the result here?

A: The ongoing full investigation gives the judge extensive materials and possible extrajudicial facts during the pending case.

Q: Did the Commission decide the party’s recusal motion?

A: No. It limits its answer to ethics and leaves the motion to the judicial process.

Background and rules framework

The opinion applies Canon 3C(1)’s reasonable-impartiality standard, Canon 3C(1)(a) on personal knowledge and bias, and Canon 3A(4) on a party’s right to be heard. It discusses notice under Judicial Inquiry Commission Rules 6 and 7.

Citations and references

Alabama Canons of Judicial Ethics:

• Canons 2A, 3A(4), 3C(1), and 3C(1)(a)

Other authorities cited:

• Judicial Inquiry Commission Rules of Procedure 6C, 6D, 6E, and 7C, notice of investigations

Other opinions cited:

• Alabama Advisory Opinions 97-655 and 07-876, complaint alone and judge selection
• Alabama Advisory Opinions 09-902 and 09-903, limits on Commission advice

See also

• AL Judicial Ethics Op. 09-902: Recusal After a Judge’s Disciplinary Case
• AL Judicial Ethics Op. 09-903: Judge’s Bank Accounts, Loan, and Bank Relative

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 11-904

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: March 11, 2011 ADVISORY OPINION 11-904
DISQUALIFICATION: JUDGE'S
KNOWLEDGE OF COMMISSION'S ON­
GOING INVESTIGATION OF A
COMPLAINT FILED BY A PARTY DURING
PENDENCY OF CASE BEFORE JUDGE.
ISSUE
Is a judge disqualified because a party in a case
has filed a complaint with the Judicial Inquiry
Commission against the judge and the
Commission is conducting a full investigation
during the pendency of the underlying case?
Yes.
FACTS
In a motion to recuse, the party-complainant
asserts that the judge should recuse because the
party-complainant has filed, with the Judicial
Inquiry Commission, multiple complaints
against the judge within the context of the
pending litigation. The Commission is
investigating those complaints, including
interviewing and subpoenaing witnesses to
testifY before the Commission. In response to
the Commission's investigation, the judge has
solicited and filed affidavits oftwelve attorneys
who practice before the judge, including the
attorney representing the opposing party in the
pending case.
DISCUSSION
Foremost, the decision on a party's motion to
recuse is specifically for the judge to detennine
as a matter of fact and law. Advisory Opinion
09-902. Although legal error and judicial
misconduct are not mutually exclusive, and acts
done in the exercise ofjudicial discretion may,
in some circumstances, also constitute
misconduct, the Commission will not invade
the province ofthe trial court to decide issues
presented. Advisory Opinion 09-903.
Recognizing its responsibility to preserve the
independence of the judiciary while also
striving to fulfill its constitutional duty to
promote high standards of judicial conduct,
the Commission restricts this opinion to the
ethical implications regarding the issues
presented to the Commission.
It is well settled that a litigant cannot create,
by his own actions, an artificial appearance of
bias and prejudice, thereby attempting to
control the issue of recusal of a particular
judge. See Advisory Opinion 07-876, and
authorities cited therein. Accordingly, neither
the mere fact of a litigant's filing of a
complaint against a judge nor the nature of
that complaint necessarilyrequires thejudge's
disqualification. Advisory Opinion 97-655.
The Commission, however, has generally
recognized that extraordinary circumstances
may exist such that a litigant's filing of a
complaint actually calls into reasonable
question the judge's impartiality and, thus,
disqualifies that judge pursuant to Canon
3C(1). Advisory Opinions 05-855, 04-844,
and 98-686, and authorities cited therein.
Such circumstances may arise from, among
other considerations, (1) the nature and
seriousness of the allegations of the
complaint; (2) the possibility of an outcome
adverse to the judge; and (3) the extent ofthe
Commission's investigationofthat complaint.
In regard to the nature and seriousness of the
allegations ofthe complaint, the judge should
disqualifY if the party's complaint alleges
specific facts regarding matters extrajudicial
to the pending proceeding and if the
ADVISORY OPINION 11-904
Page 2
complaint, even ifbelieved by the judge to be
untrue or erroneous, contains specific facts
that would cause a reasonable person to
question the judge's impartiality or create an
appearance of impropriety to a reasonable
person. Arizona Advisory Opinion 98-2. See
also North Dakota Advisory Opinion 93-1 (a
judge should recuse if the complaint alleges
specific facts that facially present a
meritorious claim ofjudicial bias arising from
an extrajudicial source and a reasonable
person considering all the relevant facts and
circumstances would question the judge's
impartiality). Thejudge should also consider
the possibility of factual issues involving his
or her credibility. United States Advisory
Opinion 103 (2002).
The third consideration - the extent of the
Commission's investigation - must be
assessed within the framework of the
notification requirements pronounced by the
Alabama Supreme Court in the Rules of
Procedure of the Judicial Inquiry
Commission. 1 Under Rule 6C, the
IThere are three stages of the
Commission's consideration of a complaint,
activated only by a majority vote of the
Commission. First, the Commission merely
reviews the complaint to determine whether it
is sufficiently specific to inform the
Commission ofthe cause ofthe complaint. If
there are sufficient facts to determine that the
complaint does not present any ethical or
misconduct concerns, the Commission
summarily dismisses the complaint. The vast
majority ofcomplaints are dismissed after this
review. The second stage is an initial or
preliminary inquiry to ascertain whether
Commission must serve on the judge a copy
ofthe complaint within 14 days ofits decision
to conduct some investigation of that
complaint. At that time, the Commission
must also serve "all other documents or other
materials of any nature whatsoever
constituting, supporting, or accompanying the
complaint, or accumulated bythe commission
before such service upon thejudge." Rule 6C.
Thereafter, every 42 days, the Commission
must serve on the judge "all materials of any
nature whatsoever not already served upon
him or her tending to establish that the
conduct either did or did not occur or that the
investigation is or is not still appropriate."
Rule 6D. See also Rule 7C, which requires
that, when the Commission issues a subpoena,
the Commission must serve a copy on the
judge before or simultaneously with service
on the witness. Although Rule 6E provides
three narrow circumstances in which
notification may be delayed (none of which
apply here), the Commission does not have
any discretion to refrain from notifying a
judge ofa complaint regarding a pending case
until after the pending matter is concluded.
The Commission must abide by Rules 6 and 7
despite the competing public interests that are
thwarted by the judge's knowledge of every
facet of and fact elicited during the
Commission's investigation. Two such public
interests especially material here are
protection of the judiciary's independence
additional facts exist to raise an ethical
concern or warrant further inquiry. If this
inquiry produces sufficient information to
proceed, the Commission conducts a full
investigation - the third stage.
ADVISORY OPINION 11-904
Page 3
and avoidance ofallowing a litigant to force a
recusal.2
Pursuant to these mandatory provisions for
disclosure, the inquiring judge learns of the
complaint and all materials gathered and
subpoenas issued during the Commission's
investigation - while the underlying case is
pending before the judge. This extensive
knowledge of the investigation raises three
concerns from the reasonable-person
perspective: (1) whether, with this extensive
knowledge ofthe witnesses and facts gathered
in the Commission's investigation, the judge
can avoid a personal bias or prejudice against
the party-complainant or witnesses before the
Commission, see Canon 3C(1)(a); (2)
whether this extensive knowledge would
cause a reasonable person to question the
judge's impartiality in the pending litigation
or create an appearance of impropriety to the
reasonable person, Canon 3C(l) and Canon
2, respectively; and (3) whetherthis extensive
knowledge ofthe circumstances and results of
the Commission's investigation constitutes
personal knowledge of disputed evidentiary
facts, Canon 3C(I)(a), or is akin to ex parte
communications under Canon 3A(4), thereby
creating an appearance of impropriety,
proscribed by Canon 2.
2Byits most recent amendment to Rule
6, effective May 1, 2010, the Alabama
Supreme Court limited the requirement of
notification to only those complaints the
Commission investigates. In deleting the
requirement of serving the frivolous
complaints, the Court implicitly recognized
the competing public interests and chose to
buttress the policy against "judge shopping."
The Commission's investigative materials
often include extrajudicial facts,
circumstances, and opinions regarding the
underlying case(s). Neither the party­
complainant nor his opponent is necessarily
aware of these matters or of the fact that the
judge is receiving this extrajudicial
information. For example, the judge may
provide opposing counsel the verbatim
allegations being investigated by the
Commission; that attorney may provide the
Commission an affidavit addressing each
allegation; and, thereafter, the Commission
must serve that attorney's affidavit on the
judge - an affidavit that, point by point,
defends the actions ofthejudge in the pending
case before the judge, but of which the party­
complainant has no knowledge.
Such exchange and such information gained
during the pendency of the underlying case
easily present an appearance of impropriety
and reasonable question ofimpartiality,under
Canon 2 and Canon 3C(1), respectively.
Furthermore, such disclosure of extrajudicial
information to the judge triggers Canon
3A(4)'s requirement that the judge accord all
parties full right to be heard. See, e.g.,
Advisory Opinion 82-135 (a judge may not
solicit a confidential report from the victim
regarding the crime unless it is made a part of
the court file or the pre-sentence report).
Moreover, such knowledge imparted to the
judge, but not necessarily shared by both
parties, may constitute personal knowledge of
disputed evidentiary facts, thereby requiring
the judge to disqualifY pursuant to Canon
3C(l)(a). There is little or no argument that
such disclosure by the Commission of its
investigatory materials to the judge while the
litigation is pending compromises the
ADVISORY OPINION 11-904
Page 4
principles of an independent and honorable
judiciary, which is indispensable to justice.3
Although the court in Rose v. State, 601 So.2d
1181, 1183 (Fla. 1992), observed the
following in the context of unauthorized ex
parte communications, the Commission finds
the following apropos here:
Nothing is more dangerous and
destructive of the impartiality of the
judiciary than a one-sided
communication between ajudge and a
single litigant. Even the most vigilant
and conscientious of judges may be
subtly influenced by such contacts.
No matter how pure the intent of the
party who engages in such contacts,
without the benefit ofa reply, ajudge
is placed in the position of possibly
receiving inaccurate information or
being unduly swayed by unrebutted
remarks about the other side's case ....
Weare not here concerned
with whether an ex parte
communication actually prejudices
one party at the expense of the other.
The most insidious result of ex parte
communications is their effect on the
appearance of impartiality of the
tribunal. The impartiality of the trial
judge must be beyond question.
3In fact, a judge, requested by the
Commission to respond to specific allegations
in a complaint while the underlying case was
pending, asserted that such response would be
improper because the judge would be
commenting on the factual allegations of a
pending case, and such response would
constitute consideration ofpotential evidence
outside ofthe trial.
Under the Canons, a judge has a continuing
duty to disqualify at any stage of the
proceedings in which his or her impartiality
might reasonablybe questioned or in which an
appearance ofimpropriety arises. Under the
circumstances known to the inquiring judge
and the Commission, including the extent of
the Commission's investigation and the
judge's correlating exposure to extrajudicial
information or gain of personal knowledge,
the inquiringjudge'simpartialityis reasonably
questioned, and a reasonable appearance of
impropriety has arisen.
REFERENCES
Alabama Canons of Judicial Ethics, Canons
2A, 3A(4), 3C(1), and 3C(1)(a).
Alabama Advisory Opinions 09-903, 09-902,
07-876, 05-855, 04-844, 98-686, 97-655,
and 82-135.
Rules of Procedure of the Judicial Inquiry
Commission, Rules 6, 6C, 6D, 6E, 7, and 7C.
Rose v. State, 601 So.2d 1181 (Fla. 1992).
United States Advisory Opinion 103 (2002).
Arizona Advisory Opinion 98-2.
North Dakota Advisory Opinion 93-1.
This opinion is advisory only and is based on the
specific facts and questions submitted by thejudge who
requested the opinion pursuant to Rule 18 of the Rules
ofProcedure of the Judicial Inquiry Commission. For
further information, you may contact the Judicial
InquiryCommission, P. O. Box 303400, Montgomery,
Alabama36l30-3400; tel.: (334) 242-4089; fax: (334)
353-4043; E-mail: [email protected].