May a drug court judge spend three hours each week on community service with current participants while avoiding case discussions?

Plain-English summary

A drug court judge proposed spending three hours a week for twelve weeks with current participants while supervising their community-service project. The judge intended to avoid discussion of their criminal cases. The Commission concluded the judge could not participate in that outside-court activity.

The opinion recognizes the close judicial interaction built into drug court but says that interaction must stay in judicial proceedings such as status hearings. Extensive extrajudicial contact risks ex parte communication under Canon 3A(4). Avoiding talk about the criminal cases does not cure the concern because the court also considers participants' conduct, progress, sanctions, and eligibility.

The Commission says the prolonged contact could independently raise a reasonable question about impartiality under Canon 3C(1), and could give the judge personal knowledge of disputed facts. Its conclusion confines the judge's interaction with participants to the judicial role and context.

In practice

The opinion rejects the proposed weekly community-service meetings with current participants, while recognizing judicial engagement during regular drug court proceedings.

Common questions

Q: Does avoiding criminal-case discussion permit the weekly meetings?

A: No. The Commission says the broader drug court decisions still make the extensive contact problematic.

Q: Where may the judge interact with participants?

A: The opinion confines the interaction to the judicial role and context, including regular status hearings.

Q: What recusal concern does the opinion identify?

A: Outside-court personal involvement can create a reasonable question about impartiality and may yield personal knowledge of disputed facts.

Background and rules framework

The Commission applies Canon 3A(4)’s ex parte rule, Canon 3C(1)’s disqualification standard, and Canon 5’s limits on outside activity to drug court participation.

Citations and references

Alabama Canons of Judicial Ethics:

• Canons 2A, 3, 3A(4), 3C(1), 3C(1)(a), 3C(1)(b), 5, and 5B

Statute:

• Ala. Code §§ 12-23A-1 to -13, Alabama Drug Offender Accountability Act

Cases:

• In re Sheffield, 465 So. 2d 350, 356 (Ala. 1984), impartiality test
• Ex parte Duncan, 638 So. 2d 1332, 1334 (Ala. 1994), objective question about impartiality

Other opinions cited:

• Alabama Advisory Opinion 97-681, separation from individual program supervision

See also

• AL Judicial Ethics Op. 12-909: Judge Acting in Child-Advocacy Fundraiser
• AL Judicial Ethics Op. 12-910: Judge’s Spouse as County Manager

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 12-908

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: October 14, 2011 ADVISORY OPINION 12-908
DRUG COURT: EXTRAJUDICIAL
ACTIVITY WITH DRUG COURT
PARTICIPANTS
ISSUE
Maya drug court judge meet with drug court
participants three hours one day each week for
twelve weeks as part of the participants'
community-service requirement, if the judge
intends to avoid any discussion of the
participants' criminal cases? Answer: No.
FACTS
The drug courthas instituted, as part ofthe drug
court requirements, a community-service
program that the judge supervises. For three
hours one day each week for twelve weeks, the
participants meet with the judge and several
other volunteers at the courthouse to fulfill their
community-service requirement. They learn a
useful skill and experience the importance of
"giving back" to the community. Their project
is accomplished as they sit together as a group
and engage in conversation with thejudge. The
judge is intent that the conversation during this
extrajudicial activity not relate to the
participants' criminal cases. The same judge
presides in the drug court hearings, i.e., the
scheduled appearance ofeachparticipantbefore
the court, during which the progress of that
participant is reviewed and discussed, and
assignments, verifications, or other requested
information is provided to the court by that
participant. Alabama Administrative Office of
Courts Drug Court Guidelines 2010, at 3-4.
DISCUSSION
In formulating the advice for this opinion, the
Commission acknowledges the tireless work
judges have contributed, with the best of
intentions, to incorporate the drug court
model into our State's judiciary as an
innovative option to address particular
problems and crimes. In the drug court
model, the judge presides in a nontraditional
style, e.g., less formal, more hands-on, more
flexible, with direct and engaging
communications with the participants.
Although this endeavor has sometimes been
through ''uncharted territories" and the
ethical implications unclear, this unique
nature ofdrug court requires that thejudge be
vigilant in complying with the Canons. Nat'l
Drug Court Initiative, The Drug Court
Judicial Benchbook 197 (Douglas B.
Marlowe & Judge William G. Meyer, 008.,
February 2011).
The Alabama Legislature established the
drug court model in the Alabama Drug
Offender Accountability Act ("the Act"), §§
l2-23A-l to -13, Code of Alabama (1975)
(effective July 1, 2010). It adopted the "Ten
KeyComponents ofDrug Court," formulated
by the United States Justice Department,
Office of Justice Programs. One of those
components isthedrugcourtjudge'songoing
judicial interaction with each drug court
participant. § l2-23A-4(t)(7). However, one
ofthe four aspects ofdrug court practice that
"raise special concerns for a judge who
would live up to the expectations of the
Socratic charge) and the Canons of Judicial
Conduct" is that "the intimacy that develops
between participants and members of the
1 "Four things belong to a judge: to
hear courteously, to answer wisely, to
consider soberly, and to decide impartially."
ADVISORY OPINION 12-908
PAGE 2
drug court team - especially judges - can
blur the boundaries between judicial action
and personal involvement." The Drug Court
Judicial Benchbook 197. Addressing this
concern is the cardinal limitation to the
judge's interaction with the participants: the
judge's interaction must be confined to the
context of judicial proceedings, i.e., the
regular status hearings. Bureau of Judicial
Assistance, U.S. Dep't of Justice, Defining
DrugCourts: TheKeyComponents 15 (photo.
reprint 2004)(1997).
The Drug Court Judicial Benchbook observes
the following in regard to the judge's
interaction with drug court participants:
Thejudge'spersonal engagementwith
each participant is the keystone ofthe
drug court model. "This active,
supervising relationship, maintained
throughout treatment, increases the
likelihood that a participant will
remain in treatment and improves the
chances for sobriety and law-abiding
behavior." This personal engagement
stands in tension with a common
vision of the judge as a detached
arbiter, figuratively blind to the parties
before the court. However common
this understanding of the judge, the
Canon requires not disengagement,
but impartiality. Thejudge may show
concern about a participant's progress
in recovery - even to the point of
celebrating a participant's success­
but the judge must extend the same
quality ofengagement and concern to
each participant. Such engagement
must be in the context of judicial
proceedings. In one case, a judge was
sanctioned for meeting privately and
individually (sometimes at their
homes) with probationers. [In re
Jones, 581 N.W. 2d 876, 876 (Neb.
1998).] The judge justified a portion
of his conduct on his sincere concern
for the welfare of addicts and their
progress. The Nebraska Supreme
Courtwas unpersuaded and found that
the judge's conduct constituted a
violation ofCanon 1(uphold integrity
and independence of judiciary) and
Canon 2, in that thejudge failed to act
in a manner that promotes public
confidence in the impartiality of the
judiciary. The drug court judge does
not function as a therapist and should
not seek to develop a therapeutic
relationship with individualdrug court
participants.
eM:. at 199-200) (emphasis added; footnotes
omitted). While outside drug court activities
such as picnics or other social contacts are not
strictly prohibited, a judge should be wary of
attending and participating in them. Id. at
200-01.
The Canons don't prohibit all non­
court contact with participants. For
instance, ifthere was a picnic and the
district attorney, defense counsel, law
enforcement, other members of the
drug court team, and drug court
participants were present and the
judge made a cameo appearance and
said a few words of encouragement,
such conduct would not violate the
Canons. The question the judge must
ask is whether the extrajudicial
activities the judge engages in would
castreasonabledoubt uponthejudge's
capacity to act impartially as a judge
ADVISORY OPINION 12-908
PAGE 3
or whether the activity would threaten
public confidence in the integrity of
the judiciary.
Id. (footnote omitted).
Afterconsideringthe circumstancespresented
by the inquiring judge, the Commission
advises that such extensive extrajudicial
exposure to the participants during their
community-service activity would violate
Canon 3A(4)'s prohibition against ex parte
communications: "Ajudge should ... ,except
as authorized by law, neither initiate nor
consider exparte communicationsconcerning
a pending . . . proceeding." See also id. (a
judge should accord to every person who is
legallyinterested in a proceeding, orhis or her
lawyer, full right to be heard according to
law). Although regulationofex partecontacts
in the drugcourtcontext is evolving, Alabama
has not adopted anychange to Canon 3A(4) to
incorporate the authorization bylaw ofany ex
parte communication in a problem-solving
court context. See § 12-23A-4(a)(l) and (2)
(the structure, method, and operation ofeach
drug court shall be created and operate
pursuant to the Act and in compliance with
rules promulgated by the Alabama Supreme
Court); § l2-23A-4G) (each drug court judge
may establish rules and may make special
orders and rules, as necessary, that do not
conflict with the Act or rules promulgated by
the Alabama Supreme Court). The informal
nature of drug court does not necessarily
remove "all ofthe evils that the rule against ex
partecommunicationwas designedto prevent:
bias, prejudice, coercion, and exploitation,"
James J. Alfmi et al., Judicial Conduct and
Ethics § 5.03A (4th
ed. 2007). Thus, the
limitations on ex parte contacts cannot be
relaxed. The Drug CourtJudicial Benchbook
198,203.
No matter how pure the intent of the
party who engages in such contacts,
without the benefit of a reply, a judge
is placed in the position of possibly
receiving inaccurate information or
being unduly swayed by unrebutted
remarks about the other side's case ....
We are not here concerned
with whether an ex parte
communication actually prejudices
one party at the expense of the other
[but with] their effect on the.
appearance of impartiality of the
tribunal. The impartiality of the trial
judge must be beyond question.
Rose v. State, 601 So.2d 1181, 1183 (Fla.
1992). The judge's impartiality may be
reasonably questioned when he or she has
greater knowledge of the participant's
circumstances than the attorneys or other
members of the drug court team. Such
question implicates Canon 2A (ajudge should
conduct himself or herself at all times in a .
mannerthatpromotespublic confidenceinthe
integrityandimpartialityofthejudiciary), and
Canon 3 (ajudge should perform the duties of
his or her office impartially).
The drug courtjudge's extensive extrajudicial
interaction with the participants - clearly
outside the parameters emphasized in The
Drug Court Judicial Benchbook - cannot be
neutralized by the assurance that the drug
court judge would not discuss any issues
regarding the participants' criminal cases.
The participants' criminal cases are not the
only justiciable issues before the drug court.
The Act provides that the drug court may
impose reasonable sanctions or incarcerate or
expel a participant from the program if the
court finds the participant is not performing
ADVISORY OPINION 12-908
PAGE 4
satisfactorily; is not benefitting from
education, treatment, or rehabilitation; has
engaged in conduct rendering him or her
unsuitable for the program; has otherwise
violated the terms and conditions of the
participant's agreementwiththe drugcourt; or
is for any reason unable to participate. § 12­
23A-4(d). Thejudge's extensive extrajudicial
exposure to the participants would surely
address any multitude of factors the court
would necessarilyconsider in executing his or
her constitutionally mandated rule as
independent arbiter and guardian of legal
rights.
Such extensive extrajudicial exposure to the
participants during the pendencyoftheircases
also raises questions of the judge's
disqualification pursuant to Canon 3C(l)'s
general provision that a judge should
disqualifyhimselforherselfin aproceedingin
which his or her impartialitymightreasonably
be questioned. The test under this canon is:
"Would a person ofordinary prudence in the
judge's position knowing all of the facts
known to the judge find that there is a
reasonable basis for questioning the judge's
impartiality?" In re Sheffield, 465 So.2d 350,
356 (Ala. 1984). The question is not whether
the judge is impartial in fact, but rather
whether another person, knowing all of the
circumstances, might reasonably question the
judge's impartiality. Ex parte Duncan, 638
So.2d 1332, 1334 (Ala. 1994). Such personal
involvement by the judge outside the judicial
context presents a reasonable question ofthe
judge's impartialitybecause thejudgeappears
to be personally involved with each
participant's success or failure and thus
biased. See also Canon 3C(l)(a) (a judge
should disqualify ifhe has a personal bias or
prejudice concerning a party).
Furthermore, ajudge shoulddisqualifyifhe or
she has personal knowledge of disputed
evidentiary facts concerning the proceeding,
Canon 3C(1)(a), or has been a material
witness concerning the matter in controversy,
Canon 3C(1)(b). The violation of these
provisions may be based on any independent
knowledge of disputed facts the judge may
have obtained from personal observation,
thereby, possiblyhaving to testifyorotherwise
placing his or her own credibility in issue. A
judge should disqualify from anyadjudication
arising from events he or she witnesses, such
as a defendant appearing in court intoxicated.
The Drug Court Judicial Benchbook 206.
Finally, the drug court judge should consider
Canon 5's directive that ajudgeregulate his or
herextrajudicial activitiesto minimize the risk
of conflict with the judicial duties. A judge
may not participate in civic and charitable
activities if they reflect adversely upon the
judge's impartiality or interfere with the
performance of judicial duties. Canon 5B.
See also Canon 5B(l) (a judge should not
serve if it is likely the organization or
institutionwill be engaged inproceedings that
wouldordinarilycomebeforethejudge orwill
be regularlyengaged inadversaryproceedings
in any court). Even when affiliation with an
entity that serves criminal defendants is
required, the judge may not be involved with
individual supervision of participants or
employees so the judge's judicial
responsibilities remain separate from his or
her services to the entity. See, e.g., Advisory
Opinion 97-681 (in serving on the board ofa
county work release program pursuant to a
statute specifically providing for two judge
members, a judge should not be involved in
supervision of program participants or
employees).
ADVISORY OPINION 12-908
PAGES
The Commission concludes the interaction
between the drug court participant and the
judge must be limited to the judicial role and
context.2
Thus, it is the Commission's
opinion the drug court judge may not engage
in the participants' extrajudicial community­
service requirement.
REFERENCES
Alabama Canons of Judicial Ethics, Canons
2A, 3, 3A(4), 3C(I), 3C(l)(a), 3C(I)(b), 5,
5B,5B(I).
Advisory Opinion 97-681.
Alabama Drug Offender Accountability Act,
§§ 12-23A-1 to-13,CodeofAlabama{l975).
In re Sheffield, 465 So.2d 350, 356 (Ala.
1984).
Ex parte Duncan, 638 So.2d 1332, 1334 (Ala.
1994).
Rose v. State, 601 So.2d 1181, 1183 (Fla.
1992).
21t is well documented that the most
importantinfluence inparticipants' drug court
experience is the personal attention from the
judge during status hearings. See Nat'l
Institute of Justice, U.S. Dep't of Justice,
Drug Courts: The Second Decade 11 (2006);
Rachel Porter, Michael Rempel, and Adam
Mansky, What Makes a Court Problem­
Solving? Universal Performance Indicators
for Problem-SolvingJustice. New York, NY:
Center for Court Innovation 22 (Feb. 2010).
Alabama Administrative Office of Courts
Drug Court Guidelines 2010.
James J. Alfmi et aI., Judicial Conduct and
Ethics § 5.03A (4th
ed. 2007).
Bureau ofJudicial Assistance, U.S. Dep't of
Justice, Defining Drug Courts: The Key
Components 15 (photo. reprint 2004)(1997).
Nat'l Drug Court Initiative, The Drug Court
Judicial Benchbook (Douglas B. Marlowe &
Judge William G. Meyer, eds., February
2011).
Nat'1 Institute of Justice, U.S. Dep't of
Justice, Drug Courts: The Second Decade 11
(2006).
Rachel Porter, Michael Rempel, and Adam
Mansky, What Makes a Court Problem­
Solving? Universal Performance Indicators
for Problem-SolvingJustice. New York, NY:
Center for Court Innovation 22 (Feb. 2010).
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 18 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.