Must a circuit judge recuse from sheriff-related cases when the judge’s spouse is the county manager?

Plain-English summary

A circuit judge's spouse served as a county manager and chief executive officer. The judge asked about criminal and civil proceedings involving sheriff's deputies, search warrant applications, and cases in which the county itself was a party.

The Commission says the judge is disqualified when the county is a party because the spouse is an officer of that party under Canon 3C(1)(d)(i). That disqualification can be remitted under Canon 3D. For the listed sheriff-related matters, the spouse's job alone does not require recusal: the county manager has no direct oversight of the sheriff's department under the facts supplied. The judge must still examine bias, disputed-fact knowledge, the spouse's interests or witness role, and any direct involvement that could reasonably call impartiality into question.

The Commission says the judge should disclose the spouse's employment in cases with potential sheriff-deputy witnesses. It describes disclosure in open court, by written notice, or through a statement filed with the clerk.

In practice

The opinion separates county-party cases from the described sheriff-related cases. It requires a case-specific Canon 3C check and calls for disclosure of the spouse’s county-manager role.

Common questions

Q: What if the county is a party?

A: The judge is disqualified because the spouse is an officer of that party; the opinion says this ground is remittable.

Q: Are all cases with sheriff’s deputies excluded?

A: No. The spouse’s county-manager role alone does not require recusal on the stated facts.

Q: Should the judge disclose the relationship?

A: Yes. The Commission says the judge should disclose the spouse’s employment in cases with potential sheriff-deputy witnesses.

Background and rules framework

The opinion applies Canon 3C(1)(d)(i) to a county-party case and the broader Canon 3C(1) standards to sheriff-related cases. It discusses remittal under Canon 3D and disclosure under Canon 3E.

Citations and references

Alabama Canons of Judicial Ethics:

• Canons 3C(1), 3C(1)(a), 3C(1)(c), 3C(1)(d)(i), 3C(1)(d)(ii), 3C(1)(d)(iii), 3D, and 3E

Cases:

• Ex parte Sumter County, 953 So. 2d 1235, 1238 (Ala. 2006), county authority over sheriff’s employees

Other opinions cited:

• Alabama Advisory Opinions 04-845 and 99-741, spouse’s executive office and sheriff or police proceedings

See also

• AL Judicial Ethics Op. 12-908: Drug Court Judge’s Community-Service Contact
• AL Judicial Ethics Op. 12-909: Judge Acting in Child-Advocacy Fundraiser

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 12-910

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: November 18, 2011 ADVISORY OPINION 12-910
DISQUALIFICATION -- CIRCUIT JUDGE'S
SPOUSE IS THE COUNTYMANAGER AND
CHIEF EXECUTIVE OFFICER
ISSUES

1. Is a circuit judge whose spouse is county
   manager of a county within the geographic
   jurisdiction of the judge's court disqualified
   from hearing any ofthe following matters?
   (a) Criminal jury trials in which
   witnesses may include sheriff's
   deputies from the county.
   (b) Youthful offender applications and
   youthful offender trials in which
   witnesses may include sheriff's
   deputies from the county.
   (c) Motions to suppress or motions to
   exclude evidence where witnesses
   may include sheriff's deputies from
   the county.
   (d) Applications for search warrants by
   sheriff's deputies from the county.
   (e) Civil trials in which witnesses may
   include-sheriff'sdeputies from the
   county.
   (f) Trials in which the defendant is
   charged with assault of a sheriff's
   deputy from the county.
   (g) A case in which the county is a
   party.
   Answer: The judge is disqualified where the
   county is a party, but not disqualified in the
   othermatters unless a ground ofdisqualification
   listed in a subsection ofCanon 3C(l) exists, or
   additional circumstances otherwise create a
   reasonable question as to the judge's
   impartiality.
   II. Does the judge have a duty to disclose the
   employmentofthejudge's spouse in cases in
   which sheriff's deputies are potential
   witnesses?
   Answer: The judge should disclose the
   relationship in all such cases; this may be
   done in open court, by written notice to the
   parties, or by filing the information with the
   clerk ofthe court.
   FACTS
   A circuit judge's spouse has been appointed
   as the county manager by the five county
   commissioners of a county that includes the
   geographicjurisdiction ofthe court on which
   the judge sits. Under the statute that created
   the position of county manager, the county
   manager is the "chief executive officer" of
   the county, is employed "at-will," and "may
   be terminated only upon a vote offour-fifths
   of the county commission." The statute, in
   specifying the duties ofthe county manager,
   provides that the manager does not have
   appointing authority for or exercise direct
   oversight--o-f---elected --officials -and--their
   departments or the county attorneys and their
   staff. It further provides that the manager
   does not manage the county functions and
   operations "that are assigned to the county
   attorneys or committed by general law to
   elected officers ofthe county."
   DISCUSSION
   1.
   In regard to situation (g), the judge is
   disqualified in any case in which the county
   is a party. Canon 3C(l)(d)(i) expressly
   ADVISORY OPINION 12-910
   PAGE 2
   provides that a judge is disqualified in a
   proceeding in which thejudge's spouse is "an
   officer, director, or trustee of a party." See,
   e.g., Advisory Opinions 99-724 (judge whose
   spouse is director ofthe county Department of
   Human Resources office is disqualified in
   cases in which DHR is a party); 97-634 (judge
   with close relative on a city council is
   disqualified in cases in which that city is a
   party); 88-342 (same); 83-186 (judge with
   close relative who is a countycommissioneris
   disqualified in cases in which county
   commissioners, thecountycommission, orthe
   county is a party). This disqualification is
   remittable pursuant to Canon 3D.
   In regard to sheriff applications for search
   warrants (situation (d», the Commission
   advised, in Advisory Opinion 99-741, that a
   district judge whose spouse is mayor is
   disqualified where the municipal police ex
   parte apply for a search warrant because "a
   criminal defendant in such a situation might
   reasonablyquestion the impartiality ofajudge
   whose spouse is the mayor, even though the
   judge is not biased in fact." Id. (citing Canon
   3C(1». However, that opinion is not
   controlling here because the relationship
   between-thecountymanager and the sherifts
   department is fundamentally different that the
   one between the mayor and the municipal
   police department.
   Pursuant to the statute creating the position of
   county manager in question, the county
   commission and thus the county manager do
   not have any direct control over the sheriffs
   department because the county sheriff is an
   executive officer of the State pursuant to
   Article V, § 112, Constitution of Alabama
   (1901). See, e.g., Ex parte Sumter County ,
   953 So. 2d 1235, 1238 (Ala. 2006) (a county
   commission does nothavethe authority, orthe
   responsibility, to promulgate policies and
   work rules for employeesofthe sheriffsoffice
   or have authority over law-enforcement
   policies or the training, supervision, hiring, or
   firing of the sheriffs employees). Even the
   fact that the county commission provides
   funding for the sheriffs department does not
   impute control over the department. See
   Streater v. Woodward, 7 F. Supp. 2d 1215
   (N.D. Ala. 1998). Because the sheriffs
   department has virtual autonomy from the
   judge's spouse's position ofcounty manager,
   a reasonable question ofimpartiality does not
   arise where the sheriffs personnel ex parte
   apply for a search warrant before that judge.
   In addressing the inquiring judge's questions
   where sheriffs deputies are witnesses in
   criminal jury trials, youthful offender
   applications, youthful offendertrials, motions
   to suppress, and motions to exclude evidence
   (situations (a) - (c» and where the defendant
   is charged with assaulting a sheriff's deputy
   (situations (f), the Commission reiterates the
   advice in Advisory Opinion 04-845. There,
   the Commission addressedthe samequestions
   except that, in that opinion, thejudge's spouse
   was the ~kcted__maYJlrOitLcity_withinthe
   jurisdiction of the judge's court and the
   questions were in the context of cases
   involving municipal police officers. The
   Commission advised that the mere fact the
   judge's spouse is mayor does not create a
   reasonable question as to the judge's
   impartiality in the situations posed.
   Although a mayor is elected and ordinarily is
   not subject to removal during the current term
   of office whereas the county manager
   answers to the five county commissioners and
   is subject to termination at any time, the
   ADVISORY OPINION 12-910
   PAGE 3
   Commission finds that the circumstances here
   do not necessitate advice different from that
   given in Advisory Opinion 04-845. Under the
   enumerated circumstances here «a) - (c) and
   (f)), the judge's spouse would not actively be
   directing the actions of the sheriffs
   department in the proceeding, see Advisory
   Opinion 89-353, or otherwise have some
   personal or direct involvement or interest in
   the case, see Advisory Opinions 86-286, 88­
   345, and 97-632. Moreover, it is unlikely that
   a reasonable person would believe that the
   judge would have a propensityto rule in favor
   of the sheriffs department witnesses merely
   because the judge's spouse is the county
   manager. Cf State v. Logan, 689 P.2d 778
   (Kan. 1984) (a judge's propensity to convict
   criminal defendants does not increase where
   the judge's son worked for the prosecutor's
   office, but was not even remotely involved in
   the prosecution). We find the same rationale
   applies to situation (e), civil trials in which
   witnesses may include sheriffs deputies from
   the county.
   Thus, for all situations posed, except where
   the county is a party, the inquiring judge
   should survey the facts of each case to
   detennine-the-application of the following .
   provisions:
   • Canon 3C(1)(a): personal bias or
   prejudice concerning a party, as a
   result ofthe spouse's position;
   • Canon 3C(1)(a): personal knowledge
   of disputed evidentiary facts, as a
   result ofthe spouse's position;
   • Canon 3C(1)(c) and (d)(ii): the spouse
   to the judge's knowledge has a
   financial interest in the subject matter
   in controversy or in a party to the
   proceedings, or any other interest that
   could be substantially affected by the
   outcome of the proceedings (e.g.,
   affect the spouse's salary or
   employment, see Advisory Opinions
   97-632 and 86-286, but see Advisory
   Opinion 92-462 (the mere fact the
   judge's son is employed by the
   defendantsdoes not involve an interest
   that could be substantially affected by
   the outcome ofthe case) (citingPestar
   v. Remington Arms Company, Inc. ,
   443 N.Y.S.2d 987,988 (1981));
   • Canon 3C(1)(d)(iii): the spouse to the
   judge's knowledge is likely to be a
   material witness; and
   • Canon 3C(1)(a): the judge's
   impartiality is otherwise reasonably
   questionable because the judge's
   spouse is the county manager. For
   example, if the judge's spouse has a
   personal interest ordirect involvement
   in a particular case, the judge is
   disqualified to hear that case.
   Advisory Opinion 04-845 and
   opinions cited therein.
   In conclusion, it is the opinion of the
   Commission that !pemere fact that thejudge's
   spouse is the county manager and chief
   executive officer ofthe countydoes not create
   a reasonable question as to the judge's
   impartiality in proceedings of the type
   described in the statement of the situations
   presented, except in the case in which the
   county is a party. However, if any of the
   provisions of Canon 3C(1) apply or if the
   judge's spousehas a personal interest or direct
   involvement in a particular case, the judge is
   disqualified to hear the case.
   ADVISORY OPINION 12-910
   PAGE 4
   II.
   The Canons do not expressly require
   disclosure of interests or relationships the
   judge does not deem disqualifying. Canon 3E
   provides that a judge who does not deem
   himself or herself disqualified may make
   information concerning interests or
   relationships available, either by filing that
   infonnation in the office of the clerk of the
   judge's court or by causing notice to be given
   to the parties to the proceeding. Under Canon
   3E, it is the duty of the parties to familiarize
   themselves with any materials available for
   inspection in the clerk's office.
   As in Advisory Opinion 04-845, it is the
   opinion ofthe Commission that the inquiring
   judge should disclose the spouse's
   employment. Disclosure would prevent any
   appearance of impropriety. It also puts the
   parties on notice so they can bring to the
   judge's attention any additional circumstances.
   Relationship infonnation mayconvenientlybe
   disclosed by filing a statement with the court
   clerk, or the judge may give notice in open
   court or cause written notice to be given to the
   parties.
   REFERENCES
   Alabama Canons of Judicial Ethics, Canons
   3C(1), 3C(1)(a), 3C(1)(c), 3C(I)(d)(i)
   3C(1)(d)(ii), 3C(I)(d)(iii), 3D, and 3E.
   Advisory Opinions 04-845, 99-741, 99-724,
   97-634,97-632,92-462,89-353,88-345,88­
   342, 86-286, and 83-186.
   Article V, § 112, Constitution of Alabama
   (1901).
   Ex parte Sumter County, 953 So. 2d 1235,
   1238 (Ala. 2006).
   King v. Colbert County, 620 So. 2d 623 (Ala.
   1993).
   Streater v. Woodward , 7 F. Supp. 2d 1215
   (N.D. Ala. 1998).
   State v. Logan, 689 P.2d 778 (Kan. 1984).
   Pestar v. RemingtonArms Company, Inc., 443
   N.Y.S.2d 987, 988 (1981).
   This opinion is advisory only and is based on
   the specific facts and questions submitted by
   the judge who requested the opinion pursuant
   to Rwe 18 of the Rules of Procedure of the
   Judicial Inquiry Commission. For further
   infonnation, you may contact the Judicial
   Inquiry Commission, P. O. Box 303400,
   Montgomery, Alabama 36130-3400; tel.:
   (334) 242-4089; fax: (334) 353-4043.