May a judge privately consult legislators about controversial reform in an area of the judge’s legal expertise?

Plain-English summary

A judge was asked to meet privately with legislators and submit written suggestions about a controversial proposed change in an area of law in which the judge had expertise. The Commission permits the proposed consultation under Canon 4, subject to its restrictions. It does not address lobbying based on the judge's private interests.

The opinion explains that Alabama Canon 4B allows a judge to consult an executive or legislative official on matters concerning the law, the legal system, and the administration of justice. The activity must not interfere with judicial duties or cast doubt on the judge's ability to decide issues impartially. The judge must not comment on a pending or impending case, and participation must draw on judicial expertise rather than a personal social or political agenda.

The Commission also requires compliance with other canons concerning independence, office prestige, and political activity. Its answer rests on the specific facts submitted.

In practice

For the proposed consultation, the opinion permits private meetings and written suggestions grounded in judicial expertise while applying the stated judicial-duty and impartiality limits.

Common questions

Q: Does Canon 4B allow private legislative consultation?

A: Yes. The opinion says Alabama Canon 4B permits it on matters concerning the law, legal system, and administration of justice.

Q: May the judge discuss a pending case?

A: No. The opinion applies Canon 3A(6) to pending and impending cases.

Q: Did the Commission address the judge’s personal legislative interests?

A: No. It expressly excludes activity affecting the judge as a private citizen.

Background and rules framework

The opinion applies Alabama Canon 4, particularly Canons 4A and 4B, together with Canons 1, 2, 3, and 7. It distinguishes judicial expertise about law reform from advocacy that could suggest partiality.

Citations and references

Alabama Canons of Judicial Ethics:

• Canons 1, 2, 2A, 2C, 3, 3A(6), 4, 4A, 4B, 7, and 7A(3)

Other opinions cited:

• Alabama Advisory Opinions 91-436 and 99-732, legislative activity and impartiality
• Florida Advisory Opinion 98-13 and Utah Informal Advisory Opinion 01-1, legislative consultation

See also

• AL Judicial Ethics Op. 12-912: Grant Recommendation for Court Visitation Services
• AL Judicial Ethics Op. 12-913: Mock Trial at a Law Firm’s Private Seminar

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 12-911

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: December 9,2011 ADVISORY OPINION 12-911
QUASI-JUDICIAL ACTIVITY:
CONSULTATION WITH LEGISLATORS
ISSUE
May a judge, who is widely respected for his
expertise in a particular area ofthe law, consult
with State legislators about controversial
proposed legislation regarding that particular
area ofthe law? ANSWER: Yes, provided he
follow the canons' restrictions.
FACTS
A judge, who is widely respected for his
expertise in a particular area of the law, has
been asked to consult with State legislators
about revising the current law in that area. This
consultation would include meeting privately
with various legislators and also providing
written suggestions regarding the proposed
legislation. This proposed legislation has been
controversial in the past.I
DISCUSSION
Becausejudges are specially learned in the law,
Canon 4 encourages judges to engage in
activities that improve the law, the legal system,
and the administration of justice, i.e., quasi­
judicial activities. See a!soCommentary, Canon

4. However, not every activitythat involves the
   law, the legal system, and the administration of
   justice is considered a permissible Canon 4
   activity. Canon 4 activities are explicitly
   limited in two regards: (1) the activity must not
   interferewith theproperperformanceofjudicial
   duties, and (2) it must not cast doubt on the
   This advisory opinion does not address the
   legislative activities of a judge who has an
   interest as an individual, i.e., a private citizen,
   that would be affected by proposed legislation.
   judge's capacity to decide impartiality any
   issue that may be presented to him in the
   performance of his judicial duties.
   Moreover, the activities must be permissible
   under the other canons.
   Subject to the noted exceptions, Canon 4A
   permits ajudgeto speak, write, lecture, teach,
   and participate in other activities concerning
   the law, the legal system, and the
   administration ofjustice. More specifically,
   the Commentaryto Canon 4C states ajudge's
   permissible activities include contributing to
   the revision of substantive and procedural
   law and the improvement of criminal and
   juvenile justice. The Commentary, in fact,
   encourages judges to participate in such
   activities to the extent his timepermits, either
   independently or through a bar association,
   judicial conference, or other organization
   dedicated to the improvement ofthe law.
   [Thus], a judge may write or lecture
   on a legal issue, analyzing the present
   law and its history, its virtues and its
   shortcomings; he may commend the
   present law or propose legal reform
   withoutcompromisinghis capacityto
   decide impartially the very issue on
   which he has spoken or written.
   There is a significant difference
   between the statement, "I will grant
   all divorce actions that come before
   me - whatever the strength of the
   evidence to support the statutory
   ground for divorce - because I
   believe that persons who no longer
   live in harmony should be divorced,"
   and the statement, "I believe that
   limited statutory grounds for divorce
   are notin thepublic interest. The law
   should be changed to allow persons
   who no longer live in harmony to
   I
   ADVISORY OPINION 12-911
   PAGE 2
   obtain a divorce." The latter does not
   compromise a judge's capacity to
   apply impartially the law as written,
   although it clearly states his position
   about improvements in the law.
   E. WayneThode,Reporter's Notes to [1972]
   Code ofJudicial Conduct 74 (ABA 1973).
   In addition, Canon 4B pennits a judge to
   appear at a public hearing before an executive
   or legislative body or official on matters
   concerning the law, the legal system, and the
   administration ofjustice. Unlike Canon 4B of
   the 1972 Model Code, upon which Alabama's
   canons are based, Alabama's Canon 4B also
   pennits private consultation on any matter
   concerning the law, the legal system, and the
   administration ofjustice. It provides, in part,
   that a judge may "otherwise consult with an
   executive or legislative body or official on
   matters concerning the law, the legal system,
   and the administration ofjustice:' Moreover,
   the plain language of the canons does not
   prohibit a judge from acting on his own
   initiative with regard to legislativeissues. See
   Florida Advisory Opinion 98-13; Utah
   Informal Advisory Opinion 01-1.
   Thus, the general rule is that Canon 4 pennits
   ajudgeto communicate with a member ofthe
   legislature on matters concerning the law, the
   legal system, and the administration ofjustice
   - with three requirements. The first, as noted
   above, is that the activities do not interfere
   with theproperperfonnanceofjudicial duties.
   See also Canon 3 (ajudge should perfonn the
   duties ofthe judicial office diligently, and the
   judicial activities take precedence over the
   judge's other activities). Therefore, thejudge
   should be available to perform his judicial
   duties. See Utah Informal Advisory Opinion
   01-1 (cautioning against becoming too active
   inlegislativematters, i.e., spendingsignificant
   time speaking out on legislative issues during
   the legislative session could be perceived as
   allowing that activity to interfere with the
   judicial duties and as attempting to exploit the
   judicial office). In addition, the judge must
   avoid anylegislativeactivities or involvement
   that would likely lead to disqualification from
   cases assigned to him.
   The second requirement for a judge's
   legislative activities to be permissible under
   Canon 4 is that the activities must not cast
   doubt on the judge's capacity to decide
   impartially any issue that may be presented to
   him in the perfonnance ofhis judicial duties.
   Advisory Opinion 91-436 (a judge must
   "scrupulouslyhonor the admonition ofCanon
   4 that thejudge 'not cast doubt on his capacity
   to decide impartially any issue that may come
   before him"'). The Commission advises the
   judge to considerthe following in scrutinizing
   his proposed involvement in legislative
   activities:
   • The avoidance ofthe appearance of
   partiality is as important as avoiding
   partiality in fact.
   • The judge, in conferring with
   legislators, must not appear to
   substitute his concept ofwhat the law
   ought to be for what the law actually
   is, and he must express himself in a
   manner that promotes public
   confidence in his integrity and
   impartiality as ajudge. See In re
   Gridley, 417 So.2d 950, 954 (Fla.
   1982) (cautioning judges against
   "indiscriminately voicing their
   objection to the law lest they be
   ADVISORY OPINION 12-911
   PAGE 3
   misunderstood by the public as being
   unwilling to enforce the law as
   written, thereby undermining public
   confidence in the integrity and
   impartiality of the judiciary"). Thus,
   there shouldbe no doubtthat thejudge
   considers himself duty-bound to
   follow the law and would do so
   although he advocates law refonn.
   • The judge must abstain from
   commenting on a pending or
   impendingcase in anycourt, including
   how he would rule on pendingmatters
   or matters that may come before him.
   Canon 3A(6). See Advisory Opinion
   99-732 (a judge's lobbying for
   legislationmandatingtheplacementof
   seatbeltson school buses is prohibited
   because related issues would likely
   come before the judge and, thus, such
   lobbying could present a reasonable
   question ofhis ability to decide those
   issues impartially).
   • The judge's participation should be
   sought only because of his judicial
   expertise. See U.S. Advisory Opinion
   93 (the phrase "improve the law" is
   described as ''being limited to the
   kinds ofmatters a judge, by virtue of
   [the judge's] judicial experience, is
   uniquely qualified to address"; if a
   judge's participation is sought for
   some reason other than his judicial
   expertise, the activity is less likely to
   be a permissible Canon 4 activity);
   Ohio Advisory Opinion 2002-3 (a
   judge may discuss, with a legislative
   his support or opposition to the
   proposed amendment is based on his
   understanding ofthe potential impact
   on the courts, the law, the legal
   system, and the administration of
   justice). Accordingly, the subject
   matter reasonably may be considered
   to merit the attention and comment of
   a judge as a judge, and not merely as
   an individual. Id.
   • The judge's legislative activity must
   not merely utilize the law or the legal
   system as a means to achieve an
   underlying social, political, or civic
   objective. U.S. Advisory Opinion 93.
   It is with ajudge's expertise in the law
   and particularlythe specific area ofthe
   law, and not a personal agenda, by
   which he mayconsult with legislators.
   Such participation, i.e., based on
   expertise rather than personal agenda,
   is particularly necessary regarding
   controversial legislation not directly
   related to the administration ofjustice.
   Forexample, where ajudge testifies in
   favor of legislation to decriminalize
   drug possession, it could be argued
   that this is not an issue with respect to
   which ajudge's view as ajudge seems
   particularlyrelevant, and it may create
   the perception that ifthejudge feels so
   strongly about the law as to lobby the
   legislature for itsrepeal, he maynot be
   able to uphold the law impartially in
   his courtroom. James J. Alfini et aI.,
   Judicial Conduct and Ethics § 9.03B
   (4th ed. 2007).
   body or official, a proposed • A judge's legislative activity that
   constitutional amendment regarding arises from his participationin a group
   drug treatment in lieu ofincarceration; that engages in advocacy towards the
   ADVISORY OPINION 12-911
   PAGE 4
   adoption, repeal, or modification of
   particular substantive laws or towards the
   courts' use and application ofexisting laws in
   a particular manner could create the danger
   that his ability to act impartially may be cast
   in doubt. A.B.A., Annotated Model Code of
   Judicial Ethics 264 (2004) (citing California
   Judges Ass'n, Comm. on Judicial Ethics, Op.
   46 (1997)). See also Advisory Opinion 99­
   732 ("[w]henever a group engages in
   advocacy regarding substantive legal issues,
   participation by a judge should be carefully
   scrutinized" pursuant to a numberofspecified
   factors). Whether a judge may participate in
   a group turns not only on whether that group
   is devoted to the improvement of the law or
   the administration of justice, but also on
   whether participation would lead to an
   appearance of partiality in cases coming
   before thatjudge. See, e.g., Advisory Opinion
   99-732 (a judge should not join with a
   citizens' group lobbying for placement ofseat
   belts on school buses because such activity
   constitutes a ''narrow advocacy function" and
   thus would call into question the judge's
   ability to decide impartially issues that come
   before him).
   Finally, as noted above, thejudge's legislative
   consultation must be permissible under the
   other canons. Such proposed activity must be
   considered in light ofthe following canons: I
   (a judge should uphold the integrity and
   independence of the judiciary); 2 (a judge
   should avoid impropnety or its appearance);
   2A (ajudge should act at all times in a manner
   ,­
   that promotes public confidence in the
   integrity and impartialityofthejudiciary); 2C
   (a judge should not lend the prestige of the
   judicial office to advance the private interests
   ofothers, i.e., exploiting thejudge'sposition);
   3 (a judge should perform the duties of the
   judicial office impartially); and 7 (although a
   judge may engage in activity on behalf of
   measures to improvethe law, the legal system,
   or the administration ofjustice, Canon 7A(3),
   a judge should refrain from political activity
   inappropriate to judicial office). See also
   Advisory Opinion 03-819 (under Canon 7A, a
   judge must conduct himselfin such a manner
   as to prevent political considerations,
   entanglements, or influences from becoming
   involved in, or from appearing to be involved
   in, any judicial decision or the judicial
   process).
   Under the specific facts known to the
   Commission, the inquiring judge may,
   pursuant to Canon 4, participate in legislative
   consultation regardingtheparticularproposed
   legislation.
   REFERENCES
   AlabamaCanons ofJudicial Ethics, Canons 1,
   2, 2A, 2C, 3, 3A(6), 4, 4A, 4B, 7, 7A, and
   7A(3)
   Commentary, Canons 4 and 4C
   Advisory Opinions 03-819, 99-732, and 91­
   436
   In re Gridley, 417 So. 2d 950,954 (Fla. 1982)
   u.s. Advisory Opinion 93
   California Judges Ass'n, Comm. on Judicial
   Ethics, Op. 46 (1997)
   Florida Advisory Opinion 98-13
   Ohio Advisory Opinion 2002-3
   ADVISORY OPINION 12-911
   PAGE 5
   Utah Infonnal Advisory Opinion 01-1
   A.B.A., Annotated Model Code ofJudicial
   Ethics 264 (2004)
   A.B.A., Code ofJudicial Conduct 74 (1972)
   E. Wayne Thode, Reporter's Notes to [1972J
   Code ofJudicial Conduct 74 (A.B.A. 1973)
   James J. Alfini et al., Judicial Conduct and
   Ethics § 9.03B (4th ed. 2007)
   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 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.