May a judge occasionally use the judge’s spouse as a substitute court reporter?

Plain-English summary

A circuit judge proposed occasionally using the judge's spouse, the other circuit judge's official reporter, as a substitute reporter in the judge's own proceedings. The Commission answered no.

The opinion quotes Ala. Code § 12-17-270, including the restriction on a reporter related to the trial judge and an exception for certain one-county circuits with at least three judges. It leaves to the attorney general whether district judges count toward that exception. Even if the arrangement were legally allowed, the Commission says an ethical conflict remains.

The judge might have to assess the validity of the spouse's reporting work, including a dispute about the record. The Commission says this could require disqualification under Canon 3C(1), including its spouse-interest provision. Party consent cannot waive the judge's duty here.

In practice

The opinion rejects even occasional substitute reporting by the judge’s spouse because the judge might later evaluate the spouse’s work. It does not decide the separate statutory question.

Common questions

Q: Does occasional service change the answer?

A: No. The Commission rejects even occasional substitute reporting.

Q: Did it decide whether district judges trigger the statutory exception?

A: No. It directs that question to the attorney general.

Q: Can the parties consent?

A: No. The opinion says consent cannot waive the judge’s duty here.

Background and rules framework

The opinion applies Canons 1, 2, and 3C(1) to conflicts when a judge’s spouse reports a proceeding before that judge. It discusses Canon 3B(4) and Ala. Code § 12-17-270 without deciding the exception.

Citations and references

Alabama Canons of Judicial Ethics:

• Canons 1, 2, 3B(4), 3C(1), 3C(1)(c), and 3C(1)(d)(ii)

Statute:

• Ala. Code § 12-17-270, court reporter appointments

Other opinions cited:

• Alabama Advisory Opinions 03-810, 94-513, and 88-328, reporter appointment questions
• Florida Advisory Opinions 2001-08 and 93-10, spouse’s reporting work

See also

• AL Judicial Ethics Op. 13-916: Former Bank Client as Party in an Unrelated Case
• AL Judicial Ethics Op. 12-914: Campaign Event for a Judicial Candidate

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 12-915

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: May 18, 2012 ADVISORY OPINION 12-915
JUDGE'S SPOUSE AS JUDGE'S SUBSTITUTE COURT REPORTER
ISSUE
In a one-county circuit served by two circuit judges and two districtjudges, maya circuit judge occasionally permit his or her spouse, the other circuit judge's official court reporter, to serve as the inquiring judge's substitute court reporter? Answer: No. FACTS The inquiring judge's circuit consists ofone county, which is served by one other circuit judge and two district judges, for a total offour judges. The district judges are assigned, as special circuit court judges, fifty percent ofthe domestic-relations cases and also the felony pleas. DISCUSSION Section 12-17-270, Code ofAlabama (1975), provides the following: Each ofthe judges ofthe circuit courts ... shall appoint a competent person to perform the duties ofofficial court reporter ofthe courts in the circuit over which said judge presides. No two or more judges shall appoint the same court reporter. The official court reporter shall be an officer ofthe court ... and shall hold office at the pleasure ofthe judge, who shall have power to remove said official reporter at any time. The court re.porter shall not be related to the trial judge within the fourth degree ofconsanguinity or affinity, and any appointment ofa court reporter so related to the trial judge within the prohibited degree shall be void. The provisions ofthis section shall not apply to circuits which consist ofonly one county and have three or more than three judges.C] (Emphasis added.) See Advisory Opinions 03-810 (a judge may not retain his spouse as his official court reporter after they marry because, even though her employment after they marry would not constitute an "appointment," § 12-17-270 explicitly proscribes service by the judge's wife as his court reporter); 94-513 (without discussing the application ofany canon, the Commission relied on § 12-17-270's one-county-three-judge exception in approving two circuit judges' occasional use of the third circuit judge's official court reporter even though the court reporter is related to the two judges); 88-328 (finding the particular relationship between the judge and the judge's substitute court reporter is not within the provisions of § 12-17-270). IThe question whether district judges may be included in the ''judges'' necessary to trigger § 12­ 17-270's exception is more properly addressed to the state attorney general. Advisory Opinion 81-124. See also Advisory Opinion 88-328. Advisory Opinion 12-915 Page 2 Even ifservice by the judge's spouse as the judge's court reporter would be pennissible under § 12-17-270 and despite the Commission's prior opinions noted above, the ethical implications of such service, even ifonly occasionally, raise significant concern. See Florida Advisory Opinion 2001-08 (it would be inappropriate for the judge's spouse, a court reporter and owner ofa court­ reporting company, to personally report or work on any case assigned to thejudge). Cf Canon 38(4) (ajudge should avoid nepotism in exercising his or her power ofappointment). A judge has a duty to eliminate or avoid any conflict ofinterest in performing his or her judicial duties. Canons I, 2, 3C(l). Ifthe judge's spouse serves as the judge's court reporter, the judge could be called upon to review the validity ofthe spouse's work product. See Florida Advisory Opinion 93-10 (the judge's spouse, a free-lance court reporter, should not report trials assigned to the judge because such could raise questions ofimpartiality ifthe judge had to review the spouse's work product and the parties disagreed on the accuracy ofthe record). Such conflict of interest would trigger the judge's disqualification under Canon 3C(l), including Canons 3C(l)(c) and 3C(l)(d)(ii) (the judge's spouse is known by the judge to have an interest that could be substantially affected by the outcome ofthe proceeding). See Advisory Opinion 91-421 (the professional reputation ofthe judge's relative is an interest that could be substantially affected). Therefore, a judge should prudently avoid any situation where his or her spouse would serve as court reporter in any proceeding assigned to that judge. Finally, the parties cannot waive the judge's duty here. Cf Canon 38(4), Commentary ("Consent by the parties ... does not relieve the judge ofthe obligation prescribed by this subsection [to avoid nepotism in the exercise ofhis or her appointment power]."). REFERENCES Advisory Opinions 03-810; 94-513; 91-421; 88-328; 81-124. Alabama Canons ofJudicial Ethics, Canons 1; 2; 38(4); 3C(I); 3C(l)(c); 3C(l)(d)(ii); Canon 38(4), Commentary. Ala. Code, §12-17-270 (1975). Florida Advisory Opinions 2001-08; 93-10.