Must a judge recuse from sheriff’s narcotics cases when the judge’s court attendant is married to an investigator?

Plain-English summary

A circuit judge’s court attendant was married to a narcotics investigator in the sheriff’s office. The Commission says the relationship does not disqualify the judge from every narcotics case investigated by that office. It does disqualify the judge whenever the spouse had any involvement in the particular investigation or litigation.

If the spouse was the lead investigator or case agent, the Commission finds a reasonable question about the judge’s impartiality under Canon 3C(1), and says that disqualification cannot be remitted. If the spouse had another role without general supervisory authority, the opinion says the disqualification is remittable under Canon 3D only with complete isolation of the court attendant. It finds isolation too burdensome on these facts and directs reassignment when the spouse participated in a case. It assumes the spouse has no general command role; the opinion says that kind of authority would require broader recusal.

The opinion addresses isolation of the attendant from cases involving the spouse, but finds complete isolation too burdensome for the nature and volume of these cases. It directs prompt disclosure of the relationship in sheriff’s narcotics cases and prompt determination of the spouse’s involvement before the judge proceeds.

In practice

The opinion allows assignment of a sheriff’s narcotics case only after distinguishing cases with no involvement by the attendant’s spouse from those with any involvement. It requires recusal in the latter category and explains why its complete-isolation option does not fit these facts.

Common questions

Q: Does the spouse’s employment alone disqualify the judge from every sheriff’s narcotics case?

A: No. The Commission rejects that blanket result on its assumed facts.

Q: What if the spouse was the lead investigator?

A: The judge is disqualified under Canon 3C(1), and the opinion says the parties cannot remit that ground.

Q: What if the spouse was involved in another way?

A: The opinion says this ground could be remitted under Canon 3D if the attendant were completely isolated from the case. It found that isolation too burdensome here and directed assignment to another judge when the spouse was involved.

Q: Did the Commission consider isolating the court attendant?

A: Yes. It concluded complete isolation was too burdensome for the volume and nature of these cases.

Background and rules framework

The opinion applies Canons 1, 2, and 3B(2) to a judge’s responsibility for confidential staff, then analyzes recusal under Canon 3C(1) and its family relationship provision. It distinguishes remittal under Canon 3D.

Citations and references

Alabama Canons of Judicial Ethics:

• Canons 1, 2, 2C, 3B(1), 3B(2), 3C(1), 3C(1)(d), and 3D

Other opinions cited:

• Alabama Advisory Opinions 01-778 and 97-668, confidential-employee relationships
• Alabama Advisory Opinions 07-877 and 02-792, case assignment and isolation

See also

• AL Judicial Ethics Op. 13-917: Former City Ties
• AL Judicial Ethics Op. 13-918: Former DHR Counsel

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 13-919

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: May 10, 2013 ADVISORY OPINION 13-919
DISQUALIFICATION: SPOUSE OF JUDGE'S COURT ATTENDANT IS SHERIFF'S INVESTIGATOR ISSUES Where the spouse of the inquiring judge's court attendant is a narcotics investigator in the sheriffs office, is the judge disqualified from (l) all narcotics cases investigated by the sheriffs office; (2) those cases in which the court attendant's spouse is the lead investigator ofthe investigation; and (3) those cases in which the court attendant's spouse is or may be a witness? Answers: (1) No. (2) and (3) Yes. FACTS The inquiring circuit judge presides in most of the drug and felony-DUI cases, the majority of which the sheriffs office has investigated. More than half ofthe judge's caseload is criminal. A court attendant is a confidential employee of the appointing judge, and that judge determines the duties the attendant is to perform. Rule 11, Ala. R. Jud. Admin. The inquiring judge's court attendant has primarily clerical and administrative duties regarding the judge's civil cases, except the assistant is assigned to the courtroom during the judge's criminal trials. The court attendant's spouse is a narcotics investigator in the sheriffs office and, on occasion, is the lead investigator or case agent. DISCUSSION It is presumed for purposes of this opinion that the judge does not personally have any disqualifying relationships, interests, knowledge, or biases. Canon 1 requires a judge to enforce high standards ofconduct to preserve the integrity and independence ofthe judiciary. Canon 2 requires the judge to avoid even the appearance ofimpropriety, conduct himselfor herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, and avoid conduct prejudicial to the administration ofjustice which brings the judicial office into disrepute. Canon 3B(2) provides, "A judge should require his staffand court officials subject to his direction and control to observe the standards offidelity and diligence that apply to him." Pursuant to Canon 3B(2), the Commission has applied the canons indirectly to a judge's confidential employee such as the judge's bailiff, secretary, judicial assistant, and law clerk. See Advisory Opinions 06-867; 97-638; 88-333; 85-231; 83-190. Thus, the same disqualification standards that apply to a judge should apply in situations involving the judge's confidential employee. Advisory Opinion 01-778. But see Advisory Opinion 00­ 764 (not in situations involving the judge's court reporter). Ifthe relationship ofthe judge's confidential employee would disqualify the employee (were he or she the judge), that relationship disqualifies the judge. Advisory Opinion 13-919 Page 2 Disqualification questions are governed by Canon 3C. Canon 3C(1) requires a judge to recuse from any case in which the judge's impartiality might be reasonably questioned. Canon 3C(l)(d) applies to relationships of the judge to spouses and relatives within the fourth degree. The pertinent provisions here are, as follows: (1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where: (d) He or his spouse, or a person within the fourth degree of relationship to either ofthem, or the spouse of such a person: (i) Is named a party to the proceeding, or an officer, director, or trustee of a party; (ii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; (iii) Is to the judge's knowledge likely to be a material witness in the proceeding. These provisions do not require the judge to disqualify from every narcotics case involving the sheriffs office merely because the spouse ofthe judge's court attendant is an investigator of that office. The judge is disqualified, however, ifhis court attendant's spouse has been involved in the case in any way at any point in the investigation or litigation.1 See Advisory Opinions 97-668; 86-286. Ifthe spouse of the judge's court attendant is the lead investigator or the case agent, the judge is disqualified under the general provision of Canon 3C(1), i.e., because the judge's impartiality might reasonably be questioned. See Advisory Opinions 99-735 (a reasonable question of the judge's impartiality arises where the judge's son is a juvenile police officer who filed the juvenile-court petition, i.e., the complaining police officer)2; 99-730 (where the judge's sister is the director of the work­ release program, the judge is disqualified from hearing a motion to set aside a 1 The Commission assumes the spouse ofthe judge's court attendant does not have general supervisory authority or a high rank in the sheriffs office. If that were the case, the judge would be disqualified from all cases involving any officer under the spouse's command. See Cynthia Gray, An Ethics Guide/or Judges & Their Families 51 (Am. Judicature Society 2001). See Advisory Opinion 97-668 (where an appellate judge's staff attorney is the spouse of a chief assistant district attorney who has supervisory authority over all other assistant district attorneys in that district attorney's office, the judge is disqualified in the appeal of all cases prosecuted by that district attorney's office). 2 Advisory Opinion 99-735 mistakenly advises disqualification under Canon 3C(1) is remittable. Advisory Opinion 13-919 Page 3 defendant's suspended sentence where that motion was initiated by a deficiency report prepared by the judge's sister; "a criminal defendant faced with the potential loss of liberty by a recommendation from the judge's sister might reasonably question the judge's impartiality even though the judge was not biased in fact,,).3 Such disqualification is not remittable under Canon 3D. Ifthe spouse ofthe judge's court attendant is not the lead investigator or the case agent and does not have general supervisory authority, but has been involved in any other way in the investigation or litigation ofthe case, the judge is disqualified, but that disqualification is remittable under Canon 3D. See Canon 3C(l)(d). Even where the parties remit disqualification, a judge must isolate the confidential employee from having any involvement whatsoever with any case in which the employee's relative was or is involved. Failure to do so would raise concerns under Canons 1 and 2. See also Canon 2C, which states: "A judge should not allow his ... relationships to influence his judicial conduct or judgment. ... [N]or should he convey or permit others to convey the impression that they are in a special position to influence him." For example, it would be highly improper for the relative ofthe judge's confidential employee to testify as a material witness in a trial that the judge's employee is assigned to attend. In effecting such isolation, a judge should "take every precaution" to "make sure that not even a possibility exists of the judge's employee becoming involved in any way with any matter involving the employee's relative." Advisory Opinion 97-668 (emphasis added). See also Advisory Opinion 97-638 (isolation includes prohibiting the employee from discussing any aspect ofthe case with the judge); New York Advisory Opinion 99-72 (absolute isolation includes insulating the employee from all contact in matters in which his or her spouse is involved, e.g., not opening the mail or answering telephone calls). Under the circumstances here, however, isolation ofthe court attendant from all cases in which the employee's spouse is or was involved is too burdensome under the rigid requirements ofcomplete isolation. Isolation is an option where the judge would be disqualified from only an occasional case. Advisory Opinion 02-792. See also Advisory Opinion 07-877. Considering the judge presides in a majority ofthe drug cases and the majority of those cases originates in or involves the sheriffs office, the judge would be disqualified more frequently that an occasional case. More importantly, however, even if isolation were possible, the Commission advises that, due to the nature and volume of cases involved, a perception ofpartiality would persist, id., and the concerns of Canons 1 and 2 would not be assuaged. Thus, in every narcotics case involving the sheriffs office, the judge should advise the attorneys ofthe potentially disqualifying spousal relationship ofthe judge's employee as soon as practicable after the judge is assigned the case. (The circuit clerk could send notification when the case is assigned.) Then, forthwith, the judge should ascertain 3 Advisory Opinion 99-730 mistakenly advises disqualification under Canon 3C(1) is remittable. Advisory Opinion 13-919 Page 4 whether the spouse of the judge's court attendant is or was involved in any aspect ofthe investigation or litigation. In facilitating that determination, the judge may inquire on the record of each case or, in a writing applicable to all narcotics cases, direct the district attorney to provide such information. Ifthe court attendant's spouse is or was involved in any manner, the judge is disqualified, and the case is to be assigned to another judge. Advisory Opinion 07-877. Early determination is imperative for compliance with Canons 1, 2, and 3B(l) (a judge should diligently discharge his or her administrative responsibilities and facilitate the performance ofthe administrative responsibilities of other judges and court officials). The judge may also consider directing the district attorney to "flag" those cases in which the court attendant's spouse has had any involvement - before the case is assigned to the inquiring judge. Then, the circuit clerk can assign those cases to another judge, thereby bypassing the inquiring judge. If the judge continues to accept assignments ofnarcotics cases in which the spouse ofthe judge's court attendant is not involved, the judge may direct the sheriffto ensure the spouse avoids even casual conversations with other members of the sheriff's office about cases that will come before the judge. This will further serve to protect the judge from inadvertently presiding over cases in which the spouse ofthe judge's court attendant has some involvement. In addition, the judge should instruct the court attendant to refrain from discussing court matters with his or her spouse. REFERENCES Alabama Canons of Judicial Ethics, Canons 1, 2, 2C, 3B(l), 3B(2), 3C, 3C(l), 3C(l)(d), 3D Advisory Opinions 07-877; 06-867; 02-792; 01-778; 00-764; 99-735; 99-730; 97-668; 97-638; 88-333; 86-286; 85-231; 83-190 Alabama Rules of Judicial Administration, Rule 11 New York Advisory Opinion 99-72 See Cynthia Gray, An Ethics Guide for Judges & Their Families 51 (Am. Judicature Society 2001) 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 ofthe 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.