Must a judge recuse when a brother-in-law on a municipal commission will testify in a case involving the municipality?

Plain-English summary

A judge's brother-in-law served on a municipal historic-preservation commission and expected to testify in a boundary-line dispute involving the municipality and a council member who had helped appoint him. The Commission said the relative's board membership alone did not reasonably call the judge's impartiality into question.

The judge would be disqualified if the judge had bias concerning a party or personal knowledge of disputed evidentiary facts; if the relative had an interest that could be substantially affected by the outcome or was likely to be a material witness; or if the relative's other involvement reasonably cast doubt on impartiality. The opinion defines a material witness as one testifying to a fact affecting the merits when no other witness might testify to that fact.

Canon 3C(1)(d) disqualification may be remitted through Canon 3D; the other listed grounds may not. If none applies, the Commission encourages disclosure of the family relationship and describes methods of notice under Canon 3E.

In practice

For the submitted dispute, the opinion makes recusal depend on the relative's role and the other listed circumstances. It encourages disclosure if the judge finds no disqualifying circumstance.

Common questions

Q: Does service on the municipal commission alone disqualify the judge?

A: No. The Commission says that fact alone is insufficient even when the municipality is a party or otherwise involved.

Q: When does the relative's testimony require recusal?

A: When the judge knows the relative is likely to be a material witness. The opinion defines materiality by testimony on a fact affecting the merits for which no other witness might testify.

Q: Can disqualification be remitted?

A: The opinion says Canon 3C(1)(d) disqualification may be remitted under Canon 3D, but the other circumstances it lists may not.

Background and rules framework

The opinion applies Canon 3C(1)'s impartiality standard, including bias and disputed-fact knowledge under Canon 3C(1)(a) and a relative's affected interest or material testimony under Canon 3C(1)(d). It also discusses remittal under Canon 3D and disclosure under Canon 3E.

Citations and references

Alabama Canons of Judicial Ethics:

• Canon 3C(1)
• Canon 3C(1)(a)
• Canon 3C(1)(d)
• Canon 3C(1)(d)(ii)
• Canon 3C(1)(d)(iii)
• Canon 3D
• Canon 3E

Other opinions cited:

• Alabama Advisory Opinions 92-426, 88-345, and 88-322, relative's employment and the identity of a party
• Alabama Advisory Opinions 86-258, 86-286, and 99-735, material witnesses

See also

• AL Judicial Ethics Op. 86-258: Relative as Expert Witness
• AL Judicial Ethics Op. 88-322: Teacher Spouse and Board Cases

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 18-936

Original opinion text

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

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: February 15, 2018 ADVISORY OPINION 18-936

DISQUALIFICATION: JUDGE’S BROTHER-IN-LAW ON MUNICIPAL HISTORIC- PRESERVATION COMMISSION IS A WITNESS IN CIVIL CASE IN WHICH PARTIES INCLUDE MUNICIPALITY AND CITY COUNCIL MEMBER INSTRUMENTAL IN RELATIVE’S APPOINTMENT

ISSUE

Is a judge disqualified from a lawsuit in which his/her brother-in-law, who serves on a municipality’s historic-preservation commission, will be witness and parties include the municipality and a city council member who was instrumental in appointing the judge’s relative to the commission? Answer: It depends on whether the brother-in-law is a material witness or whether any of other pertinent circumstances are present.

FACTS

The judge’s brother-in-law is a member of the municipality’s historic preservation commission, a board created and appointed by the municipality’s city council. The municipality and a council member, who was instrumental in the brother-in-law’s appointment to the commission, are parties to a lawsuit concerning a boundary-line dispute between adjoining property owners, one of whom is the city council member. The judge’s brother-in-law will testify about matters pertinent to the proceeding.

DISCUSSION

A judge should disqualify him/herself in a proceeding in which his/her impartiality might reasonably be questioned. Canon 3C(1). However, the mere fact that the judge’s brother-in-law serves on a municipality board created and appointed by the city council is insufficient to create a reasonable question as to the judge’s impartiality in a case in which the municipality is a party or is otherwise involved. Cf. Advisory Opinions 92-426 (a judge is not disqualified to preside in a case in which the city is named as a party merely because the judge’s spouse is employed as the library director for the city-county public library and is paid as a city employee); 88-345 (the mere fact that the judge’s spouse is employed by Alabama Department of Human Resources does not disqualify the judge from presiding in cases in which DHR is a party or is otherwise involved); 88-322 (the fact that a judge’s spouse is a teacher employed by a city board of education does not per se cause the judge’s disqualification in all proceedings in which the city board of education is a party).

The judge, however, would be disqualified in any of the following circumstances:

Canon 3C(1)(a) The judge has a personal bias or prejudice concerning a party.

The judge has personal knowledge of disputed evidentiary facts concerning the proceeding. ADVISORY OPINION 18-936 PAGE 2

Canon 3C(1)(d)(ii) The judge’s relative is known by the judge to have an interest that could be substantially affected by the outcome of the case.

Canon 3C(1)(d)(iii)To the judge’s knowledge, the judge’s relative is likely to be a material witness in the proceeding. E.g., Advisory Opinion 86-258 (relative is an expert witness). A judge should seek to be informed as to whether his/her relative will appear as a material witnesses. Advisory Opinion 86-286. A person is not a material witness unless (1) he/she will be testifying on a fact affecting the merits of the cause, and (2) there is no other witness who might testify to such fact. Advisory Opinion 99-735.

Canon 3C(1) The judge’s relative has some other personal involvement in the matter in controversy that casts the judge’s impartiality into reasonable doubt.

Disqualification under Canon 3C(1)(d) may be remitted under the procedure in Canon 3D; disqualification under the other circumstances may not be remitted.

If the judge determines that none of the above circumstances are present, the Commission encourages the judge to disclose his/her familial relationship to the parties. Although the Canons do not expressly require disclosure of interests or relationships the judge does not deem disqualifying, 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. Under Canon 3E, relationship information may conveniently be 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)(d); 3C(1)(d)(ii); 3C(1)(d)(iii); 3D; 3E.

Alabama Advisory Opinions 99-735; 92-426; 88-345; 88-322; 86-286; 86-258.

This opinion is advisory only and is based on the specific facts and question 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.