May an Alabama criminal judge support judicial candidates and district attorney or sheriff candidates?

Plain-English summary

A criminal judge asked about supporting candidates for circuit judge, district attorney, and sheriff. The judicial candidates included an assistant district attorney practicing in the judge's circuit, a court referee, and a former law partner. The judge heard only criminal cases.

The Commission reads Canon 7A(1) as distinguishing judicial candidates from candidates for other political offices. It permits contributions to the three judicial candidates and public support for the court referee and former law partner. It says the judge should refrain from public support for the assistant district attorney if that lawyer regularly appears before the judge. The opinion leaves the permissibility of contributions under Alabama statutes and other ethics opinions undecided.

For district attorney and sheriff candidates, the Commission strongly discourages, but does not prohibit, contributions. Those officials could frequently appear in the judge's criminal cases if elected. Depending on additional circumstances, a contribution could raise a reasonable question about impartiality and require disqualification from many cases. The Commission says the judge should not openly support or endorse those candidates because that could create an appearance of influence over the judge.

The opinion also notes that attendance at a fundraising event depends on the event and the judge's participation. It cites prior advice permitting attendance at a fundraising dinner and asks that specific event questions be submitted for advice.

In practice

The opinion draws different conclusions for judicial candidates and for candidates for district attorney or sheriff. Its cautions turn on whether a candidate appears, or would regularly appear, before the criminal judge and whether the activity could make the judge's impartiality reasonably questionable.

Common questions

Q: May the judge contribute to a non-incumbent judicial candidate?

A: Yes under the Canons, including the identified assistant district attorney's judicial campaign. The opinion does not decide whether Alabama statutes or other ethics opinions permit a particular contribution.

Q: May the judge publicly endorse a district attorney or sheriff candidate?

A: The Commission says the judge should not publicly support either candidate, given their potential regular appearances before the criminal judge and the resulting appearance of influence or partiality.

Q: Are contributions to those nonjudicial candidates flatly prohibited?

A: No. The Commission strongly discourages them and explains that additional circumstances could require disqualification from cases involving the recipients.

Background and rules framework

The opinion applies Canon 7A(1)'s treatment of political activity alongside Canons 1, 2C, and 3C(1), which address judicial independence, misuse of office, and disqualification when impartiality may reasonably be questioned. The opinion notes that Canon 7 does not apply to probate judges under Compliance § C.

Citations and references

Alabama Canons of Judicial Ethics:

• Canons 1, 2, 2C, 3C(1), and 7A(1); Compliance § C.

Statutes:

• Alabama Code § 17-5-8, campaign finance disclosure.
• Alabama Code § 17-5-15, cited without a ruling on statutory contribution rules.

Cases:

• In re Sheffield, 465 So. 2d 350 (Ala. 1984), reasonable question about impartiality.
• Wersal v. Sexton, 674 F.3d 1010 (8th Cir. 2012), risk of partiality from endorsement.
• Siefert v. Alexander, 608 F.3d 974 (7th Cir. 2010), cited with endorsements and disqualification.

Other opinions cited:

• Alabama JIC Opinion 78-39, campaign contributions and judicial conduct.
• Alabama JIC Opinion 82-162, support for judicial candidates.
• Alabama JIC Opinion 06-869, nonjudicial campaign activity.
• Alabama JIC Opinion 82-144, attendance at a fundraising dinner.

See also

• AL Judicial Ethics Op. 23-959: Judicial Candidate Fundraiser
• AL Judicial Ethics Op. 25-968: Spouse's Campaign

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 22-951

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: JUNE 21, 2022 ADVISORY OPINION 22-951
POLITICAL ACTIVITY:
INVOLVING CANDIDATES FOR
JUDICIAL OFFICE, DISTRICT
ATTORNEY, AND SHERIFF
ISSUE

1. May a criminal judge publicly
   support, including making
   contributions to, non-incumbent
   candidates in any judicial race under
   the Alabama Canons of Judicial
   Ethics? Answer: The Alabama
   Canons of Judicial Ethics do not
   prohibit a judge from publicly
   supporting or making contributions
   to non-incumbent candidates for
   judicial office, subject to some
   limitations. However, this opinion
   does not address the permissibility
   of such support or contributions
   under Alabama statutes or ethics
   opinions.
2. May a criminal judge publicly
   support, including making
   contributions to and attending
   fundraising events of, candidates for
   district attorney and sheriff in the
   judge’s circuit under the Alabama
   Canons of Judicial Ethics? Answer:
   A judge is strongly discouraged, but
   not prohibited, from making
   contributions to the candidates’
   campaigns, but should not publicly
   support either candidate.
   1
   Canon 7 does not apply to probate
   judges. Compliance with the Canons
   of Judicial Ethics § C.
   FACTS
   A criminal judge asks whether
   he may publicly support (1)
   candidates for circuit judge and (2)
   candidates for district attorney and
   sheriff in the judge’s circuit. The
   candidates for circuit judge include
   an assistant district attorney who
   practices in the inquiring judge’s
   circuit, a court referee in the judge’s
   circuit, and the judge’s former law
   partner. The judge is assigned to hear
   only criminal cases.
   DISCUSSION
   Although judges are generally
   required to conform their conduct to
   all Canons, Canon 7 addresses
   judges’ political activities1
   :
   A. Political Conduct in
   General:
   (1) A judge or a
   candidate for election to
   a judicial office should
   endeavor at all times to
   refrain from political
   activities inappropriate
   to the judicial office
   that he or she holds or
   seeks. It is desirable that
   a judge or a candidate for
   election to judicial
   office endeavor not to be
   JUDICIAL INQUIRY COMMISSION
   DATE ISSUED: JUNE 21, 2022 ADVISORY OPINION 22-951
   involved in the internal
   workings of political
   organizations, engage in
   campaign activities in
   connection with a
   political candidate other
   than a candidate for a
   judicial office and not be
   involved in political
   fund solicitations other
   than for himself or
   herself. However, so
   long as judges are
   subject to nomination
   and election as
   candidates of a political
   party, it is realized that a
   judge or a candidate for
   election to a judicial
   office cannot divorce
   himself completely from
   political organizations
   and campaign activities
   which, indirectly or
   directly, may be
   involved in his election
   or re-election.
   Nevertheless, should a
   judge or a candidate for
   a judicial position be
   directly or indirectly
   involved in the internal
   workings or campaign
   activities of a political
   organization, it is
   imperative that he or she
   at all times conduct
   himself or herself in such
   a manner as to prevent
   any political
   considerations,
   entanglements, or
   influences from ever
   becoming involved in or
   from ever appearing to
   be involved in any
   judicial decision or in
   the judicial process.
   (Emphasis added.) While Canon
   7A(1) discourages, but does not
   prohibit, political activity by judges,
   it does illustrate “the high standards
   of conduct to which the judges of this
   state should aspire in order to
   maintain the independence,
   impartiality and integrity of the
   judiciary of this state.” Ala. Adv. Op.
   78-39. Therefore, the burden is on
   the judge to refrain from political
   activity that is inappropriate to his or
   her judicial office and to carefully
   consider whether the judge’s political
   activity, when considered in the
   totality of the circumstances, would
   violate either the letter or the spirit of
   Canon 7 or any other Canons, such as
   Canons 1 and 2. Id.
   I.
   The first question asks whether a
   judge may publicly support (1) an
   assistant district attorney, (2) a court
   referee, and (3) the judge’s former
   law partner, in their campaigns for a
   judicial office, including by making
   contributions. The Commission has
   previously advised that Canon 7 does
   not discourage or prohibit judges
   from making contributions to a
   candidate, or their campaign
   committee, for any office. Ala. Adv.
   Op. 78-39. Furthermore, Canon 7’s
   JUDICIAL INQUIRY COMMISSION
   DATE ISSUED: JUNE 21, 2022 ADVISORY OPINION 22-951
   exception of candidates for judicial
   office from its general admonishment
   of political activity in connection
   with other candidates for political
   office makes clear that participation
   in activities connected with
   candidates for judicial office is not
   discouraged by Canon 7, without
   distinguishing between incumbent
   and non-incumbent candidates. Ala.
   Adv. Op. 82-162; see also Ala. Adv.
   Ops. 00-755 and 98-689. However,
   the Commission cautioned that a
   judge should take care in ensuring
   that the manner or method of the
   contribution does not violate the
   letter or spirit of Canon 7 or other
   Canons. Ala. Adv. Op. 78-39. The
   Commission has previously advised
   that allowing a judge’s name to be
   used in a newspaper ad and other
   media supporting a candidate for a
   judicial office is permissible political
   activity. Ala. Adv. Op. 82-162.
   Moreover, the Commission, in
   concluding that a trial judge is not
   disqualified from a proceeding where
   the judge had donated to the
   sentencing judge’s campaign, stated,
   “The donating judge has not become
   beholden to the recipient judge as a
   result of the contribution any more
   than the recipient judge becomes
   beholden due to his or her
   contributors.” Ala. Adv. Op. 97-645;
   see also Ala. Adv. Op. 98-700.
   Because a mere contribution would
   not make the judge “beholden” to the
   recipient, there would be no
   appearance of impropriety and no
   reasonable question as to the judge’s
   impartiality based on the
   contribution. Therefore, it is the
   opinion of the Commission that a
   judge may publicly support and
   contribute to the campaigns of a court
   referee and the judge’s former law
   partner, who are candidates for
   judicial office. It is also the opinion
   of the Commission that a judge may
   make contributions to the campaign
   of an assistant district attorney who
   is a candidate for judicial office.
   However, the judge should refrain
   from publicly supporting the assistant
   district attorney as a candidate if that
   assistant district attorney regularly
   appears before the judge.
   This opinion does not address the
   permissibility of a judge’s campaign
   contributions under Alabama statutes
   and ethics opinions. See, e.g., Ala.
   Code § 17-5-15 (2013). The
   Commission urges the judge to seek
   advice from the appropriate agency as
   to Alabama statutes and ethics
   opinions.
   II.
   The second question asks
   whether a criminal division judge
   may openly support and/or contribute
   to candidates for the non-judicial
   offices of district attorney and
   sheriff. The Commission advised in
   Alabama Advisory Opinion 78-39
   that Canon 7 generally does not
   discourage or prohibit judges from
   making contributions to a candidate
   or campaign committee. However,
   such activity by a judge may be
   prohibited by other Canons,
   JUDICIAL INQUIRY COMMISSION
   DATE ISSUED: JUNE 21, 2022 ADVISORY OPINION 22-951
   depending on the circumstances of
   the specific contribution. See
   Commentary, Canon 2 (“A judge must
   avoid all impropriety and appearance
   of impropriety.”); Canon 2C (judges
   should not “convey or permit others
   to convey the impression that they are
   in a special position to influence
   [them]”); Canon 3C(1) (a judge is
   disqualified from any proceeding in
   which “his [or her] impartiality might
   reasonably be questioned”).
   Here, the recipients of the
   judge’s contributions would
   frequently be involved in litigation
   before the judge, assuming each
   recipient wins their respective
   elections. Additionally, the judge’s
   contributions to these candidates
   would be subject to disclosure on the
   candidates’ campaign finance reports.
   See Ala. Code § 17-5-8 (2015). While
   these circumstances alone are not
   sufficient to prohibit a judge from
   making the proposed contributions
   per se, additional circumstances
   could create a reasonable question as
   to the judge’s impartiality. Under
   such additional circumstances, the
   judge would be required to disqualify
   from all cases in which those
   candidates would appear. Given that
   the inquiring judge hears only
   criminal cases, this would require the
   judge’s disqualification in a
   significant number of cases.
   Furthermore, such additional
   circumstances could potentially
   diminish the public’s confidence in
   the independence of the judiciary, or
   at least create an appearance thereof.
   See Canon 1.
   Therefore, it is the opinion of
   the Commission that a judge is
   strongly discouraged, but not
   prohibited, from contributing to the
   campaigns of a district attorney and
   sheriff in the judge’s circuit. Should
   a judge decide to make such
   contributions, the judge must take
   care to ensure that the manner and
   method of the contribution would not
   create a reasonable question as to his
   impartiality, so as to cause his
   frequent disqualification from cases
   in which those officials would
   appear.
   The same concern is present in
   the context of a judge’s open support
   or endorsement of a candidate for
   non-judicial office. The Commission
   has previously advised:
   [Canon 7A(1)] stops
   short of prohibiting all
   activity on behalf of a
   candidate for non-
   judicial statewide office,
   stating that political
   involvement with the
   campaigns of non-
   judicial candidates is
   discouraged, but
   recognizing that there
   may be instances where
   such activity may be
   engaged in out of
   necessity due to the
   nature of the political
   process. However, if
   JUDICIAL INQUIRY COMMISSION
   DATE ISSUED: JUNE 21, 2022 ADVISORY OPINION 22-951
   such conduct is
   undertaken, this Canon
   places a heavy burden on
   the judge/candidate for
   judicial office to
   “conduct himself or
   herself in a manner as to
   prevent any political
   considerations,
   entanglements, or
   influences from ever
   becoming involved in or
   from ever appearing to
   be involved in any
   judicial decision or in
   the judicial process.” In
   addition, the judge or
   judicial candidate must
   endeavor at all times to
   refrain from specific
   political activities that
   are inappropriate to the
   judicial office that he or
   she holds or seeks.
   Ala. Adv. Op. 06-869 (emphasis in
   original). Thus, even though it is not
   prohibited, a judge is discouraged
   from engaging in campaign activities
   in connection with a political
   candidate other than one for judicial
   office. Ala. Adv. Op. 78-39. In the
   event that the judge decides to engage
   in political activity, the Commission
   has continuously cautioned judges
   that they should ensure that any
   political entanglements or activities
   do not involve or appear to become
   involved in the judicial decision-
   making process. E.g., Ala. Adv. Op.
   06-869.
   Although Canon 7 does not
   expressly prohibit judges from
   endorsing candidates for other
   political offices, other Canons may
   prohibit such activity. Id. (“In
   determining whether an activity is
   inappropriate to the judicial office,
   other provisions in the Canons may be
   instructive.”). Canon 2C prohibits
   judges from lending the prestige of
   their office to advance the private
   interests of others or from allowing
   the impression that others are in a
   position to influence him or her.
   Contra Ala. Adv. Op. 18-937
   (allowing judge’s family photograph
   to be used in family member’s
   campaign for non-judicial office
   where there was no indication of or
   reference to the judge’s judicial
   office or title). Moreover,
   endorsements of candidates may
   potentially give the appearance that
   the candidate has some power to
   influence the judge. In upholding
   restrictions on endorsements by
   judges, federal courts have
   recognized, “When a judge or judicial
   candidate endorses another candidate,
   it creates a risk of partiality toward
   the endorsed party and his or her
   supporters, as well as a risk of
   partiality against other candidates
   opposing the endorsed party.” Wersal
   v. Sexton, 674 F.3d 1010, 1025 (8th
   Cir. 2012), cert. denied, 568 U.S. 823
   (2012). Thus, a judge may be
   disqualified in cases where his or her
   impartiality may reasonably be
   questioned based on an endorsement
   of a candidate for public office. See
   Canon 3C(1).
   JUDICIAL INQUIRY COMMISSION
   DATE ISSUED: JUNE 21, 2022 ADVISORY OPINION 22-951
   The Commission expresses
   overwhelming concern when
   addressing criminal judges’
   endorsements of candidates for
   district attorney and sheriff. By
   endorsing candidates for district
   attorney and sheriff, a criminal judge
   might allow the appearance that those
   candidates are in a position to
   influence the judge. Moreover, a
   reasonable person, knowing all of the
   facts known to the judge, could
   reasonably question the judge’s
   impartiality in cases in which the
   candidates, should they be elected to
   those offices, appear based on the
   judge’s endorsement. See Canon
   3C(1); In re Sheffield, 465 So. 2d 350,
   356 (Ala. 1984). As a criminal judge,
   the district attorney and sheriff are
   parties who will be regularly involved
   in litigation before the judge,
   potentially leading to the
   disqualification of the judge in every
   case in which the party that was
   endorsed appears. Accord Siefert v.
   Alexander, 608 F.3d 974 (7th Cir.
   2010), reh’g en banc denied, 619 F.3d
   776 (7th Cir. 2010), cert. denied, 563
   U.S. 983 (2011).
   The same concern is potentially
   present when judges attend
   fundraising events for non-judicial
   candidates as well, depending on the
   circumstances. Even so, the
   Commission has previously advised
   that a judge may attend a fundraising
   dinner for a candidate. Ala. Adv. Op.
   82-144. Questions about attendance
   at a specific event should be
   submitted to the Commission, along
   with the extent of the judge’s
   proposed participation, for advice as
   to whether the judge’s participation
   would violate any of the Canons.
   REFERENCES
   Alabama Advisory Opinions 78-39,
   82-144, 82-162, 97-645, 98-689, 98-
   700, 00-755, 06-869, 18-937.
   Alabama Canons of Judicial Ethics
   1, 2, 2C, 3C(1), 7A(1).
   Ala. Code § 17-5-8 (2015).
   Ala. Code § 17-5-15 (2013).
   In re Sheffield, 465 So. 2d 350 (Ala.
   1984).
   Siefert v. Alexander, 608 F.3d 974
   (7th Cir. 2010)
   Wersal v. Sexton, 674 F.3d 1010 (8th
   Cir. 2012).
   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 of the Alabama 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;
   email: [email protected].