Must Alabama appellate judges step aside when a deputy marshal who helps secure their building is a party?

Plain-English summary

A child custody appeal was pending before the Alabama Court of Civil Appeals. A deputy marshal of the Alabama Supreme Court had custody of the child and was a party. The marshal's department secured the judicial building where the appellate judges worked. The judges had no outside relationship with the deputy marshal and were not predisposed to the issues on appeal.

Under Canon 3C(1), disqualification turns on whether a person of ordinary prudence, knowing the facts known to the judge, would reasonably question impartiality. The Commission concluded that a professional security relationship alone does not meet that standard. It relied on earlier opinions involving court employees and professional contacts.

The opinion addresses disqualification under the Canons. It separately explains that a judge who is not disqualified may choose to recuse if the circumstances warrant it, including concern about future working relations among court personnel. That choice remains discretionary under the cited opinions.

In practice

On the stated facts, the deputy marshal's role in securing the judges' building does not require their disqualification from the appeal. The Commission's conclusion rests on the absence of other relationships or predisposition and leaves discretionary recusal to each judge.

Common questions

Q: Does a party's work securing the judges' building require disqualification?

A: No. The Commission says this professional contact, standing alone, does not reasonably call the appellate judges' impartiality into question.

Q: Can a judge recuse without being disqualified?

A: Yes. The opinion distinguishes the duty to disqualify under Canon 3C(1) from a judge's discretionary decision to recuse when the circumstances warrant it.

Background and rules framework

The opinion applies Alabama Canon 3C(1)'s reasonable question about impartiality and discusses Canon 2's appearance of impropriety in quoting an earlier opinion. It cites Matter of Sheffield for the ordinary-prudence test.

Citations and references

Alabama Canons of Judicial Ethics:

• Canons 2 and 3C(1).

Cases:

• Matter of Sheffield, 465 So. 2d 350 (Ala. 1984), ordinary-prudence disqualification test.
• Ex parte Hill, 508 So. 2d 269 (Ala. Civ. App. 1987), ordinary relationships with parties.
• United States v. Faul, 748 F.2d 1204 (8th Cir. 1984), security contact with the court.
• United States v. Jacobs, 311 Fed. App’x. 535 (3d Cir. 2008), cited with the marshal security discussion.

Other opinions cited:

• Alabama JIC Opinions 83-193 and 09-902, distinction between disqualification and recusal.
• Alabama JIC Opinions 94-519 and 98-701, professional contact with court personnel.

See also

• AL Judicial Ethics Op. 23-957: Former Prosecutor and Recusal
• AL Judicial Ethics Op. 24-962: Police Lieutenant Spouse

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 22-952

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 22-952
DISQUALIFICATION DUE TO
ACQUAINTANCE WITH A PARTY
ISSUES
Are the judges of the Alabama
Court of Civil Appeals required to
disqualify themselves from a juvenile
case in which the child is currently in
the custody of a deputy marshal?
Answer: No.
FACTS
A juvenile case involving the
custody of a child is pending on
appeal before the Alabama Court of
Civil Appeals. The child is currently
in the custody of an individual who is
employed as a deputy marshal of the
Alabama Supreme Court. The deputy
marshal is a party to the appeal. The
judges have not been predisposed to
any facts or other issues that may be
presented on appeal and do not have
a relationship with the deputy
marshal outside of the professional
relationship between them. The
extent of the professional
relationship is that the deputy
marshal, as a part of the marshal’s
department, is responsible for
providing security to the Heflin-
Torbert Judicial Building and its
occupants, which includes the judges
of the Alabama Court of Civil
Appeals.
DISCUSSION
Under Canon 3C(1) of the
Alabama Canons of Judicial Ethics, a
judge is disqualified where the
judge’s “impartiality might
reasonably be questioned.” More
specifically, the test under Canon
3C(1) is:
Would a person of
ordinary prudence in the
judge’s position knowing
all of the facts known to
the judge find that there
is a reasonable basis for
questioning the judge’s
impartiality?
Matter of Sheffield, 465 So. 2d 350,
356 (Ala. 1984).
In Advisory Opinion 98-701,
the Commission stated: “The fact that
a party is employed in some capacity
within the court or law enforcement
system . . . is [not] sufficient to cause
disqualification.” Advisory Opinion
98-701. In Advisory Opinion 94-519,
the Commission advised that a circuit
judge is not disqualified from a case
based on the mere fact that the circuit
clerk is a material witness. The
Commission stated that, absent other
extenuating circumstances, “the
professional relationship between a
circuit judge and a circuit clerk, in
and of itself, is not such as would
cause a judge’s impartiality to
reasonably be questioned under
Canon 3C or to create the appearance
of impropriety under Canon 2,”
unless the relationship would cause
the judge to be unable to remain fair
and impartial. Id. Moreover, the
Commission repeated the following
from the Court of Civil Appeals in
Advisory Opinion 03-827: “[I]t is an
inescapable fact of life that judges
serving throughout the State will
necessarily have had associations and
friendships with parties coming
JUDICIAL INQUIRY COMMISSION
DATE ISSUED: JUNE 21, 2022 ADVISORY OPINION 22-952
before their courts. A judge should
not be subject to disqualification for
such ordinary relations with his
fellow citizens.” Ex parte Hill, 508
So. 2d 269, 272 (Ala. Civ. App.
1987).
Likewise, the relationship
between the deputy marshal and the
judges of the Court of Civil Appeals,
where the deputy marshal, as an
employee of the marshal’s
department, provides security to the
Judicial Building in which the Court
of Civil Appeals judges work, is
insufficient, in and of itself, to create
a reasonable question as to the
judge’s impartiality. See United
States v. Faul, 748 F.2d 1204, 1210–
11 (8th Cir. 1984) (holding that a
marshal having contact with the court
by providing security is not sufficient
to establish a professional or personal
relationship that would demonstrate a
personal prejudice or bias or an
inability for the judge to remain
impartial); United States v. Jacobs,
311 Fed. App’x. 535, 537 (3d Cir.
2008). Therefore, it is the opinion of
the Commission that the judges of the
Court of Civil Appeals are not
disqualified on the basis that a deputy
marshal who provides security to the
judges is a party in the appeal.
This opinion only addresses the
judge’s duty to disqualify under the
Alabama Canons of Judicial Ethics.
The Commission has previously
recognized that the duty to disqualify
is separate from a judge’s decision to
recuse himself or herself from a
proceeding. Advisory Opinion 83-

193. Even where a judge is not
     disqualified, a judge may still recuse
     himself or herself from a proceeding
     if the judge “feels or believes the
     circumstances warrant such an act on
     his [or her] part.” Id. One such
     circumstance could be, for example,
     the impact that the outcome may have
     on future working relations among
     court personnel. See Advisory
     Opinions 95-587 and 98-701.
     However, a judge’s decision whether
     to recuse is within the judge’s
     discretion. Advisory Opinion 09-
     902; but cf. Advisory Opinion 85-
     235.
     REFERENCES
     Alabama Advisory Opinions 83-193,
     85-235, 94-519, 95-587, 98-701, 03-
     827, and 09-902.
     Alabama Canons of Judicial Ethics
     3C(1).
     Ex parte Hill, 508 So. 2d 269, 272
     (Ala. Civ. App. 1987).
     Matter of Sheffield, 465 So. 2d 350,
     356 (Ala. 1984).
     United States v. Faul, 748 F.2d 1204,
     1210–11 (8th Cir. 1984).
     United States v. Jacobs, 311 Fed.
     App’x. 535, 537 (3d Cir. 2008).
     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 Rules of Procedure of
     the Judicial Inquiry Commission. For
     further information, you may contact
     the
     JUDICIAL INQUIRY COMMISSION
     DATE ISSUED: JUNE 21, 2022 ADVISORY OPINION 22-952
     Judicial Inquiry Commission: P.O.
     Box 303400, Montgomery, Alabama
     36130-3400; tel.: (334) 242-4089; e-
     mail: [email protected].