May a part-time active retired Alabama judge mediate, arbitrate, or serve as a private judge in the same circuit?

Plain-English summary

The inquiring retired circuit judge served part-time on active duty by appointment and had a small assigned docket. The judge planned a practice in mediation, arbitration, and private judging after those cases ended, while remaining available for judicial appointment.

Compliance § D(2) exempts part-time active retired judges from Canon 5E's bar on judges acting as mediators or arbitrators. The Commission says the judge may provide either service in the same circuit under Canon 5C(1), unless it would adversely reflect on impartiality, interfere with judicial work, or exploit judicial position.

The Commission also treats private judging as a financial activity under Canon 5C(1). But Alabama Code section 12-11A-2(a)(1) requires a private judge to have served at least six consecutive years and to be a former judge who is “not actively serving.” The Commission says it lacks authority to interpret that statute. It does not decide whether a part-time active retired judge satisfies it. If the judge is found to be actively serving for that statute, or if combining the roles violates Alabama ethics law, Canon 2A's duty to obey law would prohibit private judging.

In practice

The opinion separates permission under the judicial Canons from the unresolved statutory qualification for private judging. It identifies the judge's continuing active-duty status as the fact requiring that separate legal determination.

Common questions

Q: May the judge mediate or arbitrate within the same circuit?

A: Yes, under the Canons, provided the work does not adversely reflect on impartiality, interfere with judicial duties, or exploit judicial position.

Q: Does the opinion finally approve private judging by an active retired judge?

A: No. It applies Canon 5C(1) but leaves the meaning of the statute's “not actively serving” qualification to an authority outside the Commission.

Background and rules framework

The opinion reads Compliance § D(2) as exempting part-time active retired judges from Canon 5E while leaving Canon 5C(1) and Canon 2A applicable. It identifies Alabama Code section 12-11A-2(a)(1) as the separate private-judge qualification it cannot interpret.

Citations and references

Alabama Canons of Judicial Ethics:

• Canons 2A, 5C(1), and 5E; Compliance § D(2).

Statutes:

• Alabama Code § 12-11A-2(a)(1), on qualifications for a private judge.

See also

• AL Judicial Ethics Op. 25-966: Retired Judge's Firm Letterhead
• AL Judicial Ethics Op. 23-960: Probate Judge as Land Surveyor

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 23-955

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: APRIL 27, 2023 ADVISORY OPINION 23-955
PART-TIME RETIRED JUDGES:
EMPLOYMENT AS MEDIATOR,
ARBITRATOR, AND PRIVATE
JUDGE
ISSUES
Is a part-time active retired judge
prohibited by the Alabama Canons of
Judicial Ethics from serving as an
arbitrator or mediator in the circuit in
which he or she serves as a judge?
Answer: No, unless doing so
would reflect adversely on the retired
judge’s impartiality, interfere with
the proper performance of the retired
judge’s judicial duties, or exploit the
retired judge’s judicial position.
Is a part-time active retired judge
prohibited by the Alabama Canons of
Judicial Ethics from serving as a
private judge in the circuit in which
he or she serves as a judge?
Answer: Retired part-time judges
are required to “respect and comply
with the law” as required by Canon
2A.
FACTS
A circuit judge who has recently
retired serves on a part-time active
basis pursuant to an appointment by
the Chief Justice. The judge presides
over a small docket of cases
specifically assigned by the presiding
judge of the circuit and the judge does
not expect to be assigned any
additional cases. The judge will no
longer have an active docket once
these cases are concluded, although
the judge will still be available for
appointment by the Chief Justice.
The judge intends to develop a
practice devoted to alternative
dispute resolution (ADR) methods—
i.e., mediation, arbitration, and
serving as a private judge.
DISCUSSION
I.
First, the inquiring judge asks
whether a part-time active retired
judge may serve as a mediator or
arbitrator within the circuit in which
the judge serves. The Compliance
provisions of the Canons pertaining
to retired judges provide:
Retired and supernumerary
justices or judges, who are
serving part time on the
Supreme Court or on either of
the courts of appeals or on any
circuit or district court in the
state, in an active duty status,
shall be required to comply
with all of these Canons,
except Canon 5C(3), D, E, F, G,
and Canon 6C.
§ D(2), Compliance with the Canons
of Judicial Ethics. Because part-time
active retired judges are exempt from
compliance with Canon 5E, which
prohibits judges from acting as
arbitrators or mediators, a retired
part-time judge may serve in those
capacities.
A part-time active retired judge’s
serving as an arbitrator or mediator is
an extrajudicial financial activity
ADVISORY OPINION 23-955
PAGE 2
under Canon 5C(1). Thus, a retired
judge may serve as a mediator or
arbitrator, even in the circuit in which
the retired judge serves as a judge,
unless doing so would “tend to reflect
adversely on his [or her] impartiality,
interfere with the proper performance
of his [or her] judicial duties, or
exploit his [or her] judicial position.”
II.
Additionally, the inquiring judge
asks whether a part-time active
retired judge may also serve as a
private judge in the circuit in which
they serve as a judge. A part-time
active retired judge’s employment as
a private judge would also be an
extrajudicial financial activity
subject to the restrictions in Canon
5C(1). Therefore, a part-time active
retired judge may serve as a private
judge, even in the circuit in which
they serve as a judge, unless doing so
would “tend to reflect adversely on
his [or her] impartiality, interfere
with the proper performance of his [or
her] judicial duties, or exploit his [or
her] judicial position.” Canon 5C(1).
However, part-time active retired
judges are still expected to comply
with Canon 2A which provides, in
pertinent part, “A judge should
respect and comply with the law.” §
D(2), Compliance. The qualifications
for those who may act as a private
judge in Alabama are listed in Ala.
Code § 12-11A-2. That statute
provides:
(a) Persons who may act as
private judges shall:
(1) Have been, but are
not actively serving
as, a judge of a
district, circuit, or
probate court and
have served in the
capacity of judge for
at least six
consecutive years.
Ala. Code § 12-11A-2(a)(1)
(emphasis added).
The Commission’s advisory
authority extends only to the
application of the Alabama Canons of
Judicial Ethics to the proposed
conduct of a judge. Rule 18, Ala. R.P.
Jud. Inq. Comm’n. The Commission
may not provide advice on the
interpretation or application of
Alabama statutes. That authority lies
with the Alabama Attorney General.
The Commission encourages the
inquiring judge to seek an opinion
from the Attorney General regarding
the application of Ala. Code § 12-
11A-2 to part-time retired judges.
The Commission also encourages the
inquiring judge to seek advice from
the Alabama Ethics Commission
regarding the application of the
Alabama Ethics law. If it is
determined that a retired part-time
judge is “actively serving” as a judge,
or that serving in both capacities
would violate the Alabama Ethics
law, then a retired judge would be
prohibited from also serving as a
private judge under Canon 2A.
ADVISORY OPINION 23-955
PAGE 3
REFERENCES
Ala. Code §§ 12-11A-2, 12-11A-
2(a)(1) (Westlaw, Current through th
end of the 2022 Regular and First
Special Sessions).
Alabama Canons of Judicial Ethics
2A, 5C(1), 5E, and § D(2),
Compliance with the Canons of
Judicial Ethics.
Alabama Rules of Procedure for the
Judicial Inquiry Commission 18.
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].