May a full-time Alabama municipal judge also hold a notary public commission?

Plain-English summary

The judge had received a notary commission before becoming a full-time municipal judge and had not used it since appointment. The Commission considered whether holding both roles would conflict with Canon 2A's duty to comply with law or Canon 5C's limits on business and financial activity.

The opinion reads the Alabama Constitution's municipal-judge and notary exceptions as appearing to permit both roles. It expressly says it cannot decide constitutional or statutory law. If its reading of those provisions is later held wrong, Canon 2A would prohibit a judge from continuing as a notary.

The Commission says a simple notarization does not by itself reflect adversely on impartiality or require recusal from a case involving the signer. Yet the notary becomes a fact witness to an acknowledgment, so if a document the judge notarized becomes disputed, the judge must consider whether disqualification is required, including whether the judge would be a material witness under Canon 3C(1)(d)(iii). Municipal courts' limited jurisdiction makes that overlap unlikely on the facts presented.

In practice

The opinion permits holding the notary commission within the Canons' limits. It leaves room for case-specific recusal over a notarized document and for a later legal interpretation of whether the two public roles may be held together.

Common questions

Q: Does notarizing a document automatically disqualify the judge from any case involving its signer?

A: No. The Commission says the act alone is insufficient, while a dispute about the notarized document could make the judge a material witness and require a separate disqualification inquiry.

Q: Did the Commission finally decide whether both offices are constitutionally compatible?

A: No. It says constitutional and statutory interpretation is beyond its advisory authority, and its reading of the exceptions may be displaced by a later legal ruling.

Background and rules framework

The opinion applies Alabama Canon 2A's compliance-with-law duty and Canon 5C's financial-activity limits. It discusses Canons 3C(1) and 3C(1)(d)(iii) for possible disqualification when a notarized document is at issue.

Citations and references

Alabama Canons of Judicial Ethics:

• Canons 2A, 2C, 3C(1), 3C(1)(d)(iii), 5C, 5C(1), and 5C(3).

Constitution and statutes:

• Alabama Constitution art. VI, §§ 145 and 147, and art. XVII, § 280, discussed for holding two offices.
• Alabama Code §§ 36-2-1(b), 12-14-1, and 12-14-31, on public offices and municipal judges.

Other opinions cited:

• New York Advisory Opinions 03-129 and 14-107, cited for a judge serving as notary.
• Connecticut Advisory Opinion 2016-01, cited on the same issue.

See also

• AL Judicial Ethics Op. 23-960: Probate Judge as Land Surveyor
• AL Judicial Ethics Op. 25-965: Stock Investments and Recusal

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 23-956

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: AUGUST 3, 2023 ADVISORY OPINION 23-956
BUSINESS & FINANCIAL
ACTIVITIES: JUDGE AS NOTARY
PUBLIC
ISSUES
Is it permissible under the
Alabama Canons of Judicial Ethics
for a full-time municipal judge to also
hold a commission as a notary public?
Answer: Yes.
FACTS
A full-time municipal judge was
commissioned as a notary public prior
to being appointed a municipal judge.
The judge’s commission is set to
expire this year. The judge has not
used the notary public commission
since being appointed as municipal
judge.
DISCUSSION
The Commission has not yet
answered the question of whether a
judge may serve as a notary public.
Upon examining relevant opinions
from other jurisdictions that have
answered this question, there are two
main concerns that must be addressed
when a judge wishes to serve as a
notary public.
The first concern is whether the
judge’s service as a notary public
would violate any provisions of the
Alabama Constitution or Alabama
statutory law. Canon 2A requires
judges to “respect and comply with
the law.” Article VI, Section 147(b)
of the Alabama Constitution of 2022
provides, “No judge, except a judge
of probate court, shall seek or accept
any nonjudicial elective office, or
hold any other office of public trust,
excepting service in the military
forces of the state or federal
governments.” It does not appear that
the question of whether a notary
public holds an “office of public
trust” has been answered in Alabama.
Regardless, Article VI, Section 145
of the Alabama Constitution of 2022,
pertaining specifically to municipal
courts, provides that judges of
municipal courts are not subject to
the prohibition in Section 147(b).
Additionally, Article XVII,
Section 280 of the Alabama
Constitution of 2022 provides,
“No person holding an office of
profit under the United States,
except postmasters, whose
annual salaries do not exceed
two hundred dollars, shall,
during his continuance in such
office, hold any office of profit
under this state; nor, unless
otherwise provided in this
Constitution, shall any person
hold two offices of profit at one
and the same time under this
state, except justices of the
peace, constables, notaries
public, and commissioner of
deeds.”
(Emphasis added.) See also Ala. Code
§ 36-2-1(b) (containing the same
provision without exemption for
justices of the peace). Similar to the
question under Section 147(b), the
Commission is unaware of any
authority within Alabama that
determines whether a notary public
holds an “office of profit under th[e]
ADVISORY OPINION 23-956
PAGE 2
state.” However, Section 280
provides an exemption for notaries
public. Thus, it would appear that
persons holding an office of profit
under the state while also holding a
commission as a notary public do not
violate Section 280.
Under the facts presented, the
exemptions in Sections 145 and 280
would both apply because the
inquiring judge is a municipal judge
and would simultaneously hold the
offices of municipal judge and notary
public. Therefore, it appears that a
full-time municipal judge may serve
as a notary public without violating
Canon 2A.1
The second concern is whether a
municipal judge’s service as a notary
public would violate the provisions of
Canon 5C. Canon 5C(1) provides, “A
judge should refrain from financial
and business dealings that tend to
reflect adversely on his impartiality,
interfere with the proper performance
of his judicial duties, or exploit his
judicial position.” Canon 5C(3)
further provides, “A judge should
manage his investments and other
financial interests to minimize the
number of cases in which he is
disqualified.” The simple act of
1
The Commission’s advisory opinion
authority extends only to questions
regarding the application of the Canons of
Judicial Ethics. The Commission may not
provide advice on questions regarding the
application of constitutional or statutory
law. Therefore, if the Commission’s
understanding of Sections 145, 147, or 280
are later held to be incorrect, then a
municipal judge would be prohibited by
Canon 2A from serving as a notary public.
notarizing a document for an
individual is not, in the opinion of the
Commission, sufficient to reflect
adversely on the judge’s impartiality
or require the judge’s disqualification
in a case involving that party.
“[T]here is nothing unethical in a
judge serving as a notary public,
particularly in light of the authority
otherwise given to judges to take
oaths and acknowledgments.” New
York Advisory Opinion 14-107
(citing New York Advisory Opinion
03-129); see Ala. Code § 12-14-31
(authorizing municipal judges to
administer oaths); see also
Connecticut Advisory Opinion 2016-

1. Additionally, it is unlikely that
   serving as a notary public would
   substantially interfere with the
   municipal judge’s duties.
   However, in serving as a notary
   public, a judge is voluntarily making
   himself or herself a witness in
   certifying the acknowledgment of
   documents under his or her seal.2
   This
   could require the judge to disqualify
   himself or herself in proceedings
   where a document that the judge
   notarizes is at issue. See Canon
   3C(1). It is unlikely, however, that a
   municipal judge who also serves as a
   2
   In this instance, a judge would be
   voluntarily making themselves a fact
   witness rather than a character witness.
   Under Canon 2C, a judge may not
   voluntarily testify as a character witness in
   a proceeding; however, this provision does
   not prohibit a judge from voluntarily
   participating as a fact witness, although it
   is generally discouraged. Alabama
   Advisory Opinion 98-705.
   ADVISORY OPINION 23-956
   PAGE 3
   notary public would ever be presented
   with such an issue.
   Municipal courts are courts of
   limited jurisdiction. See Ala. Code §
   12-14-1 (conferring jurisdiction to
   municipal courts over prosecutions
   for breaches of municipal
   ordinances); see generally T. Brad
   Bishop, Municipal Courts § 1.12 at
   10–12 (4th ed 2012). Based on the
   limited jurisdiction of the municipal
   court, it is unlikely that a municipal
   judge would be required to decide the
   validity of documents which he or she
   notarized in these types of cases. See
   Ala. R. Crim. P. 2.3 (requiring a
   criminal complaint be “made upon
   oath before a judge, magistrate, or
   official authorized by law to issue
   warrants of arrest,” which does not
   include a notary public (see Ala.
   Code § 36-20-73)). Therefore, it is
   unlikely that a municipal judge would
   violate Canon 5C(3) in failing to
   minimize the number of cases in
   which he or she is disqualified by
   serving as a notary public.
   In cases where a municipal judge
   is faced with a document that he or
   she has notarized, the judge should
   determine whether disqualification
   might be required. Again, “there is
   nothing unethical in a judge serving
   as a notary public.” New York
   Advisory Opinion 14-107 (citing New
   York Advisory Opinion 03-129).
   Therefore, a municipal judge’s
   service as a notary would not, by
   itself, create a reasonable question as
   to the judge’s impartiality requiring
   the judge’s disqualification. But, a
   municipal judge should consider the
   facts of the case to determine whether
   the judge might be a material witness
   in the case. See Canon 3C(1)(d)(iii).
   Because a municipal judge’s
   service as a notary public would not
   reflect adversely on the judge’s
   impartiality and is unlikely to
   interfere with the performance of the
   judge’s judicial duties, and would
   potentially cause the judge’s
   disqualification in only a minimum
   number of cases, a municipal judge
   would not violate any of the
   provisions of Canon 5C by serving as
   a notary public so long as the judge
   does not exploit his or her judicial
   office.
   REFERENCES
   Alabama Canons of Judicial Ethics
   2A, 2C, 3C(1), 3C(1)(d)(iii), 5C,
   5C(1), 5C(3).
   Ala. Code §§ 12-14-1, 12-14-31, 36-
   2-1(b), 36-20-73.
   Ala. Const. art. VI, §§ 145, 147 (Off.
   Recomp. 2022).
   Ala. Const. art. XVII, § 280 (Off.
   Recomp. 2022).
   Alabama JIC Advisory Opinions 98-
   705.
   Ala. R. Crim. P. 2.3.
   Connecticut Advisory Opinion 2016-
   01.
   New York Advisory Opinions 03-129
   and 14-107.
   ADVISORY OPINION 23-956
   PAGE 4
   T. Brad Bishop, Municipal Courts §
   1.12 (4th ed. 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].