Must an Alabama judge recuse when officers supervised by the judge's police-lieutenant spouse handled a case?

Plain-English summary

The judge's spouse was a police lieutenant commanding units that primarily investigated homicides, robberies, and assaults. The judge heard cases investigated by local officers, including officers under the spouse's command.

The Commission distinguishes a spouse's mere employment by a law enforcement agency from supervisory responsibility. It says employment alone does not disqualify a judge unless the spouse is involved in the case. When the spouse commands investigating officers, the spouse's interest in their performance could be substantially affected by the outcome, even without the spouse's direct involvement. Canon 3C(1)(d)(ii) therefore disqualifies the judge from cases involving the spouse or officers under the spouse's supervision.

Canon 3D permits remittal of a Canon 3C(1)(d) disqualification. The judge must disclose the basis on the record; then the parties and lawyers, independently of the judge, must agree in writing that the relationship is immaterial. The agreement is incorporated into the record. The Commission clarifies earlier advice in Opinion 13-919 that had suggested this kind of disqualification could not be remitted.

In practice

The opinion turns on whether the spouse exercised command over officers involved in the case, rather than whether both spouses worked in the justice system. It treats remittal as available because the specific disqualification ground is Canon 3C(1)(d)(ii).

Common questions

Q: Does the spouse's employment anywhere in the police department always disqualify the judge?

A: No. The Commission says employment alone does not disqualify the judge unless the spouse was involved. This opinion addresses the different case of a spouse who supervises officers involved in the proceeding.

Q: May the parties remit the disqualification?

A: Yes. The opinion requires disclosure on the record followed by a written agreement of all parties and lawyers under Canon 3D, made independently of the judge.

Background and rules framework

The opinion applies Alabama Canon 3C(1)(d)(ii) to the spouse's potentially substantial interest in cases handled by officers under the spouse's command. It reads Canon 3D as permitting remittal even though the same facts also raise a reasonable question about impartiality under Canon 3C(1)'s general language.

Citations and references

Alabama Canons of Judicial Ethics:

• Canons 3C(1), 3C(1)(d)(ii), and 3D.

Other opinions cited:

• Alabama JIC Advisory Opinion 86-286, on a spouse's law-enforcement employment.
• Alabama JIC Advisory Opinion 13-919, on police supervision and earlier remittal advice revised here.

See also

• AL Judicial Ethics Op. 24-963: City-Council Spouse and Police Cases
• DC Judicial Ethics Op. 6: Prosecutor Spouse Recusal

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 24-962

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: APRIL 25, 2024 ADVISORY OPINION 24-962
DISQUALIFICATION: JUDGE’S
SPOUSE IS A POLICE
LIEUTENANT
ISSUES
Is a judge disqualified from
hearing criminal cases involving
local police officers who are under
the supervision of the judge’s spouse?
Answer: Yes, but the
disqualification is subject to remittal
by the parties.
FACTS
The spouse of a judge is a
lieutenant in the local police
department. As lieutenant, the
judge’s spouse exercises supervisory
authority over two units that
primarily investigate homicides,
robberies, and assaults. The judge’s
spouse will also be responsible for
compiling crime statistics regarding
robberies and assaults. The judge
hears both criminal and civil cases,
including cases that are investigated
by officers of the local police
department.
DISCUSSION
Disqualification is governed by
Canon 3C. Canon 3C(1) provides:
A judge should disqualify
himself [or herself] in a
proceeding in which his [or
her] disqualification is
required by law or his [or her]
impartiality might reasonably
be questioned, including but
not limited to:
. . . .
(d) [The judge or the
judge’s] spouse, or a
person within the fourth
degree of relationship to
either of them, or the
spouse of such a person:
(i) Is named a
party to the
proceeding, or an
officer, director,
or trustee of a
party;
(ii) Is known
by the judge to
have an interest
that could be
substantially
affected by the
outcome of the
proceeding;
(iii) Is to the
judge’s knowledge
likely to be a
material witness in
the proceeding.
Generally, the Commission has
advised that a judge is not
disqualified from a case involving a
particular law enforcement agency
based solely on his or her spouse’s
employment with that law
enforcement agency. Advisory
Opinion 86-286; see also Advisory
Opinion 13-919. Rather, a judge is
disqualified from such a case only if
ADVISORY OPINION 24-962
PAGE 2
his or her spouse was actually
involved in the case in any way. Id.
This is true, however, only where the
judge’s spouse does not exercise any
supervisory authority within the law
enforcement agency. See Advisory
Opinions 97-668 and 13-919.
Where a judge’s spouse exercises
supervisory authority within a law
enforcement agency, the judge is
disqualified from cases in which the
judge’s spouse was actually involved
or officers under the supervision of
the judge’s spouse were involved.
Advisory Opinion 13-919; Cynthia
Gray, An Ethics Guide for Judges and
Their Families 51 (Am. Judicature
Soc’y 2001). A judge’s spouse has a
clear interest—i.e., the satisfactory
performance of his or her duties—that
could be substantially affected by the
outcome of cases brought by officers
who are under his or her command,
even where the judge’s spouse may
not have had any direct involvement
in the case. See Advisory Opinions
81-103 and 88-322 (recognizing that
a judge’s spouse’s employment is a
substantial interest that could
disqualify the judge if it would be
substantially affected by the outcome
of a proceeding). Therefore, a judge
is disqualified pursuant to Canon
3C(1)(d)(ii) from cases in which the
judge’s spouse or officers over whom
the judge’s spouse exercises
supervisory authority are actually
involved.
Here, the judge’s spouse is a
lieutenant in the local police
department overseeing a unit that
conducts investigations, primarily, of
homicides, robberies, and assaults.
The policies and procedures of the
local police department place each
organizational unit under the
command of one commanding officer
and make that officer “responsible
and accountable for the discipline and
efficiency of subordinates assigned to
their command.” Although the
judge’s spouse may not personally be
involved in or review every step of an
investigation, the judge’s spouse is
responsible for the efficient and
successful performance of the unit’s
duties, including the successful
prosecution of crimes investigated by
officers under the spouse’s
supervision. Because the judge’s
spouse, as the lieutenant who
supervises a unit, has an interest that
could be substantially affected by the
outcome of cases brought by officers
in that unit, the judge is disqualified
from those cases.
Nonetheless, this disqualification
may be remitted. Canon 3D provides:
A judge disqualified by the
terms of Canon 3C(1)(c) or
Canon 3C(1)(d) may, instead of
withdrawing from the
proceeding, disclose in the
record the basis of his [or her]
disqualification. If based on
such disclosure, the parties and
lawyers, independently of the
judge’s participation, all agree
in writing that the judge’s
relationship is immaterial or
that his financial interest is
insubstantial, the judge is no
ADVISORY OPINION 24-962
PAGE 3
longer disqualified, and may
participate in the proceeding.
The agreement signed by all
parties and lawyers shall be
incorporated in the record of
the proceeding.
Because the judge is disqualified, in
this instance, under the terms of
Canon 3C(1)(d)(ii), the parties may
remit the judge’s disqualification
following the judge’s disclosure of
the relationship on the record by
following the procedure outlined in
Canon 3D.
The Commission notes that its
advice in Advisory Opinion 13-919
suggests that this type of
disqualification is not remittable, as
the Commission had previously
advised in Advisory Opinions 99-730
and 99-735, because it creates a
reasonable question as to the judge’s
impartiality, and, therefore, falls
under Canon 3C(1)’s general
disqualification provision, which is
not subject to remittal. In its review
of this advice, it is the opinion of the
Commission that this type of
disqualification is remittable as it
falls under both the terms of Canon
3C(1)(d) and Canon 3C(1)’s general
disqualification provision. Canon
3C(1) provides that a judge is
disqualified “in a proceeding in
which . . . his [or her] impartiality
might reasonably be questioned,
including but not limited to instances
where: . . . .” (Emphasis added.) The
Canon then goes on to list four
specific instances where a judge is
disqualified. Canons 3C(1)(a)–(d).
The use of the word “including” in
Canon 3C(1) indicates that a
reasonable question as to the judge’s
impartiality exists in each of the four
specific instances listed in Canons
3C(1)(a)–(d). Even so, Canon 3D
provides that disqualifications caused
by the specific instances in Canons
3C(1)(c) and (d) are remittable by the
parties. Therefore, the Commission
advises that disqualification under
Canons 3C(1)(c) and 3C(1)(d) is
remittable, even though a reasonable
question as to the judge’s impartiality
exists that would disqualify the judge
under the general disqualification
provision.
REFERENCES
Alabama Canons of Judicial Ethics
3C(1), 3C(1)(d)(ii), 3D.
Alabama JIC Advisory Opinions 81-
103, 86-286, 88-322, 97-668, 13-919.
Cynthia Gray, An Ethics Guide for
Judges and Their Families 51 (Am.
Judicature Soc’y 2001).
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].