Could a judge appoint a second cousin once removed as bailiff when that relative was the best-qualified candidate?

Plain-English summary

The judge wanted to appoint a second cousin once removed as bailiff after interviewing multiple candidates and finding the relative best qualified.

The Commission applied Canon 3B(4)’s merit and anti-nepotism rule alongside Alabama Code § 41-1-5’s fourth-degree bar. It said a second cousin once removed fell in the seventh degree and the appointment was allowed if based solely on merit. It reaffirmed Opinion 86-256.

Currency note

This opinion was issued in 1987, after the Alabama Supreme Court’s 1975 adoption of the Alabama Canons of Judicial Ethics. Subsequent amendments or later opinions may have changed the analysis. Treat this page as historical context and verify the current Canons and linked opinion before relying on its conclusions.

Common questions

Q: Was the appointment absolutely barred by the cited statute?

A: No. The Commission said this relative was in the seventh degree, beyond the statutory fourth-degree bar.

Q: What condition applied to this appointment?

A: The Commission said it must be based solely on merit, rather than nepotism or favoritism.

Background and rules framework

The opinion quotes Canon 3B(4) on merit-based appointments and Alabama Code § 41-1-5 on appointments of relatives within the fourth degree.

Citations and references

Alabama Canons of Judicial Ethics:

• Canon 3B(4)

Statutes:

• Alabama Code § 41-1-5 (1975), fourth-degree appointment bar.

Other opinions cited:

• Alabama JIC Opinion 86-256, reaffirmed rule for appointments of more distant relatives.

See also

• AL Judicial Ethics Op. 87-305: Spouse in City Attorney Office

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 87-291
• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

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

87-291
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
February 2, 1987
The Judicial Inquiry Commission has considered your request for an opinion concerning whether under the Alabama Canons of Judicial Ethics a judge may appoint his second cousin once removed as his bailiff. The judge states that he has interviewed a number of people and his relative is the most qualified applicant. In Advisory Opinion 86-256 the Commission considered a similar question, i.e., whether a judge could appoint his second cousin as his secretary. The Commission found that judicial appointments are governed by Canon 3B(4) of the Alabama Canons of Judicial Ethics and Section 41-1-5 Code of Alabama, 1975. These provisions are as follows: Canon 3B(4): “A judge should not make unnecessary appointments. He should exercise his power of appointment only on the basis of merit, avoiding nepotism and favoritism ...” Section 41-1-5: “No officer ... of the state ... shall appoint any person related to him within the fourth degree of affinity or consanguinity to any job ... with the state or any of its agencies.” The Commission held that these two provisions, taken together, absolutely prohibit a judge’s appointment of a relative within the prohibited degree. Other appointments of relatives are restricted but not absolutely prohibited. If the appointment is based on merit and not nepotism then the appointment is not prohibited if it is outside the fourth degree. We hereby reaffirm our Advisory Opinion 86-256. According to the Nolan Chart, a second cousin once removed falls within the seventh degree of kinship. Therefore, based on the foregoing it is the opinion of the Commission that an appointment of this relative, if based solely on merit, is not prohibited. Sincerely, JUDICIAL INQUIRY COMMISSION