Must a criminal judge recuse because the defendant previously sued the judge and now challenges indigent-defense funding?

Plain-English summary

A criminal defendant had unsuccessfully sued the judge over judicial conduct and was pursuing a separate official-capacity challenge to Alabama’s indigent-defense funding. The pending case sought no money damages from the judge.

The Commission found neither lawsuit required disqualification on the stated facts. It treated the resolved suit as insufficient by itself and compared the funding challenge to efforts to test a trial ruling through mandamus or appeal.

The opinion preserved Canon 3C’s limit: actual personal bias against the defendant, or other facts reasonably questioning impartiality, would require recusal.

Currency note

This opinion was issued in 1989, 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: Did either lawsuit automatically disqualify the judge?

A: No. The Commission found no disqualification on the described facts.

Q: What would change the answer?

A: Personal bias or another factor causing impartiality to be reasonably questioned would require recusal.

Background and rules framework

The opinion applies Canon 3C and cites Alabama JIC Advisory Opinions 88-326, 86-273, and 83-176 on prior suits against judges for judicial acts.

Citations and references

Alabama Canons of Judicial Ethics:

• Canon 3C

Other authorities cited:

• Alabama JIC Advisory Opinions 88-326, 86-273, and 83-176, prior judicial-act suits and recusal.

See also

• AL Judicial Ethics Op. 90-403: Custody Litigant’s Suit Against Judge

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 89-383
• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

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

89-383
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
October 2, 1989
The Judicial Inquiry Commission has considered your request for an opinion concerning whether under the Alabama Canons of Judicial Ethics a judge is disqualified from sitting in a criminal proceeding wherein the defendant has previously unsuccessfully sued the judge in federal court under 42 USC 1983 and is presently suing the judge in his official capacity in a test case challenging the indigent defense system in Alabama. There is no demand for money damages in the presently ongoing civil case in which the criminal defendant claims that the indigent defense available to him from the state is constitutionally inadequate. The judge has been asked to disqualify himself in the criminal action. It is the opinion of the Commission that under the described circumstances the judge is not disqualified. This opinion is based on Canon 3C of the Alabama Canons of Judicial Ethics and the previ6u.5 opinions of the Commission. On at least three different occasions this Commission has spoken to the issue of whether under Canon 3C a judge is disqualified from sitting in a proceeding where a party has previously sued the judge. See advisory opinions 88-326, 86273 and 83-

176. In each instance, the Commission has failed to find disqualification where the
     previous action against the judge was resolved in the judge's favor and was based on the judge's performance in his judicial capacity. Therefore, it is the opinion of the Commission that the previously disposed of lawsuit filed by this defendant does not alone present any ethical impediment causing the judge's disqualification. The second lawsuit alleged as a ground for disqualification presents a slightly different concern. However, that suit is in the nature of a declaratory judgment seeking to require additional state defense funds for the criminal accused. Thus, the lawsuit is more analogous to a mandamus or a pretrial appeal by the defendant seeking to have the judge ordered to provide him with defense funds to which he believes he is entitled. Such actions are sometimes necessary to test the accuracy of a trial court's rulings and are not of such a nature as to require disqualification. The Commission therefore does not find disqualification to exist based on the facts presented. However, while no disqualification exists based on the facts presented, the judge should be ever mindful of the provisions of Canon 3C. If he should develop any personal bias or prejudice against the defendant-based on the defendant's action or if any other factor exists which causes his impartiality to reasonably be questioned, then the judge should disqualify himself. The Commission does not find any such factors to exist in the facts as stated.