Does a custody litigant’s federal motion to add the state judge as a defendant automatically disqualify the judge?

Plain-English summary

In a child-custody matter, a litigant filed a federal motion seeking to add the state trial judge and judicial system as defendants after the judge entered a temporary custody order. The judge asked whether that filing disqualified him from the state case.

The Commission said the filing alone did not cause disqualification. It reaffirmed earlier opinions holding that a litigant cannot select a different judge simply by suing over the judge’s actions in a pending case.

The opinion left room for recusal on other facts. It gave actual personal bias or prejudice caused by the litigant’s actions as an example requiring disqualification under the Canon 3C framework.

Currency note

This opinion was issued in 1990, 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 the motion to add the judge automatically require recusal?

A: No. The Commission said the filing by itself was insufficient.

Q: Could events following the filing still require recusal?

A: Yes. The Commission gave actual personal bias or prejudice as an example of another circumstance that could require disqualification.

Background and rules framework

The opinion applies Alabama Canon 3C’s reasonable-question standard and cites Commission Advisory Opinions 77-29, 83-176, and 86-273.

Citations and references

Alabama Canons of Judicial Ethics:

• Canon 3C

Other authorities cited:

• Alabama JIC Advisory Opinions 77-29, 83-176, and 86-273, suits challenging judges’ actions in pending matters.

See also

• AL Judicial Ethics Op. 91-413: Partnership Bankruptcy and Post-Trial Recusal

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 90-403
• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

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

90-403
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
September 27, 1990
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 certain proceeding. The proceeding is a matter involving the custody of a child. One of the parties to the proceeding has filed a lawsuit in federal court against the State of Alabama and certain local Departments of Human Resources concerning their participation in the custody of the child in question. The state trial judge entered a Temporary Order leaving the custody of the child in the Department of Human Resources. The judge then received a copy of a pro se “Motion to Add Defendants” which had been filed in the pending federal lawsuit after his temporary order had been entered in the state proceedings. The “Motion to Add Defendants” was filed by one of the child custody litigants and seeks to add both the state trial judge and the Unified Judicial System as parties defendant in the federal proceedings. The question before the Commission is whether under these facts the state trial judge is disqualified. Judicial disqualification is governed primarily by Canon 3C of the Alabama Canons of Judicial Ethics. In pertinent part, that Canon provides: “A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned ...” In applying this provision, the Commission has found that the mere filing of a lawsuit against a judge by a litigant where the lawsuit against the judge is based on the judge’s actions in a pending matter is insufficient to cause the judge’s disqualification. See Advisory Opinions 77-29, 83-176 and 86-273. To hold otherwise would allow a litigant to control the selection of his trial court judge by challenging the state trial judge’s judicial actions in a federal forum. Thus, to base disqualification on such actions by litigants could cause orderly court processes to become chaotic. The Commission hereby reaffirms its prior finding that the mere filing of a lawsuit by a litigant before a judge does not cause the judge’s disqualification. However, other facts and circumstances might exist which could cause disqualification. For instance, should the litigant’s actions cause the judge to develop an actual “personal bias or prejudice” toward the litigant, disqualification would be required. Sincerely, JUDICIAL INQUIRY COMMISSION