Did the Commission originally require recusal because a county commission could grant judges a salary increase?

Short answer Yes. Opinion 90-406 required recusal while the commission had unexercised discretionary authority to grant a salary increase. The official PDF is marked overruled by Opinion 91-416, which held that a pending or granted local supplement alone did not require recusal.
Bar
JUDICIAL-AL
Issued
September 27, 1990

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This page answers the general question as of 1990. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.

Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A statute gave a county commission discretionary authority to grant judges a $10,000 salary increase. The judge asked whether unexercised authority required recusal when the county commission was a party.

The 1990 Commission reaffirmed Opinion 89-380 and required recusal. It viewed the possible salary increase as a financial interest that could cause a reasonable question about impartiality. It said Canon 3D remission was available for the Canon 3C(1)(c) disqualification.

The official PDF is marked “Overruled by 91-416.” In that later opinion, the Commission said a pending or granted local salary supplement alone did not disqualify a judge in a county-commission case, though additional circumstances might.

Currency note

The official 1990 PDF is marked “Overruled by 91-416.” Opinion 91-416, issued April 30, 1991, rejected recusal based on a local salary supplement alone. The Alabama Supreme Court adopted the Alabama Canons of Judicial Ethics in 1975. Treat this page as historical context and check the later opinion and current Canons.

Common questions

Q: What did the original 1990 opinion decide?

A: It required recusal while the county commission held unexercised discretion to grant the judge a salary increase.

Q: Does that rule remain the Commission’s stated position?

A: No. Opinion 91-416 expressly overruled 90-406 and rejected recusal based on the supplement alone.

Q: Did the 1990 opinion discuss remission?

A: Yes. It said the original Canon 3C(1)(c) disqualification could be remitted under Canon 3D.

Background and rules framework

The original opinion applies Canons 3C, 3C(1)(c), and 3D and reaffirms Advisory Opinion 89-380. Its rule was overruled by Opinion 91-416, linked below.

Citations and references

Alabama Canons of Judicial Ethics:

  • Canon 3C
  • Canon 3C(1)(c)
  • Canon 3D

Other authorities cited:

See also

Source

Original opinion text

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

90-406
[Overruled by 91-416]
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 proceeding in which the county commission is a party and the legislature by statute has granted the county discretionary authority to grant the judges of the circuit a
$10,000 salary increase. In addressing this opinion request, you ask the Commission to reconsider Advisory opinion 89-380. In that opinion, the Commission found that the existence of unexercised specific discretionary authority in the county commission to grant a salary increase for judges caused the disqualification of a judge in all pending matters in which the county is a party. The Commission has considered your request for an opinion and hereby reaffirms Advisory Opinion 89-380. A judge is disqualified in matters in which the county commission is a party and there exists unexercised specific statutory discretionary authority to the county commission to grant the judge a salary increase. This opinion is based upon the provisions of Canon 3C. Canon 3C provides in pertinent part as follows: (1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:


(c) He knows that he, ... has a financial interest ... in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding; The test for judging disqualification is set out by our Supreme Court in In re Sheffield, 465 So.2d 350 (Ala. 1984). There the court held that disqualification occurs where a man of ordinary prudence, who is a litigant, lawyer, or member of the public, has sufficient grounds to reasonably question the judge’s impartiality. In the present instance, the judge’s interest in a salary increase constitutes a “financial interest ... in a party to the proceeding” which could cause a man of ordinary prudence to reasonably question the judge’s impartiality. We note further, however, that when Canon 3C(l)(c) is the basis of initial disqualification, it may be remitted under the provisions of Canon 3D as follows: 90-406 Page 2 D. A judge disqualified by the terms of Canon 3C(l)(c) or Canon 3C(l)(d) may, instead of withdrawing from the proceeding, disclose in the record the basis of his 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 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. Sincerely, JUDICIAL INQUIRY COMMISSION

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