Must a judge in the Air Force Reserve recuse from cases affecting military retirement, pay, or benefits?

Plain-English summary

A judge serving in the Air Force Reserve asked whether to vote in cases involving military retirement, pay, or benefits. The judge said military retirement would vest in April 1993 if the judge remained qualified and on active reserve status.

The Commission required recusal from any case that could affect those interests. It cited Canon 3C(1)(c), covering a financial interest in the subject matter or another interest that could be substantially affected by the outcome.

Although Canon 3D normally permits remission of that disqualification, the Commission concluded that it should not be waived here. Retirement was due to vest soon, and Canon 2 required conduct promoting public confidence and avoiding even an appearance of impropriety.

Currency note

This opinion was issued in 1992, 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: Does the opinion distinguish retirement from pay or benefits?

A: No. Its recusal conclusion covers any case that could affect the judge’s military retirement, pay, or benefits.

Q: Could the parties waive the disqualification?

A: The Commission said that Canon 3D normally permits remission of a Canon 3C(1)(c) disqualification, but concluded that this disqualification should not be waived under the stated circumstances.

Background and rules framework

The opinion applies Alabama Canons 3C(1)(c), 3D, and 2. It also cites J. Shaman, “Bias on the Bench: Judicial Conflict of Interest,” 3 Georgetown Journal of Legal Ethics 245, 280 (1989), and Aetna Life Insurance Co. v. Lavoie, 106 S.Ct. 1580 (1986).

Citations and references

Alabama Canons of Judicial Ethics:

• Canon 2
• Canon 3C(1)(c)
• Canon 3D

Other authorities cited:

• J. Shaman, “Bias on the Bench: Judicial Conflict of Interest,” 3 Georgetown Journal of Legal Ethics 245, 280 (1989).
• Aetna Life Insurance Co. v. Lavoie, 106 S.Ct. 1580 (1986).

See also

• AL Judicial Ethics Op. 92-445: County Fee Challenge and Recusal

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 92-438
• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

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

92-438
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
February 28, 1992
This is in response to your request for an advisory opinion from the Alabama Judicial Inquiry Commission. Your question is: “I am presently an active member of the Air Force Reserves. My retirement with the military will be vested in April of 1993, provided I remain qualified and on active reserve status. With this knowledge of my affiliation with the military, please advise me if my vote should be precluded in cases which come before this court that deal with (1) military retirement and/or (2) military retirement pay and/or benefits.” It is the opinion of the Commission that your recusal is required in any case which could affect your military retirement, pay, or benefits. “It is well settled that a judge is disqualified from presiding over any case in which he or she has a financial or property interest that could be affected by the outcome of that case.” J. Shaman, Bias on the Bench: Judicial Conflict of Interest, 3 Georgetown Journal of Legal Ethics 245, 280 (1989). See also, Aetna Life Insurance Co. v. Lavoie, 106 S.Ct. 1580 (1986). Canon 3C(l)(c) of the Alabama Canons of Judicial Ethics provides that a judge should disqualify himself in a proceeding in which “[h]e knows that he, . . . has a financial interest in the subject matter in controversy . . . or any other interest that could be substantially affected by the outcome of the proceeding.” Normally, a disqualification under Canon 3C(l)(c) may be remitted as provided by Canon 3D. However, under the particular circumstances of this case, especially the fact that your retirement will vest in the near future, it is the opinion of the Commission that your disqualification should not be waived because of the provisions of Canon 2. Under Canon 2 a judge must conduct himself in a manner which promotes public confidence in the integrity and impartiality of the judiciary avoiding even the appearance of impropriety. The Commission thanks you for your inquiry. Respectfully,