Must a judge recuse from a zoning-board appeal when a cousin serves on the city council that appoints board members?

Plain-English summary

The judge heard an appeal from an autonomous municipal zoning board. The judge’s cousin served on the city council that appointed board members. The Commission found no disqualification on those facts alone.

Canon 3C(1)(d)(ii) would require recusal if the cousin had an interest that could be substantially affected by the appeal’s outcome. The opinion says that disqualification could be remitted under Canon 3D.

Currency note

This opinion was issued in 1993, 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 council appointment role alone disqualify the judge?

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

Q: What would change the result?

A: A cousin’s interest that the appeal could substantially affect.

Q: Could that disqualification be remitted?

A: Yes. The opinion says Canon 3D permits remission.

Background and rules framework

The opinion applies Canon 3C(1)(d)(ii) to a relative’s affected interest and Canon 3D to remission.

Citations and references

Alabama Canons of Judicial Ethics:

• Canon 3C(1)(d)(ii), Canon 3D.

Other opinions cited:

• Alabama JIC Opinions 92-426, 88-322, and 79-59 are cited by analogy to relatives’ public employment.

See also

• AL Judicial Ethics Op. 94-523: Ex Parte Contacts

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 93-504
• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

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

93-504
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
September 24, 1993
This is in response to your request for an advisory opinion from the Judicial Inquiry Commission. Your question is whether you are disqualified under the following circumstances: Pending in your court is an appeal of a decision of the municipal board of zoning adjustment. Except for the facts that the members of the zoning board are appointed by the city council and are reimbursed for expenses, the board is autonomous of the council. Your cousin, who is related within the fourth degree of kinship, is a member of the city council. It is the opinion of this Commission that you are not disqualified under these facts. However, you would be disqualified if your cousin, the council member, had an interest that could be substantially affected by the outcome of the appeal. Canon 3C(l)(d)(ii). In Advisory Opinion 92-426, this Commission held that a judge is not disqualified to preside over a case in which the city is named as a party merely because the judge’s spouse is employed as the library director for the city-county public library and is paid as a city employee. In Advisory Opinion 88-322, this Commission held that the fact that a judge’s wife is a teacher employed by a city board of education does not per se cause the judge’s disqualification in all proceedings in which the city board of education is a party. See also Advisory Opinion 79-59 (Where the daughter or other close relative of a judge has a summer job as a clerk with the Tax Board of Equalization and appeals from the judgments of the Board are presently pending before the judge, the judge should disclose in the record the fact of his daughter’s employment and should then disqualify himself unless the parties agree in writing that the judge’s relationship is immaterial.). Even if a disqualification arises because your cousin has an interest that could be substantially affected by the outcome of the appeal of the decision of the board of zoning adjustment, that disqualification may be remitted as provided by Rule 3D. This Advisory Opinion has been considered by the Commission and is the opinion of the Judicial Inquiry Commission.