Must a judge recuse after using a pending case as an example of courage during a judicial campaign?

Plain-English summary

While a disputed statewide case remained pending, its judge campaigned for another judicial position and referred to the case as an example of willingness to decide hard issues. The opponent also criticized the judge’s orders during the campaign, which drew statewide coverage.

The Commission concludes that the judge must leave the case under Canon 3C. It considers the whole set of circumstances, including the judge’s public account of the case and the possibility of reconsidering issues highlighted in the campaign. It says no single circumstance alone necessarily required recusal and no actual bias was shown, but together the facts supplied a reasonable basis to question impartiality.

Currency note

This opinion was issued in 1995, 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 Commission find actual bias?

A: No. It says a reasonable appearance of partiality can require disqualification without a showing of actual bias.

Q: Was one campaign statement alone the basis for recusal?

A: No. The Commission based its conclusion on the totality of the described circumstances.

Background and rules framework

The opinion quotes Canon 3C’s standard for a reasonable question about impartiality and cites Matter of Sheffield for the ordinary-prudence test. It also discusses the risk that parties may try to manufacture grounds for disqualification.

Citations and references

Alabama Canons of Judicial Ethics:

• Canon 3C.

Cases:

• Matter of Sheffield, 465 So.2d 350 (Ala. 1984), reasonable basis for questioning impartiality.

See also

• AL Judicial Ethics Op. 95-578: Election Contest
• AL Judicial Ethics Op. 96-592: Custody Petition

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 95-575
• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

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

95-575
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
August 18, 1995
The Judicial Inquiry Commission has considered your request for an opinion concerning whether a judge is disqualified from sitting in a case under certain circumstances. A Motion for Disqualification has been filed by one of the parties in a case that has been pending for some time. The case involves legal and factual matters affecting the entire citizenry of this state and is heavily disputed among different factions. During the pendency of the litigation the judge became a candidate for another judicial position. During the campaign, the judge, at a minimum by inference, referred to this case as an example of his courage and willingness to decide tough issues where other branches of government had failed to do their jobs or provide leadership. (The head of at least one other such branch is a party to the lawsuit). Also during the campaign, the judge’s opponent, at a minimum also by inference, referred to the case, criticizing the judge’s orders. The judicial campaign was for a state-wide office and had extensive state-wide media coverage. It is the opinion of the Commission that, the judge is disqualified from continuing to sit in the case described. This opinion is based on Canon 3C of the Alabama Canons of Judicial Ethics and on the entire circumstances of the case, including but not limited to the above factors. In pertinent part Canon 3C requires as follows: A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned.... In deciding disqualification under Canon 3C two interests are paramount, the interest in justice in any given case and the importance of preserving public confidence in the judicial system. L. Abramson, Judicial Disqualification Under Canon 3C of the Code of Judicial Conduct, (American Judicature Society, 1986). The Commission is also cognizant of the fact that Canon 3C must be applied and enforced to avoid judge shopping such that it must be difficult for parties by their own action to create facts requiring disqualification. Recognizing these factors, the standard for disqualification under Canon 3C here is whether under the above circumstances, a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would find that there is a reasonable basis for questioning the judge’s impartiality. Matter of Sheffield, 465 So.2d 350 (Ala. 1984). 95-575 Page 2 In the circumstances of this case, the judge is familiar with the political campaign. He is also familiar with strong disputes among different factions of citizenry as to how the matter should be resolved. He used his presiding in the case as an example of his courage and judicial leadership. The case is still pending. Those issues on which he publicly declared his courage and leadership are now being presented to him for reconsideration. This case, although not by name, has been part of a judicial political campaign in a year when statewide judicial political campaigns brought the dignity of the judicial office to a new low in the eyes of the bar and the public. While no one circumstance standing alone might require disqualification, all of these factors when considered together reach that level of facts providing a reasonable basis for questioning the judge’s impartiality. Although no actual bias is shown, none is required where the facts as presented indicate a reasonable basis for the appearance of partiality. In the instant case, justice may be preserved while preserving public confidence in the judicial system through the disqualification of the judge in question. Under these circumstances, it is the opinion of the Commission that disqualification is required.