When is a justice disqualified from deciding Commission membership while a complaint against that justice is pending?

Plain-English summary

The Supreme Court faced a question about its appointee's place on the Judicial Inquiry Commission. The request asked whether justices could decide the Court's own authority and what changed if a justice had a complaint pending before that Commission.

The Commission said justices generally could sit on this official-capacity question because the appointee had no personal financial stake. A justice who had previously expressed a view on the merits was disqualified under Canon 3C's reasonable-impartiality test.

A justice notified by the Commission or its staff of a pending complaint against that justice was also disqualified from the Commission-membership matter. Hearsay or rumor about a complaint alone was insufficient.

Currency note

This opinion was issued in 1997, 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: Could Supreme Court members decide their own appointment authority?

A: Yes, generally, under the official-capacity facts described.

Q: What if a justice had already stated a view on the merits?

A: The opinion required recusal because the prior statement made impartiality reasonably questionable.

Q: Was rumor of a pending complaint enough?

A: No. The Commission required knowledge from the Commission or its staff.

Background and rules framework

The opinion applied Alabama Canon 3C’s standard for cases in which impartiality might reasonably be questioned. It distinguished an official-capacity appointment issue from prior merits statements and confirmed notice of a personal Commission complaint.

Citations and references

Alabama Canon 3C; Alabama Constitution Amendment 328, as amended, concerning Judicial Inquiry Commission membership.

See also

• AL Judicial Ethics Op. 98-686: Complaint Against Judge and Recusal

• AL Judicial Ethics Op. 97-636: Complaint and Rule 32 Petition

Source

• Landing page: Alabama JIC advisory opinions

• Original PDF: Advisory Opinion 97-679

• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

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

97-679
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
October 3, 1997
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 which determines a fellow Justice’s authority to serve as a member of the Judicial Inquiry Commission and, if so, may a member of the Court who has a complaint pending against him before the Commission, sit upon a matter that directly affects the membership of the Judicial Inquiry Commission? The pending matter concerns a request for an opinion of the justices as to whether the former appointee of the Court to the Commission continues in office until the end of his term or whether the Court should appoint a new member to take his place. It is the opinion of the Commission that the Alabama Canons of Judicial Ethics do not prohibit members of the Alabama Supreme Court from sitting in matters concerning the authority of the Court, except where a justice may have previously stated an opinion as to the proper resolution of the matter. Further, it is the opinion of the Commission that a justice is disqualified from sitting in a matter concerning the makeup of the commission if he knows, from the Commission, that there is a complaint against the justice pending before the Commission. Mere hearsay and rumor are insufficient to cause disqualification. The Court is frequently called upon to decide its own authority within the limits prescribed by the legislature and the constitution. The issue at hand is whether, due to the amending of Amendment 328, as it concerns the makeup of the commission, there exists a vacancy on the Commission as to the court’s appointee. The person presently holding the slot to which the Supreme Court’s appointment is made is a justice of the Supreme Court appointed under Amendment 328. The issue being considered is thus one of the court’s authority to appoint to a position which receives no remuneration, only reimbursement for actual expenses. Since the matter is one which arises in an official capacity context and the justice holding the seat has no personal stake in the outcome, there is no reason to question the court’s ability to sit impartially to decide the issue. However, if any justice has previously expressed an opinion as to the merits of the matter to be decided, then that justice is disqualified in that the previous expression of opinion gives the impression that the justice has already decided the issue and is no longer impartial. That justice is disqualified under the provisions of Canon 3C requiring that a judge is disqualified if “his impartiality might reasonably be questioned.” An expression of opinion as to the merits of the issue causes a judge’s impartiality to reasonably be questioned. 97-679 Page 2 The Commission has previously held that the mere fact that a litigant or other person states that a complaint has been filed with the Commission against a judge does not cause the judge to be disqualified in proceedings involving that litigant or other person. However, if a justice or judge knows that such a complaint is pending in that he or she has been contacted by the Commission or its staff, then disqualification would be required. Yours very truly, JUDICIAL INQUIRY COMMISSION