Did opposing campaign activity and a defeated election opponent's appearance as counsel require recusal?

Short answer No on these facts. The Commission said support or opposition by parties and lawyers alone did not disqualify the judge after the election, absent personal bias or prejudice toward a party.
Bar
JUDICIAL-AL
Issued
December 18, 1998

Apply this to your situation

This page answers the general question as of 1998. 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 Not binding precedent.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

In a pending divorce-modification case, the plaintiff supported the judge's election opponent and engaged that opponent as a third lawyer shortly before the election. Defense lawyers and a partner of another plaintiff lawyer endorsed the judge in a campaign advertisement.

The Commission said political support or opposition by parties and counsel did not itself disqualify the judge. It distinguished an earlier advisory opinion about a candidate first appearing after announcing an upcoming challenge from this already pending case and the post-election setting.

The opinion held no recusal was required on the submitted facts unless the judge actually harbored personal bias or prejudice toward a party arising from that activity. The PDF's second-page heading reads '99-716' although its first page and official index identify Opinion 98-716.

Currency note

This opinion was issued in 1998, 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 counsel's campaign endorsement itself require recusal?

A: No. The Commission treated support and opposition alone as insufficient.

Q: Did the defeated opponent's appearance automatically disqualify the judge after the election?

A: No. The opinion required personal bias or prejudice toward a party on these facts.

Q: Why is the opinion numbered 98-716 here?

A: The official index and first page use 98-716; the second-page heading prints 99-716.

Background and rules framework

The opinion distinguished campaign activity alone from actual personal bias in its recusal analysis. It compared earlier advice about an opposing candidate entering a case during a forthcoming election.

Citations and references

The opinion cites Advisory Opinions 84-213, 84-219, 91-420, 94-520, 95-578, 96-617, and 98-694, among others, and Clontz v. State, 531 So. 2d 60 (Ala. Crim. App. 1988).

See also

Source

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: DECEMBER 18,1998 ADVISORY OPINION 98-716
POLITICAL ACTIVITY OF PARTIES AND
COUNSEL IN CONNECTION WITH
JUDGE'S REELECTION CAMPAIGN
ISSUE
Is ajudge disqualified to hear a case when the
plaintiff engaged the judge's political
opponent as a third co-counsel a few days
before the election and less than two weeks
before the scheduled trial date, the plaintiff
supported the judge's opponent, the
defendant's attorneys endorsed the judge in a
newspaper ad just before the election, and the
law partner of one ofthe plaintiffs attorneys
also endorsed the judge in the same political
ad? Answer: No, unless the judge has an
actual bias or prejudice toward a party in the
case.
FACTS
A petition for modification of a divorce
decree was filed in February 1998,
immediatelyafter the appeals court upheld the
judge's ruling against the plaintiff on an
earlier petition. The plaintiff wrote several
letters to the editor of the local newspaper
expressing views against the judge's decision
at about this time. In May 1998, the plaintiff
filed a motion to recuse, which was denied on
July 2, 1998, after hearing. On July 7, 1998,
the plaintiff filed an amended petition for
modification, which was set for hearing on
July 17, 1998. On July 15, an attorney gave
notice of appearance as co-counsel for the
plaintiff. A continuance to September 17 was
granted to allow additional counsel time to
prepare. Another continuance was requested
on September 3 due to the new attorney
having a scheduling conflict, and the case was
reset to November 10, 1998. On October 30,
the candidate opposing the judge in his
campaign for reelection filed a motion to
appear as a third attorney for the plaintiff, for
the judge's recusal, and for a continuance. At
the hearing of the motion on November 6
(four days after the election), she argued that
the judge should recuse himself because she
had run against him in the recent election,
because the plaintiff had supported her, and
because the defendant's attorneys had
endorsed the judge in a political ad that ran in
the newspaper the weekend before the
election. The law partner of one of the
plaintiffsattorneys also endorsed thejudgein
this ad.
DISCUSSION
The Commission previously has held that a
judge is not disqualified in a proceeding
merely because one of the parties supported
the judge in a campaign for judicial office.
Advisory Opinion 84-213. In Advisory
Opinions91-420and93-511, the Commission
similarly decided that judges were not
disqualified merely because parties were
represented by the judges' reelection
campaign treasurer and/or members of the
judges' reelection advisory committees. The
Commission decided in AdvisoryOpinion 95­
578 that recusal from a pending case was not
required because an attorney in the case
signed as a surety for costs in an action
contesting the judge's reelection. A judge is
not disqualified to hear a case merely because
parties in the case or their counsel have
supported or opposed the judge's candidacy
for reelection.
In AdvisoryOpinion 94-520, the Commission
decided that ajudge should disqualify himself
from any case in which a party is represented
OPINION 99-716
PAGE 2
by an attorney who is a candidate opposingthe
judge in an upcoming election where the
initial appearance of the attorney occurred
after the attorney announced his candidacy,
but that a judge is not automatically
disqualified if an attorney in a pending suit
announces his candidacy against the judge.
However, this opinion did not address the
situation of a candidate in opposition to the
judge entering an appearance in a pending
case. See Advisory Opinion 98-694.
The decision in Advisory Opinion 94-520 was
due, in part, to the principle that a party should
not be able to engage in "judge-shopping" by
manufacturing a basis for disqualification that
previously did not exist. Advisory Opinion
95-578. See, Advisory Opinions 95-548 and
95-586 on the subject of"judge-shopping."
In the present case, the opposing candidate
moved to enter an appearance in a pending
case a few days before the election. The
Commission has previously recognized that
once a ground for disqualification ceases to
exist, recusal is not required unless there are
extraordinary circumstances which cause a
remaining question as to the judge's
impartiality. See, e.g., Advisory Opinion 96­

  1. The Commission also has held that a
    judge is not disqualified merely because the
    defeated political opponent of the judge
    represents aparty in the proceeding. Advisory
    Opinion 84-219. Of course, if a judge
    harbors a personal bias or prejudice toward a
    party because of the political activity of the
    party's attorney in opposition to the judge's
    reelection, then the judge is disqualified.
    Advisory Opinions 84-219 and 95-578. See
    also. Clontz v. State, 531 So.2d 60 (Ala.
    Crim. App. 1988) Uudge was not required to
    recuse himselfwhere defense counsel was the
    judge's political opponent, absent a showing
    ofpersonal bias or prejudice).
    It is the opinion of the Commission that the
    judge is not disqualified in the present case
    unless he harbors a personal bias or prejudice
    toward a party related to the political activity
    ofeither the party or the party's counsel.
    REFERENCES
    Alabama Advisory Opinions 84-213, 84-219,
    91- 420,93-511,94-520,95-548,95-578,95­
    586,96-617, and 98-694.
    Clontz v. State, 531 So.2d 60 (Ala. Crim.
    App.1988).
    This opinion is advisory only and is based on
    the specific facts and questions submitted by
    the judge who requested the opinion pursuant
    to Rule 17 of the Rules of Procedure of the
    Judicial Inquiry Commission. For further
    information, you may contact the Judicial
    Inquiry Commission, 800 South McDonough
    Street, Suite 201, Montgomery, Alabama
    36104; tel.: (334) 242-4089; fax: (334) 240­
    3327; e-mail: [email protected].

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