Did an unsolicited ex parte allegation by a party's relative require the judge to recuse?

Plain-English summary

A visitor claiming to have a hypothetical question insisted on speaking with a judge, then blurted out a factual allegation. The judge later learned the visitor was related to a party in a pending case. The judge disclosed the incident on the record and reported no resulting bias or reason to suspect party involvement.

The Commission said the involuntary encounter did not itself disqualify the judge. Under the opinion's analysis, a litigant or relative could not create recusal merely by making an unwanted statement; disqualification would follow if the judge actually developed personal bias or prejudice.

Canon 3A(4) did not prescribe a remedy for an inadvertent ex parte contact. The Commission found the judge's on-record disclosure appropriate and said no further remedial step was needed on these facts.

Currency note

This opinion was issued in 1999, 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 hearing the unwanted allegation automatically disqualify the judge?

A: No. The Commission required resulting personal bias or prejudice on these facts.

Q: Was the judge's disclosure sufficient?

A: Yes. The opinion said the on-record disclosure was appropriate and no further action was required.

Q: Did the Commission find the party had arranged the contact?

A: No. The submitted facts gave the judge no reason to suspect party involvement.

Background and rules framework

Alabama Canon 3A(4) addressed ex parte contact, but did not specify a remedy for an inadvertent allegation. The Commission applied its earlier recusal analysis to an unsolicited statement by a party's relative and focused on whether it produced personal bias or prejudice.

Citations and references

The opinion cites Alabama Canon 3A(4) and Advisory Opinions 89-391, 92-452, 93-510, 95-574, 97-636, and 97-639, among others.

See also

• AL Judicial Ethics Op. 77-21: Reply to Ex Parte Letter

• AL Judicial Ethics Op. 95-574: Litigant Accusations

Source

• Landing page: Alabama JIC advisory opinions

• Original PDF: Advisory Opinion 99-720

• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: FEBRUARY 19,1999 ADVISORY OPINION 99-720
DISQUALIFICAnON RESULTING FROM
RECEIPT OF EX PARTE
COMMUNICATION
ISSUE
Is ajudge disqualified because he heard an ex
parte allegation of fact by a party's relative
who was attempting to contact the judge
through false pretenses? Answer: No, not
unless the judge developed a personal bias or
prejudice concerning a party as a result.
FACTS
An individual came to the judge's office,
insisting to speak with him about a
hypothetical question. Hearing that the staff
person present was having difficulty getting
the person to understand that the judge could
not talk with him, the judge went out to tell
the person this himself. The person
immediately blurted out an allegation of fact.
The judge later realized that the person was a
relative of a party in a case pending before
him.
The judge has disclosed the facts on the
record. The judge has no reason to suspect
that the party was involved in the relative's
conduct, and he feels no bias or prejudice
toward or against either party as a result.
However, ifthe relative becomes a witness in
the case, the relative's conduct may affect the
judge's assessment ofhis testimony.
DISCUSSION
The Commission has long recognized that a
litigant's actions toward or statements to a
judge during the course of a judicial
proceeding do not cause the judge to be
disqualified unless the judge is actually
influenced and develops a personal bias or
prejudice as a result. Advisory Opinions 89­
391,92-452,95-574,97-636,98-686,98-695,
and 98-703. The Commission is of the
opinion that the same holds true with
regard to actions or statements by persons
related to a party to a proceeding. To hold
otherwise would allow litigants and their
friends and relatives to control judicial
proceedings whenever dissatisfied with the
course ofthe proceeding.
Further, the bias necessary to disqualify a
judge generally must arise from an
extrajudicial source, and involve an opinion
on the merits based on something other than
what the judge has learned from participating
in the case or a related case. Advisory
Opinions 93-510, and 97-639.
Canon 3A(4) does not address the question of
remedy when an ex parte communication
inadvertently occurs. However, it does
provide, with respect to ex parte consultation
of an impartial expert, that the judge should,
where justice requires, give notice to the
parties and afford a reasonable opportunity to
respond. The Commission is of the opinion
that the judge acted appropriately in this case
in disclosing the facts on the record, and that
no further remedial action is required.
REFERENCES
Alabama Advisory Opinions 89-391, 92-452,
93-510,95-574,97-636,97-639,98-686,98­
695, and 98-703.
OPINION 99-720
PAGE 2
Alabama Canons of Judicial Ethics, Canon
3A(4).
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].