Could a judge hear a suspended-sentence revocation motion based on a report prepared by the judge's probation-officer sister?

Plain-English summary

The judge's sister directed a county work-release program and was its only probation officer. She prepared deficiency reports that supported motions to revoke suspended misdemeanor sentences, even where the district attorney formally filed a motion.

The Commission required recusal from any motion based on the sister's report. If she was a material witness, Canon 3C(1)(d)(iii) expressly applied. Even if she was not, she initiated the matter as a State agent and had an interest as program director, so a defendant facing possible loss of liberty could reasonably question impartiality.

The opinion said the disqualification was remittable under Canon 3D through an independent written agreement by all parties and lawyers that the relationship was immaterial.

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 recusal depend on the sister testifying?

A: No. Her report and role initiating the matter required recusal even if she would not be a material witness.

Q: Would filing by the district attorney remove the concern?

A: No. The motion still rested on the sister's deficiency report.

Q: Did the opinion permit remittal?

A: Yes, under Canon 3D's written agreement procedure described in the opinion.

Background and rules framework

Alabama Canon 3C(1)(d) addressed a close relative's substantial interest or likely role as material witness. The general Canon 3C(1) standard also covered reasonable questions about impartiality. Canon 3D supplied the remittal procedure.

Citations and references

The opinion cites Alabama Canons 3C(1)(d) and 3D; Acromag-Viking v. Blalock, 420 So. 2d 60 (Ala. 1982); and Matter of Sheffield, 465 So. 2d 350 (Ala. 1984).

See also

• AL Judicial Ethics Op. 99-735: Police Officer Son as Complainant

• AL Judicial Ethics Op. 92-453: Potential Witness

Source

• Landing page: Alabama JIC advisory opinions

• Original PDF: Advisory Opinion 99-730

• 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: JUNE 11, 1999 ADVISORY OPINION 99-730
DISQUALIFICATIONWHENARELATIVE
OF THE JUDGE IS A PROBATION
OFFICER
ISSUE
Is a judge disqualified to hear motions to set
aside a suspended sentence when the
individual making or otherwise initiating the
motion is a probation officer related to the
judge within the fourth degree of
consanguinity or affinity? Answer: Yes, but
this disqualification is subject to remittal.
FACTS
The county in which the judge sits has a
communitycorrections programthatprovides,
among other things, countyprobation services
formisdemeanoroffenders. Thejudge’ssister
is the director of the county’s work release
program. At the present time, she is the only
probation officer employed in the program. If
the sentence of a defendant convicted of a
misdemeanor is suspended conditioned on
compliance with certain orders of the court
and the defendant fails to comply with those
orders, the work release director, as a
probation officer, prepares a deficiencyreport
and moves the court to set aside the suspended
sentence. The motion could be made by the
district attorney, but the basis of the motion
would be the deficiencyreport prepared bythe
judge’s sister. Most frequently, the deficiency
reports issued in such cases list failure to pay
as ordered, failure to complete some required
program, failure to report, or commission of
some other offense as the grounds to set aside
the suspended sentence. The deficiencynoted
may not always require the judge’s sister to be
a material witness.
DISCUSSION
Disqualification is governed by Canon 3C(1),
which provides the following, in pertinent
part:
A judge should disqualify himself in a
proceeding in which his ... impartiality
might reasonably be questioned,
including but not limited to instances
where:
(d) He or his spouse, or a person
within the fourth degree of
relationship to either of them, or the
spouse of such a person:
(i) Is named a party to the
proceeding,oranofficer,director,
or trustee of a party;
(ii) Is known to the judge to have
an interest that could be
substantially affected by the
outcome of the proceeding;
(iii) Is to the judge’s knowledge
likely to be a material witness in
the proceeding.
It is the opinion of the Commission that a
judge is disqualified to hear any motion to set
aside a suspended sentence that is based on a
deficiency report prepared by the judge’s
sister. If the judge’s sister were to be a
material witness in the hearing on such a
motion, the judge’s disqualification would be
required by the express terms of Canon
3C(1)(d)(iii). However, even in those cases in
which the judge’s sister is not to be a material
witness, under the facts presented, it is the
OPINION 99-730
PAGE 2
sister who would be initiating the proceeding
andpreparingtheassociateddeficiencyreport.
She is acting as the agent of the State, the
other party to the proceeding, in
recommending revocation of probation. In
addition, as the director of the probation
program, she has an interest in the proceeding
that could be substantially affected by its
outcome.
The Commission also notes that recusal is
required under Canon 3C(1) when “facts are
shown which make it reasonable for members
of the public or a party, or counsel opposed to
question the impartiality of the judge.”
Acromag-Viking v. Blalock, 420 So.2d 60, 61
(Ala. 1982). The recusal test stated in Canon
3C(1) may sometimes bar trial by judges who
have no actual bias. Matter of Sheffield, 465
So.2d 350, 356 (Ala. 1984). It is the opinion
of the Commission that a criminal defendant
faced with the potential loss of liberty by a
recommendationfromthejudge’s sistermight
reasonably question the judge’s impartiality
even though the judge was not biased in fact.
Since the judge’s disqualification is based on
the provisions in Canon 3C(1)(d), it is subject
to remittal under Canon 3D. The procedure
forremittalunderCanon3Drequires awritten
agreement signed by all the parties and
lawyers in the case that the judge’s
relationship is immaterial, and this agreement
must be made independently of the judge’s
participation.
REFERENCES
Acromag-Viking v. Blalock, 420 So.2d 60, 61
(Ala. 1982).
Alabama Canons of Judicial Ethics, Canons
3C(1)(d) and 3D.
Matter of Sheffield, 465 So.2d 350, 356 (Ala.
1984).
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].