Could a judge hear a juvenile petition filed by the judge's police-officer son or a case where the son would testify?

Plain-English summary

A family-court judge's son was a police officer who might file juvenile petitions as complaining officer or be subpoenaed in criminal and domestic-relations cases.

The Commission said the judge was disqualified from a petition the son initiated, even if the son would not testify, because he acted as the State's agent in starting the proceeding and could reasonably create an impartiality concern. Canon 3C(1)(d)(iii) separately required recusal if the son was likely to be a material witness.

The opinion defined a material witness as one who would testify to a fact affecting the merits when no other witness could supply that fact. It said disqualification in either stated situation could be remitted under Canon 3D through an independent written agreement signed by all parties and lawyers.

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: Was recusal required if the son filed the juvenile petition but would not testify?

A: Yes. The Commission treated his role initiating the case as sufficient.

Q: Would any subpoena to the son automatically require recusal?

A: No. The opinion asked whether he was likely to be a material witness under its two-part description.

Q: Could the parties remit disqualification?

A: The opinion said yes under Canon 3D, using a written agreement signed independently by all parties and lawyers.

Background and rules framework

Alabama Canon 3C(1) addressed reasonably questioned impartiality; Canon 3C(1)(d)(iii) specifically covered a close relative likely to be a material witness. Canon 3D supplied the remittal procedure described in the opinion.

Citations and references

The opinion cites Alabama Canons 3C(1), 3C(1)(d), and 3D; Advisory Opinions 92-453 and 98-695; 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. 92-453: Judge Listed as Potential Witness

• AL Judicial Ethics Op. 99-741: Mayor Spouse and City Police

Source

• Landing page: Alabama JIC advisory opinions

• Original PDF: Advisory Opinion 99-735

• 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: AUGUST 27, 1999 ADVISORY OPINION 99-735
DISQUALIFICATION WHEN A RELATIVE OF
THEJUDGE IS APOLICE OFFICERINVOLVED
IN THE CASE
ISSUE
Is a judge disqualified to hear petitions in juvenile
court filed by the judge’s son as the complaining
police officer or other cases in which his son is
called to testify as a witness? Answer: A judge is
disqualified to hear petitions filed by his son as the
complainingofficerand other casesin whichhisson
is to the judge’s knowledge likely to be a material
witness, but disqualification in these instances is
subject to remittal.
FACTS
The judge is a circuit judge in his jurisdiction’s
family court division. The judge’s son is an officer
with the local police department. The judge
expects that cases will come before him in which
his son filed the petition in juvenile court, as the
complaining officer. The judge’s son may or may
not be called as a witness to testify in such cases.
The judge’s son may also be subpoenaed to testify
by the State or the defense in criminal and
domestic relations cases assigned to the judge.
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, or an officer, 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)Istothe judge’sknowledge likely
to be a material witness in the
proceeding.
It is the opinion of the Commission that a judge is
disqualified to hear any case initiated by a petition
filed by his son as the complaining officer. If the
judge’s son were to be a material witness in the
case,thejudge’sdisqualificationwouldberequired
by the express terms of Canon 3C(1)(d)(iii).
However, even in those cases in which the judge’s
son is not to be a material witness, it is the son who
would be initiating the proceeding, acting as the
agent of the State, the other party to the
proceeding.
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 parties involved in
juvenileproceedingsmightreasonablyquestionthe
judge’s impartiality when the complaining officer
is the judge’s son even though the judge is not
biased in fact.
ADVISORY OPINION 99-735
PAGE 2
In other cases in which the judge’s son is
subpoenaed as a witness, disqualification depends
on whether the judge’s son is a “material witness.”
The Commission has previously held that a person
is not a material witness unless 1) he will be giving
testimony on a fact affecting the merits of the
cause, and 2) there is no other witness who might
testify to such fact. Advisory Opinions 92-453 and
98-695. Thus, if the judge’s son is the only witness
to a fact affecting the merits of the cause, the judge
is disqualified under Canon 3C(1)(d)(iii) from
hearing a case in which his son is called as a
witness.
Since the judge’s disqualification in either situation
presented is based on the provisions in Canon
3C(1)(d),itissubjecttoremittal underCanon 3D.
The procedure for remittal under Canon 3D
requires a written agreement signed by all the
parties and lawyers in the case that the judge’s
relationship isimmaterial,andthisagreementmust
bemadeindependentlyofthejudge’sparticipation.
REFERENCES
Acromag-Viking v. Blalock, 420 So.2d 60, 61 (Ala.
1982).
Advisory Opinions 92-453 and 98-695.
Alabama Canons of Judicial Ethics, Canons 3C(1),
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].