containing no discussion of the appearance of impropriety standard or what circumstances might lead a reasonable person to question a judge's impartiality; decided before the Code of Judicial Conduct was even developed
How later courts described this case
- containing no discussion of the appearance of impropriety standard or what circumstances might lead a reasonable person to question a judge's impartiality; decided before the Code of Judicial Conduct was even developed
- "The holding of prose-cutorial office as distinguished from working on a concrete piece of litigation is not alone disqualifying for one who later becomes a judge."
Written by the judges who cited it.
The opinion
ON REHEARING
CATES, Judge.
We have received the following letter from counsel for appellant:
“In the opinion in this case rendered February 8, 1972, I note that John C. Tyson, III, concurred.
“It is known that Mr. Tyson was a member of the staff of the Attorney *408 General. I do not know whether or not he was a member when the brief was prepared for the State of Alabama in this case back in March of 1969.
“However, I would respectfully question the ethics of any judge passing on a matter which was in the office of the attorney general during the period he was there, whether or not he actually participated in preparation of the brief.
“I am, of course, not critical, but as a member of the Bar I do believe our Courts should avoid any possibility of criticism. This does seem possible in this situation.”
Judge Tyson, as an Assistant Attorney General, was not assigned to criminal work after mid January, 1967. We do not consider that there is any ground— statutory, common law or ethical — which in this cause requires that Judge Tyson recuse himself.
The Attorney General and his staff are more than mere legal advisers. Thus, they have the power, in the interest of justice, to confess error. The Attorney General is a public servant whose office is created by the constitution; he is selected by the voters from the state at large. Cons. 1901 §§ 114 and 137, Code 1940, T. 55, §§ 228-244, as amended. He and his staff are paid by salaries, not fees.
Hence, notions of conflict of interest arising from being counsel in private litigation are not present. We do have constitutional and statutory grounds for judicial disqualification: Const. § 160 and Code 1940, T. 13, §§ 6 and 7. They are not here applicable.
The basic guideline — aside from the specific ordainments, supra — rests on the common law principle that no judge ought to act where from interest or any other cause, he is supposed to be partial to one of the suitors. Here we perceive no reason to impute a cause of bias. Thus, we readily distinguish Ex parte Cornwell, 144 Ala. 497 , 39 So. 354 .
The holding of prosecutorial office as distinguished from working on a concrete piece of litigation is not alone disqualifying for one who later becomes a judge. Thus, in 46 Am.Jur.2d, Judges, (p. 219) we find:
Ҥ 193. As attorney general.
“A judge hearing an appeal is not required to disqualify himself because he had, as attorney general, rendered an opinion concerning one of the points involved in the litigation. Generally, a judge who had been employed in the office of the attorney general is not disqualified to sit on a case involving a party who had been up before the attorney general. Nor is a judge disqualified where the case before him, in which the state is a party, was under study while he was a deputy attorney general but was not assigned to him then or otherwise brought to his attention.
“A supreme court judge who, before his elevation to the bench, was attorney general when a criminal case was tried but had nothing whatever to do with the trial, is not disqualified from hearing the case on appeal. Similarly, an attorney general who permitted the institution of quo warranto proceedings on relation of the attorney general, but who took no personal or official part in the litigation, is not disqualified to hear the case as a supreme court judge.” (footnotes omitted.)
In State by Kobayashi v. Midkiff, 49 Haw. 252 , 413 P.2d 249 , the Supreme Court of that State issued the following syllabus:
“A judge is not disqualified in a case in which the State is a party merely by reason of having been a deputy attorney general while the case was in preparation and under study, when it was not assigned to him and he had no knowledge of it.”
This seems proper to us with the qualification that the disqualifying knowledge of *409 the case must be more than mere awareness of the pendency of the matter.
Needless to say Judge Tyson has refrained from taking part in this extension of opinion.
Application for rehearing
Overruled.