Alabama Advisory Opinions December 26, 2017: AGO 2018-013 (December 26, 2017)

Advisory Opinion Text

Honorable Mark S. Nelson

Municipal Judge

Talladega Municipal Court

407 Court St. South

Talladega, Alabama 35160

Municipalities - Municipal Judges -Candidates - Probate Judges - Leaves of Absence

A part-time municipal judge is not required to resign or take a leave of absence in order to qualify and run for the office of probate judge.

Dear Judge Nelson:

This opinion of the Attorney General is issued in response to your request.

QUESTION

Is a part-time municipal judge required to resign or take a leave of absence without pay in order to qualify and run for the office of probate judge?

FACTS AND ANALYSIS

Your request states that you are currently serving a two-year appointment as a part-time municipal judge for the City of Talladega, which is located in Talladega County. You state further that you plan to qualify and run for the office of probate judge of Talladega County in January of 2018. Because you will still be serving as a municipal judge at that time, you are concerned that you would be required to either resign your position as municipal judge or take an unpaid leave of absence before qualifying and running for the office of probate judge.

Section 17-1-4 of the Code of Alabama governs the political conduct of city, county, and state employees, safeguarding certain political conduct but also adding requirements for city and county employees running for political positions within the governmental entity with which they are employed. Ala. Code § 17-1-4 (2006). Section 17-l-4(b) states as follows:

(b) Notwithstanding Section 17-17-5, any employee of a county or a city, whether in the classified or unclassified service, who qualifies to seek a political office with the governmental entity with which he or she is employed, shall be required to take an unpaid leave of absence from his or her employment, or use accrued overtime leave, or use accrued vacation time with the county or city from the date he or she qualifies to run for office until the date on which the election results are certified or the employee is no longer a candidate or there are no other candidates on the ballot. For purposes of this subsection, the term "employing authority" means the county commission for county employees or the city council for city employees. Any employee who violates this subsection shall forfeit his or her employment position. In no event shall this subsection apply to elected officials.

Ala. Code § 17-1 -4(b) (2006) (emphasis added). This provision requires city and county employees to take a leave of absence or use accrued leave when running for positions within the governmental entity with which they are employed.

This Office has stated that "[a] municipal judge is an officer of the municipality." Opinion of the Attorney General to Honorable Charles E. Osborne, Mayor, City of Talladega, dated April 5, 2002, A.G. No. 2002-202 at 2, citing Zanda v. City of Decatur, 628 So.2d 427 (Ala. 1993). Furthermore, this Office has explained that section 17-1-4(b) [then codified as section 17-1-7(d)] does not apply to public officials, including those defined in section 36-25-1(27) of the Code of Alabama as "appointed to a position at the state, county or municipal level of government." Opinion of the Attorney General to Honorable Charles R. Stephens, Attorney, Walker County Civil Service Board, dated June 23, 2005, A.G. No. 2005-156. Accordingly, because a municipal judge is not an "employee" as that term is used in section 17-l-4(b), such public official is not subject to that provision's leave-of-absence requirement.

Even if a municipal judge were to be considered an "employee" under section 17-1-4(b), he or she would not be required to take a leave of absence to run for the office of probate judge because a municipal judge is not a county employee. By its plain language, section 17-l-4(b)'s leave-of absence requirement only applies when a city or county employee seeks an office "with the governmental entity with which he or she is employed." Ala. Code § 17-1-4(b) (2006). "[T]he probate judge's office is part of the county government." Opinion of the Attorney General to Honorable Tom Burleson, Cullman County Probate Judge, dated August 24, 2000, A.G. No. 2000-221 at 2.

Comparable to section 17-1 -4(b), section 147(b) of the Recompiled Constitution of Alabama provides that "[n]o judge, except a judge of a probate court, shall seek or accept any nonjudicial elective office, or hold any other office of public trust, excepting service in the military forces of the state or federal governments." Ala. Const, art. VI, § 147(b) (amend 328). This provision requires a judge seeking office to resign rather than merely take an unpaid leave of absence. Section 145 of the Recompiled Constitution of Alabama, however, specifically excludes municipal judges from the prohibitions set out in section 147, including the prohibition against seeking or accepting nonjudicial elective offices. Ala. Const, art. VI, § 145 (amend 328).

In addition, section 147(b) only applies when a judge runs for a nonjudicial office. Canon 7A(2) of the Canons of Judicial Ethics parallels section 147(b), but makes it more expressly clear that judges may run for judicial offices without resigning, stating as follows:

A judge shall resign his or her office when the judge becomes a candidate either in a political primary or in a general election for nonjudicial office, except that the judge may continue to hold judicial office while being a candidate for election to any judicial office or while being a candidate for election to a state constitutional convention or commission.

Ala. Canon Jud. Ethics 7A(2).

Although a probate judge performs administrative and executive functions, the position of probate judge cannot be considered a "nonjudicial" office as it requires the performance of judicial functions requiring adherence to the Canons of Judicial Ethics. See Alabama Judicial Ethics Opinion 85-234, 1985 WL 1157786 (June 5, 1985), at 1 ("While a probate judge is not charged with complying with the Canons in the performance of the administrative and executive duties of the probate office, he is charged with complying when he exercises duties which pertain to his judicial office, i.e., appointment of guardians ad litem.").

Interpreting West Virginia's materially identical constitutional provision and canon of judicial ethics requiring judges to resign before seeking nonjudicial offices, the Supreme Court of Appeals of West Virginia held that a circuit clerk was not a "judicial officer" under these provisions and, accordingly, a judge running for the office of circuit clerk was required to resign his or her position. Feltz v. Crabtree, 370 S.E.2d 619, 620 (W.Va. 1988). The Feltz Court reasoned that a circuit clerk, although part of the judicial branch of government, did not exercise judicial power and did not fall within the list of "justices, judges, and magistrates" subject to the Code of Judicial Ethics. See also Mississippi Commission on Judicial Performance v. Ishee, 627 So.2d 283, 287-88 (Miss. 1993) (The Supreme Court of Mississippi held that the office of circuit clerk is not a judicial office for purposes of Canon 7A(3) of the Code of Judicial Conduct of Mississippi Judges because it is not a "judgeship."). Conversely, because a probate judge exercises judicial power and is governed by applicable canons of judicial ethics, the office of probate judge cannot be considered a "nonjudicial office" under section 147. Therefore, that provision does not require a judge to resign before running for probate judge.

Any question regarding applicability of Canon 7A(2) of the Canons of Judicial Ethics should be directed to the Judicial Inquiry Commission.

CONCLUSION

A part-time municipal judge is not required to resign or take a leave of absence in order to qualify and run for the office of probate judge.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact John Porter of my staff.

Sincerely,

STEVE MARSHALL, Attorney General

G. WARD BEESON, III Chief, Opinions Section