Alabama Advisory Opinions November 15, 2005: AGO 2006-029 (November 15, 2005)

AGO 2006-029.

Dear Judge Smallwood:

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

Can a circuit judge who is eligible to retire, but ineligible to run for a judicial office because of age, be a candidate for a legislative office or another state office while continuing to serve as a circuit judge?

Section 147 of the Recompiled Constitution of Alabama, as derived from § 6.08 of Amendment 328, sets forth prohibited activities of a judge of any court in this state. Section 147(b) states 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 (amend. 328, § 6.08) (emphasis added). Section 147 of the Constitution of Alabama, as amended, prohibits a sitting judge from being a candidate for a nonjudicial office.

Canon 7 of the Alabama Canons of Judicial Ethics concerns campaign activity by judges and candidates for judicial office. You should contact the Alabama Judicial Inquiry Commission regarding the applicability of Canon 7 or any other judicial rules that may be applicable to your question.

Section 147 of the Constitution of Alabama, as amended, prohibits a circuit judge who is eligible to retire, but ineligible to run again for judicial office because of age, from being a candidate for a nonjudicial office while serving as a circuit judge.

If not, when must such judge leave the bench to be a candidate, before the primary or before the general election?

The statutes and constitutional provisions regarding judges do not speak to when a judge must leave his or her judicial position to run for a nonjudicial office. A person becomes a "candidate" for purposes of the Fair Campaign Practices Act by: (1) filing qualifying papers to run for office, or (2) before qualifying papers are filed, by receiving contributions or making expenditures at or above threshold amounts with a view toward bringing about his or her nomination or election.

Ala. Code § 17-22A-2(a)(1) (Supp. 2004); s ee also, the opinion of the Attorney General to Honorable Bobby G. Day, Probate Judge, Morgan County, dated August 24, 2005, A.G. No. 2005-187. Section 17-22A-2(a)(1) of the Code further defines "candidate" as "[a]n individual who has done any of the following: a. Taken the action necessary under the laws of the state to qualify himself or herself for nomination or for election to any state or local office . . .

Ala. Code § 17-22A-2(a)(1) (Supp. 2004) (emphasis added).

A judge who becomes a candidate for election or nomination for a state or local nonjudicial office must leave his or her judgeship when the judge (1) files the qualifying papers to run for office or (2) before qualifying papers are filed if he or she receives contributions or make expenditures above the threshold amounts set out in section 17-22A-2(a)(1) of the Code.

Canon 7 of the Canons of Judicial Ethics defines "candidate" as used in that Canon. It is therefore necessary for you to contact the Judicial Inquiry Commission for a determination of the applicability of that definition to the question presented here.

A judge who becomes a candidate for election or nomination for a state or local office must leave his or her judgeship when the judge (1) files the qualifying papers to run for office or (2) before qualifying papers are filed if he or she receives contributions or make expenditures above the threshold amounts set out in section 17-22A-2(a)(1) of the Code.

Can such judge retire and then continue to sit as a circuit judge while a candidate for another office?

Section 155 of the Constitution of Alabama (original section 155 was repealed by amendment 328; current section 155 is derived from section 6.16 as added by amendment 328) states that "[t]he Legislature shall provide by law for the retirement of judges . . . with such conditions, retirement benefits, and pensions for them and their dependents as may be prescribed."

Ala. Const. art. VI, § 155 (amend. 328, §6.16) The Legislature provided for judicial retirement for circuit judges by enacting the statutes found in section 12-18-1, et seq ., of the Code of Alabama.

A judge who is eligible and desires to retire provides notice of his or her intention to retire with the Chief Justice of the Alabama Supreme Court. The retiring judge, "upon being retired, shall take the oath of office as a retired justice or judge and thereupon become an extra or additional judge of the state." See Ala. Code § 12-18-7(a) & (b) (1995). Section 12-18-10(g) of the Code provides, in pertinent part, as follows:

Such retired justices or judges may, however, but subject to the approval of the chief justice, be transferred to inactive status, upon request of such transfer. Justices or judges who revert to inactive status shall be entitled to the same retirement benefits prescribed in subsections (a) and (b) of this section for justices and judges who have retired.

Ala. Code § 12-18-10(g) (1995) (emphasis added). Both subsections (a) and (b) of section 12-18-10 further define the benefits available to Justices of the Alabama Supreme Court, judges of Alabama's appellate courts, and the circuit court judges. The authority to transfer a retired justice or judge to active or inactive status rests with the Chief Justice.

Ala. Code § 12-18-10(h) (1995).

In 2004, the Legislature created the judicial position of senior judge.

Ala. Code § 12-1-14.2 (Supp. 2004). A senior judge and a retired judge on active status may be called to serve as a justice or judge in any court in this state, and when called, such judge is bound by the same ethical standards as other justices and judges.

Ala. Code § 12-1-14.2(c), (d) (Supp. 2004). Upon the approval of the Chief Justice, a senior judge may revert to the status of retired or inactive status.

Ala. Code § 12-18-10(g) (1995); Ala. Code § 12-1-14.2(d) (Supp. 2004).

A retired judge on active status or a senior judge who has been requested to serve, who has agreed to serve, and who has been appointed to serve exercises sovereign power and continues in office. Johnson v. Bd. of Control of the Employees' Retirement System , 740 So. 2d 999, 1010 (Ala. 1999). As such, he or she is subject to the prohibition of section 147 of the State Constitution providing that a sitting judge cannot be a candidate for a nonjudicial office.

Ala. Const. art. VI, § 147 (amend. 328, § 6.08). Conversely, a retired state judge on inactive-duty status is not "continuing in office" as contemplated by the constitutional amendment providing that constraints are placed upon a judge's activities during his or her continuance in office. Johnson , 740 So. 2d at 1012; see also opinion of the Attorney General to Honorable Samuel H. Monk, II, Circuit Judge, Seventh Judicial Circuit, dated May 11, 2005, A.G. No. 2005-130.

A circuit judge who retires and remains on active-duty status cannot be a candidate for a nonjudicial office.

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

Sincerely,

TROY KING

Attorney General

By: BRENDA F. SMITH

Chief, Opinions Division

TK/LKW

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