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Opinion 192

A part-time Associate Juvenile Judge, who also represents the County Board of Education, requests an opinion on the following issues:

(1) When two students become involved in an altercation on school property and are charged with a delinquent offense, am I prohibited from hearing the case since it occurred on school property?

(2) When a student either brings a controlled substance on school property or sells a controlled substance within the prohibited distance from school property requiring an enhancement of the penalty as a result of the distance involved, am I disqualified because of the fact that the offense occurred on or near school property?

(3) When a student is charged with bringing a weapon onto school property, am I disqualified because the offense occurred on school property?

Existing state law (O.C.G.A. § 15-1-8) and the June 25, 1993 Opinion of this Commission (No. 183) expressly permit a part-time judge to simultaneously serve as attorney for a governmental body, including a county board of education, except in those instances in which that part-time judge has a conflict because of such dual representation. Thus while such dual representation is not per se improper, it is nevertheless appropriate that the Judge continue the existing practice of voluntary recusal in all cases involving the school board or school property.

However, in the factual scenarios here presented, neither the school board or school property are directly involved. Rather, the commission of described juvenile offenses “on or near school property” is alleged and the issue raised may be summarized as follows:

Is a part-time Associate Juvenile Court Judge, who simultaneously represents the County Board of Education disqualified in all juvenile matters which are alleged to have occurred on or near school property?

Rule 2.11(A) mandates disqualification in any proceeding in which the judge’s impartiality might reasonably be questioned, including, but not limited to, enumerated instances, none of which are specifically applicable here. For this reason, the Judge’s representation of the Board of Education, standing alone, is not per se grounds for disqualification in every juvenile case which occurs on or near school property, and the question posed must be answered in the negative. Nevertheless, as the Commission has repeatedly opined, it does not necessarily follow that disqualification may not be required under particular circumstances which exist in a particular situation. Both personal bias and the appearance thereof are highly subjective, and great care should be exercised by all judges, especially those who serve only part time, to comply with the admonition of Canon 1 that judges avoid impropriety and the appearance of impropriety in all their activities.

[Pertinent Code of Judicial Conduct provisions: Canon 1, Rule 2.11. Cross reference to other relevant opinions for review: #45, #57.]

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