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Opinion 218

An opinion is requested on the following issues:

1. Is a newly appointed Superior Court Judge, who previously served as the elected District Attorney of the same Circuit, disqualified from hearing the merits of a Petition for Revocation of Probation on a sentence imposed prior to his appointment, where the alleged act constituting a violation of the conditions of probation occurs after the date of his swearing in?

2. If such Judge is disqualified, does the disqualification extend to all other acts, such as signing warrants for the arrests of such probationers and/or considering applications for the appointment of counsel?

The issues posed by this request are controlled by the language of Rule 2.11(A) governing the disqualification of judges. As noted in numerous previous opinions, this Canon enumerates six (6) per se grounds for disqualification, in addition to the general requirement that judges should disqualify in any proceeding in which their impartiality might reasonably be questioned.

The second per se ground for disqualification is set forth in Rule 2.11(A)(6) and requires automatic disqualification where “the judge served as a lawyer in the matter in controversy. . . .”

In light of this language, the issue thus becomes: Is a hearing on the merits of a Petition for Revocation of Probation a separate and distinct “matter in controversy” from the proceeding giving rise to the original sentence. After careful consideration, the Commission is of the opinion that this issue must be answered in the affirmative, and accordingly, there is no requirement for automatic disqualification in the context presented by this request.

However, it does not necessarily follow that disqualification might not be required under particular circumstances, and great care should be exercised to comply, under the existing circumstances, with the admonition of Canon 1 that judges should avoid the appearance of impropriety in all their activities.

In any event, and as noted in Commentary [3] to Rule 2.11, judges should disclose on the record information that the court believes the parties or their lawyers might consider relevant to the question of disqualification, even if they believe there is no legal basis for disqualification.

As thus viewed, the first issue posed is answered in the negative and the second issue is mooted.

[Pertinent Code of Judicial Conduct provisions: Canons 1, Rule 2.11. Cross reference to other relevant opinions for review: #33, #127, #135, #170, #182.]

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