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Opinion 219

The sitting Superior Court Judges of a judicial circuit seek an advisory opinion on the following issues:

l. Can a juvenile court judge order children and/or parents to obtain services, e.g., counseling, from an organization from which his wife receives remuneration as executive director?

2. Does it make any difference if her remuneration or if the payments made to the subject organization are affected by referrals or grants which are controlled by the judge of the juvenile court?

Insofar as this request involves construction and/or interpretation of statutes, it raises issues for the courts rather than this Commission. Insofar as the request involves the Code of Judicial Conduct and prior Opinions of the Commission, it is answered as follows.

Rule 2.4(B) provides, in pertinent part, that:

Judges shall not allow their family … relationships to influence their judicial conduct or judgment. Judges shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor should they convey or permit others to convey the impression that they are in a special position to influence them. . . . (Emphasis supplied.)

Relying upon this language, the Commission has previously held that no judge should have any interest, financial or otherwise, in a private, for-profit, probation service company (Opinion No. 172, September 25, 1992) and that it is inappropriate for any judicial officer to endorse or otherwise publicly align himself or herself with any private, for-profit probation service (Opinion No. 215, September 30, 1996).

Furthermore, in Opinion No. 152 (December 21, 1990) the Commission concluded that it would be improper to require a first-time DUI offender to attend a particular treatment facility for the reason that the statute authorizing such treatment only required the offender to attend and complete any program approved by the Department of Human Resources.

In addition, Rule 2.13(A)(2) expressly provides that judges shall avoid nepotism and favoritism, while Canon 1 requires judges to avoid impropriety and the appearance of impropriety in all their activities. This prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of the judge and provides the underlying rationale for Opinion No. 68 (February 22, 1985) wherein the Commission concluded that it was inappropriate for judges to appoint their spouses or other members of their immediate family to serve as their personal secretaries.

Finally, in Inquiry Concerning Judge No. 1301 (decided May 31, 1990), the Supreme Court approved a Commission recommendation that a judge be publicly reprimanded for requiring a DUI defendant to submit to Court-mandated therapy by a Court-designated therapist who insisted on treating the entire family.

Measured by these standards, it is clearly inappropriate for any judge to use the power and prestige of judicial office to advance the private interests of a spouse or immediate family member.

Accordingly, question 1 is answered in the negative and question 2 in the affirmative with the factual statements contained in question 2 compounding the improprieties found in question 1.

[Pertinent Code of Judicial Conduct provisions: Canons 1, Rule 2.4(B), Rule 2.13(A)(2). Cross reference to other relevant opinions for review: #68, 86, #152, #172, #215.]

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