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Opinion 220

A sitting Superior Court Judge in a multi judge circuit, while expressly denying any bias, prejudice or unfairness, nevertheless requests an opinion on the following question: Should a judge in a particular circuit ever preside or sit in judgment in the divorce of another judge from the same circuit, or any matter relating to it, contested or uncontested.

This is an issue of first impression for this Commission, but one previously addressed by numerous courts. A review of these authorities leads to certain well-established principles which are controlling, and such principles are presented for the future guidance of judges and litigants.

Canons 1 and 2 of the Code of Judicial Conduct require all judges: (1) to uphold and maintain the integrity and independence of the judiciary; (2) to avoid impropriety and the appearance of impropriety in all their activities; and (3) to perform the duties of judicial office impartially and diligently. Commentary [3] to Rule 1.2 establishes the test for impropriety as “… whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.”

Additionally, Rule 2.11(A) provides that judges shall disqualify “… in any proceeding in which their impartiality might reasonably be questioned . . . .”

Following these principles, the Supreme Court, in King v. State, 246 Ga. 386 (1980), held that it was not a pre-requisite to disqualification that “any actual impropriety on the part of the trial court judge” be shown, but the fact that his impartiality “might reasonably be questioned” was sufficient for disqualification.

Moreover, in Wallace v. Wallace, 352 So.2d 136 (1977), the Florida Court of Appeals held that under the provisions of Canon 3(C)(1) of the Florida Code of Judicial Conduct, a judge should have recused himself in a pending divorce action involving the governor, inasmuch as the judge’s relationship and that of his family to the governor created an impression “that his impartiality might reasonably be questioned.” In that case, there existed along friendship between the governor and the father of the judge. Additionally, the governor had been a patient of the judge’s father (who was a physician), not to mention the fact that the judge was initially appointed by the governor.

Finally, in Commonwealth v. Armor, 398 A.2d 173 (Penn. 1978), wherein the petitioner’s ex-wife had married a member of the Montgomery County Bench, the Court held:

… though the record did not reveal any bias, prejudice or unfairness, the need to keep the judicial system above reproach precludes any judge of the Court of Common Pleas of Montgomery County from ruling on a child support dispute, which necessarily involved the marriage.

In so holding, the Pennsylvania Court further stated that allowing such judge to rule on the pending, action would “tend to weaken the public confidence in a court that has established an enviable record of performance and service,” and concluded with words which are most appropriate to the matter at hand:

… our detailed review of this record does not reveal a single instance of bias, prejudice or unfairness. Nevertheless, the judicial system must be kept, like Caesar’s wife, above reproach. (Emphasis added.)

Simply stated, the public must believe in the absolute integrity and impartiality of its judges, and it is the obligation of this Commission to support and encourage such belief. Consequently, even without a showing of actual bias, prejudice or unfairness, and regardless of the merits or timeliness of a Motion to Recuse, this Commission concludes that it is inappropriate for any trial court judge to preside in any action wherein one of the parties holds a judicial office on the same or any other court which sits in the same circuit. Accordingly, the question posed is answered in the negative.

[Pertinent Code of Judicial Conduct provisions: Canons 1, Rule 2.11. Cross reference to other relevant opinions for review: #142, #153, #168, #182, #199, #200.]

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