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Opinion 229

An opinion is requested on the following issue:

Is the disqualification requirement of Opinion No. 220 applicable in a civil case wherein one of the parties is the Designated Chief Deputy Clerk of the Superior Court who would succeed to the position of Clerk should the elected Clerk resign or otherwise leave office prior to the expiration of the term?

In Opinion No. 220, the Commission concluded that it was inappropriate for any trial court judge to preside in any action wherein one of the parties held a judicial office on the same or any other court which sits in the same circuit. Such holding was primarily premised upon the provision of Rule 2.11(A) requiring disqualification in any proceeding in which a judge’s impartiality might reasonably be in question.

While presiding in a civil case involving a court official clearly does not constitute a per se violation of Rule 2.11(A), such conduct must nevertheless be measured by the reasonable person standard found in Canon 1 and Rule 2.11(A). As so measured, it would appear unlikely that any reasonable person would believe that a judge’s ability to fairly and impartially perform the duties of office would be impaired in any way simply because one of the parties happened to be employed in the office of the Clerk of a multi-judge court. Consequently, the issue as posed must be answered in the negative.

However, if the judge entertains any doubt as to his/her impartiality, or, if under the circumstances, the judge believes that his/her impartiality might reasonably be questioned by others, recusal would be required.

As a practical matter, the Commission calls attention to the Remittal procedures outlined in Rule 2.11(C) and suggests such procedures as a possible method of resolving the issue.

[Pertinent Code of Judicial Conduct provisions: Canon 1, Rule 2.11(A), Rule 2.11(C).]

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