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Opinion 235

Opinions are requested on the following questions:

1. whether a judge may preside over cases involving the judge’s spouse in the spouse’s capacity as the duly elected sheriff of the county in which the judge presides;

2. whether a judge may preside over cases involving sheriff’s deputies who are employed by the judge’s spouse in the spouse’s capacity as the duly elected sheriff of the county in which the judge presides;

3. if questions one and two are answered in the negative, whether an associate judge of the same court and county may preside over the cases involving the sheriff’s office and in effect, provide a cure for any conflict issues that arise; and

4. whether a judge may preside over cases in which the judge’s spouse has direct supervisory authority over probation officers who will testify before the judge and further, may the judge receive recommendations from probation officers supervised by the judge’s spouse.

In regard to question one, Rule 2.11(A) of the Code of Judicial Conduct states: “Judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned, or in which: (1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning an impending matter or a pending proceeding. (2) The judge is within the third degree of relationship to any of the following listed persons, or the judge’s spouse, domestic partner, intimate partner, or any other member of a judge’s family residing in the judge’s household is within the third degree of relationship to any of the following persons: (a) a party to the proceeding, or an officer, director, or trustee of a party.”


The Commission concludes that the judge should recuse himself/herself for all cases involving the judge’s spouse as a material witness in the proceeding.

In regard to question two, the Commission notes that none of the enumerated per se instances of disqualification found in Rule 2.11(A)(2) appear to be applicable. Thus, the issue involves a possible appearance of impropriety governed by Canon 1. The established test for appearance of impropriety, as set forth in the Commentary [3] to Rule 1.2(B), is 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.

In the factual scenario presented here, i.e., a judge presiding over cases involving sheriff’s deputies who are employed by the judge’s spouse in the spouse’s capacity as the duly elected sheriff of the county in which the judge presides, the Commission concludes that a reasonable person would believe that the judge’s ability to perform the duties of office will be impaired. Thus, the answer to question number two is No and disqualification is warranted.

In regard to question three, the Commission will look to a prior opinion for guidance  Opinion 168. In Opinion 168, the Commission considered whether a Chief Magistrate may hear civil suits filed by a loan company managed by her husband and having her daughter as secretary. The Commission stated: “there appears to be no reason why Associate Magistrates, although hired by the Chief Magistrate, may not hear the cases outlined in the preceding questions; provided, however, that such Assistant Magistrates entertain no doubt as to their impartiality.” The Commission will adhere to its prior opinion and conclude that an associate judge may preside in the event that a chief judge is disqualified. In making this conclusion, the Commission must emphasize that the chief judge is not to be involved with any aspect of the substantive decision-making process of the associate judge.

In regard to question four, the Commission answers this question No. In making this decision, the Commission has utilized the previously stated analysis regarding Rule 2.11(A)(2) and Canon 1 of the Judicial Code of Conduct.

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