Opinion 238

The District Attorney of the multi-county circuit has provided information to the Commission describing the operation and structure of the office. The District Attorney is responsible for the prosecution of cases in five individual counties. Each county is organized and structured as a “free-standing” office. Each office has an assistant district attorney assigned as the designated office manager to manage and supervise the operations and caseload of that particular office. Office managers also manage and supervise assistant district attorneys, victim advocates, investigators and support staff in his or her respective office. The judge’s spouse is assigned to one of these county offices and is also designated as the Chief Assistant District Attorney for the circuit. The judge’s spouse does not supervise criminal cases in any other county other than the county where she serves as Office Manager.

Currently, the judge recuses in all criminal cases in the county where his wife acts as Office manager, but presides over criminal cases in the other counties in the circuit. The District Attorney supervises the judge’s spouse. The judge’s spouse serves at the pleasure of the District Attorney as an employee of the District Attorney’s Office. The District Attorney also reviews the performance of the judge’s spouse and recommends promotions, raises, and other benefits of employment.

Rule 2.11(A) states that “judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned.” The test is whether an objective, disinterested observer, informed of the relevant facts, would have a significant doubt over whether the judge was impartial. Moreover, actual bias is not required for disqualification. The appearance of bias is sufficient to require recusal. Gude v. State, 289 Ga. 46 (2011).

The question before the Commission is whether the judge is disqualified to hear cases in the entire circuit or in only those cases originating in the office where the judge’s spouse acts as Office Manager and Chief Assistant District Attorney in a multi-county circuit.

Two aspects of those circumstances must be considered: first, the husband-wife relationship between the judge and the supervisory assistant District Attorney; and, second, the relationship of the supervisory assistant district attorney to the work of the District Attorney’s office.

A wife and husband share an interest in the financial security of the other and in the security that each may have in their respective professional positions. One State appellate court has found the existence of a marriage relationship between a judge and a deputy district attorney in the same county sufficient by itself to require disqualification. Smith v. Beckman, 683 P.2d 1214 (1984). Moreover, other states have opined similarly where a judge’s relative has supervisory authority in the prosecutor’s office; the judge is disqualified even if the relative does not actually make an appearance or has any involvement on a case. Michigan Advisory Opinion JI-101 (1995); West Virginia Advisory Opinion, February 25, 1994, March 10, 2000.

Some states have not adopted a bright-line test and instead have favored a more subjective approach to this question which examines the actual supervisory work performed by the judge’s spouse. See Arizona Supreme Court Judicial Ethics Advisory Opinion 95-19 (1995). We decline to adopt this subjective approach. Because it is subjective, it does not comport with the underlying intention of Rule 2.11(A) which address appearances of bias. Indeed, it is of little consequence to the disinterested observer the role actually assumed by a supervising assistant district attorney. The issue is one of appearances. Thus, we conclude that any disinterested observer would conclude that a supervising assistant district attorney has authority to influence each and every case which originates from the office.

A Massachusetts Advisory Opinion addressed a similar scenario and concluded that a judge is disqualified from any case in which the state is represented by the district attorney’s office even if the assistant district attorneys appearing in the judge’s court work independently of the judge’s spouse. Massachusetts Advisory Opinion 96-3.

The Commission finds the Massachusetts opinion persuasive.

All assistant district attorneys, by statute and regardless of title, serve “at [the] pleasure” of the District Attorney. In this instance the spouse serves by appointment of the District Attorney in the position of “Chief Assistant District Attorney” which by title alone suggests primacy within the office in terms of both remuneration and responsibility for the work of the office, second only to the District Attorney. The judge’s spouse has primary administrative responsibility for running one of the offices in the circuit. While it is conceivable that a functional division of responsibility within the office may enable a full-time assistant district attorney who prosecutes cases in the other outlying Superior Courts to operate with relative autonomy and independence, the functional division may be less important than the perception of litigants and the general public concerning a judge’s spouse’s responsibilities as a supervisory assistant District Attorney for the operations of, and interest in the success of, that office. Moreover, a Chief Assistant District Attorney is understandably perceived by litigants and by the community to have responsibility, second only to the District Attorney, for all the work of the office.

There can be no debate over the inappropriateness of a judge hearing cases involving the office of a District Attorney when the elected District Attorney is a close relative of the judge within the prohibited 3rd degree of relationship proscribed in Rule 2.11(A)(2). Likewise, a disinterested person would reasonably conclude that the professional relationship between a District Attorney and his or her Chief Assistant is such that the same standard applies when the judge is a close relative of the District Attorney’s Chief Assistant or another District Attorney with a supervisory role.

We have addressed similar issues involving a judge whose relative was an assistant district attorney, without supervisory authority. In Opinion 182 we addressed the question whether a Judge of the State Court is disqualified from assisting the Superior Court in criminal cases if the State Court Judge’s sibling is an Assistant District Attorney in that circuit. We noted that “[t]he idea of complete impartiality pervades the entire Code of Judicial Conduct. Rule 2.11(A) requires that judges disqualify themselves in proceedings in which their impartiality might reasonably be questioned, including, but not limited to, certain enumerated instances. Both personal bias and the appearance thereof are highly subjective, and great care should be exercised by a judge to comply with the admonition of Canon 1 that ‘judges should avoid impropriety and the appearance of impropriety in all their activities.’” We did not find that such a relationship, given that the judge’s sibling was merely an assistant district attorney, to be sufficient to warrant automatic recusal. We reached this conclusion that “unless other circumstances exist, and expressly provided that both judges follow the mandate of [Rule 2.11(A)] by disqualifying in all cases in which there is a prohibited relationship,” no automatic recusal was required. However, the question presented here is one where “other circumstances exist.” Opinion 182. In the question presented here the judge is married to the Chief Assistant District Attorney; the judge has a direct financial interest in his spouse’s employment; and the judge’s spouse has supervisory authority in the district attorney’s office. Taken together, such circumstances require recusal.

This Commission concludes that an objective, disinterested observer might reasonably question a judge’s impartiality when presiding over cases involving the office of the District Attorney in which the judge’s spouse serves as a supervisory assistant.

Although we recognize that heretofore a “Chinese Wall” has been created to ensure that no actual conflict of interest has occurred in the handling of criminal cases in the remaining counties over which the judge presides, such a wall of separation cannot ameliorate the financial and personal interest that a judge would necessarily have in his spouse’s continued employment with the office.

Rule 2.11(A) requires that judges recuse themselves, regardless of whether a motion has been filed, when a judge’s “impartiality might reasonably be questioned.” Rule 2.11(C) allows remittal of disqualification, except in the case of bias or prejudice concerning a party, the parties and lawyers.

Thus, having opined that recusal is appropriate; we now determine whether the conflict can be remitted pursuant to Rule 2.11(C). It is important to point out that the remittal procedures in this instance would not be particular to an isolated case but rather would be situational based upon a familial relationship, affecting all cases in which the office of the District Attorney makes an appearance. Thus, given the ongoing nature of the conflict and the strong public interest in the appearance of strict impartiality in criminal cases, we conclude that remittal of disqualification is not permitted because of the appearance of bias concerning a party or the lawyers in the proceeding.

Rule 2.11(A) requires judges to disqualify themselves in all criminal proceedings in a circuit where the judge presides if the judge’s spouse serves in a supervisory or managerial role in the Office of the District Attorney.

[Pertinent Code of Judicial Conduct provisions: Canon 1, Rule 2.11(A), Rule 2.11(A)(2), Rule 2.11(C); and JQC Opinion 182].

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