An Advisory Opinion has been requested as to whether a magistrate may issue a warrant for the arrest of an offender –
1. if he is related to the offender within the third degree, or
2. if the Magistrate himself is a victim of the crime, or
3. if the Magistrate does issue the warrant, is it invalid.
The act of a magistrate in deciding whether or not probable cause has been shown for the issuance of a warrant is a judicial act and, for that reason, a magistrate in so doing is subject to all of the provisions of Rule 2.11(A) with respect to disqualification, which means that questions 1 and 2 above should be answered in the negative.
Question 3 is a legal question which it is not appropriate for this Commission to undertake to answer.
[Pertinent Code of Judicial Conduct provisions: Rules 1.2(B), 2.4(B), 2.11(A). Cross reference to other relevant opinions for review: #20, #33, #71, #72, #84, #128, #140, #168.]