Informal Opinion 05-3
November 28, 2005

Question:   A district court judge has asked whether a judge is required to enter disqualification based solely on the fact that a litigant has filed a judicial conduct commission complaint against the judge.

Answer:   A judge is not required to enter disqualification based solely on the fact that a judicial conduct commission complaint has been filed.

Discussion:   Canon 3E of the Utah Code of Judicial Conduct requires a judge to enter disqualification "in a proceeding in which the judge's impartiality might reasonably be questioned." This Committee has previously addressed situations similar to the question at issue. In Informal Opinion 96-3, the Committee determined that a judge was not required to enter disqualification in a proceeding involving an attorney who had previously been involved in a adversary proceeding against the judge. In Informal Opinion 97-8, the Committee determined that a judge was not required to enter disqualification in a case in which a party had a pending lawsuit against the judge. The Committee cited a couple of reasons for its decisions. The Committee stated that requiring disqualification in these situations would permit an attorney or party to engage in judge shopping, by manufacturing bias. The Committee also noted that disqualifying factors are generally those which are rooted in extra-judicial sources, and the facts of those opinions arose from judicial proceedings.

The Committee believes that the reasoning of these opinions can be extended to this situation. The mere fact that a litigant has filed a judicial conduct commission complaint against a judge does not automatically require disqualification by that judge. A litigant or an attorney should not be able to remove a judge simply by filing a complaint.

In many cases, a challenged judge might not even be aware of the judicial conduct commission complaint. According to the procedures of the Utah Judicial Conduct Commission, complaints are often resolved without the judge becoming aware that a complaint has been filed. Even if a judge is aware of the complaint, disqualification is not automatically required. There must be separate facts which would support a disqualification determination. As we stated in Informal Opinion 97-8, "the judge must consider whether a reasonable person, knowing all of the facts available to the judge (including the fact that a party may not purposely set out to create bias when none existed before) could question the judge's ability to be impartial." The fact that a complaint has been filed is insufficient, and therefore there must be other facts upon which a reasonable person could perceive bias.

The Committee notes that other ethics advisory committees have made similar conclusions. For example, the Arizona Committee, in advisory opinion 98-02, stated that "a judge is not required to automatically recuse when a complaint is filed against the judge with the commission on judicial conduct." The committee listed several factors that a judge should consider in determining whether independent facts create a basis for disqualification. These include "whether the complaint has merit on its face or whether it appears to be a tactical maneuver designed to remove the judge," "whether the complaint alleges specific facts from an extra-judicial source," "whether the complaint alleges specific facts concerning bias against the complainant," and whether the complaint has, in fact, caused any actual, personal bias." The Committee agrees that these may be relevant considerations in determining whether independent facts support disqualification. The Committee does not have other facts before it and therefore cannot state when disqualification would be required. However, disqualification is not automatically required when a complaint is filed.