March 27, 1989

The Ethics Advisory Committee has been asked for its opinion on the question of whether a judge may be involved in cases where the judge's cousin, a deputy county sheriff within the judge's district, has an active part. Specifically, the judge questions whether it would be proper to act as the signing magistrate where the judge's cousin is acting as the affiant or the complainant on search warrants, warrants of arrest, or informations or where the cousin is testifying before the judge at a preliminary hearing or trial.

It is the committee's opinion that the Code of Judicial Conduct does not prohibit the judge from performing these judicial functions provided there is no reasonable basis for questioning the judge's impartiality.

The pertinent provisions of the Code are Canons 2 and 3. Canon 2 provides:

A. A judge should respect and comply with the law and should exhibit conduct which promotes public confidence in the integrity and impartiality of the judiciary.

B. A judge should not allow family, social, or other relationships to influence judicial conduct or judgment. A judge should not tend the prestige of the judicial office to advance the private interests of others; nor should a judge convey or permit others to convey the impression that they are in a special position of influence . . . .

Canon 3C(a) provides that a judge must disqualify in a proceeding if his or her impartiality might reasonably be questioned. This includes instances where [t]he judge has a personal bias or prejudice concerning a party, a strong personal bias involving an issue in a case, or personal knowledge of disputed evidentiary facts concerning the proceeding." Furthermore. a judge must disqualify where:

(d) The judge or spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) is acting as a lawyer in the proceeding;

(iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(iv) is to the judge's knowledge likely to be a material witness in the proceeding.

For purposes of Canon 3C, the degree of relationship is calculated according to the civil law system. The Commentary after Canon 3C in the Code of Judicial Conduct provides:

According to the civil law system, the third degree of relationship test would, for example, disqualify the judge if his or her spouse's father, grandfather, uncle, brother, or niece's husband were a parry or lawyer in the proceeding, but would not disqualify him if a cousin were a party or lawyer in the proceed. (Emphasis added).

Accordingly, it is clear that since the judge in this matter and the deputy sheriff do not fall within the third degree of relationship, disqualification is not automatic. However, the participation of a cousin in a case may still result in judicial disqualification under the general Canon 3C(1) impartiality standard if a close personal relationship exists. Leslie W. Abramson, Judicial Disqualification under Canon 3C of the Code of Judicial Conduct.

In a Mississippi case, the trial judge was not required to recuse himself where the victim in a murder case was the third or fourth cousin of the judge with whom the judge had little contact, Coleman v. State, 378 So.2d 640 (Miss. 1979). Similarly, a South Dakota court held a trial judge was not required to recuse where his wife was a first cousin of one of the prosecutors. State v. Robideau, 262 N.W.2d 52 (S.D. 1978). The court in Robideau cited Canon 3(C)(1)(d) of the Code and pointed out that the judge's wife and the prosecutor were related in the fourth degree. The court also noted that the evidence was clear that there were no significant social relations between them.

Unlike the judges in Coleman and Robideau, this judge has enjoyed a significant family and social relationship with the deputy sheriff. In the letter requesting this opinion, the judge stated that the judge and his or her cousin "see each other regularly and maintain close family contact." The Annotations to Canon 3C explain that. in addition to the Informal Opinion No. 89-5 specific situations set forth by 3C, the general test is whether a person of ordinary prudence in the judge's position knowing all the facts known to the judge find that there is a reasonable basis for questioning the judge's impartiality. SCA Services Inc. v. Morgan,  557 F.2d 110 (7th Cir. 1977); Informal Opinion No. 88-3. The judge must determine whether his or her social and family relationship with the deputy sheriff would cause a person of ordinary prudence to find a reasonable basis for questioning the judge's impartiality. If the cousin ' s position as deputy sheriff caused the judge to develop a personal bias or prejudice concerning a party or an issue in a particular case or placed the judge in a situation where the judge acquired independent information of disputed evidentiary facts through the family relationship, a person of ordinary prudence would find a reasonable basis for questioning the judge's impartiality and the judge would be required to disqualify him or herself. Informal Opinion Nos. 88-3 and 89-2.

As an alternative to disqualification, Canon 3D states that a judge may disclose on the record or in writing the basis for disqualification. If the parties and lawyers, independently of the judge's participation,agree that the judge's relationship is immaterial or that the financial interest is insubstantial, the judge is no longer disqualified and may participate in the proceeding. Such an agreement must be entered on the record or, if written, signed by all the parties and included in the case file. The committee recognizes that disclosure would not be possible in all the instances mentioned by the judge, such as the issuance of search warrants. In the other matters, however, disclosure is an option.

In Informal Opinion No. 1260, the American Bar Association's Committee on Ethics and Professional Responsibility considered an attorney practicing law in two counties in each of which there were two circuit judges. One of the Judges was the attorneys sister-in-law. The Committee stated that the judge would necessarily have to disqualify herself whenever her relative appeared before her, but that the requirement would not impose a hardship because the second judge in the circuit could sit by interchange or, under subsection D of Canon 3, the judge could disclose on the record the basis of her disqualification and. if the parties agree that the relationship is immaterial, she would no longer be disqualified.

In conclusion, it is the committee's opinion that the Code does not automatically require a judge to disqualify him or herself from participation in a case in which the judge's cousin, a deputy sheriff, is involved, since a cousin is not within the third degree of relationship to the judge. However if, because of the relationship between the judge and the deputy sheriff, the judge's impartiality might reasonably be questioned, the judge should either recuse or. when possible, disclose the relationship to the parties and permit them to decide whether a recusal is warranted.