June 26, 1996

The Ethics Advisory Committee has been asked the following question: Does Canon 3E of the Code of Judicial Conduct require disqualification of a trial judge in every case where a court employee or a member of the employee's family is a party? Resolution of this question requires review of two Canons and a general test applicable to the Canons.

Canon 3E requires judicial disqualification when "the judge has a personal bias or prejudice concerning a party or a party's lawyer, a strong personal bias involving an issue in a case, or personal knowledge of disputed evidentiary facts concerning the proceeding." Canon 2B states that a judge "shall not allow family, social, or other relationships to influence the judge's judicial conduct or judgment." These Canons require a judge to closely scrutinize his or her involvement in a court proceeding when the judge is familiar with a participant. The scrutiny is not limited to whether the judge feels that he or she could be impartial. The judge must also objectively consider the perceptions of others.

As we have often stated, the Canons prohibit not only actual instances of bias and improper influences, but the perceptions of such. In Informal Opinion No. 88-3 we stated: "the general test applied to determine whether a judge's impartiality might reasonably be questioned is whether a person of ordinary prudence in the judge's position knowing all of the facts known to the judge would find that there is a reasonable basis for questioning the judge's impartiality." In determining the potential perceptions of others, this Committee looks to the opinions of other jurisdictions to see how similar issues have been treated.

The Oregon Judicial Conduct Committee, in its Opinion 89-6, stated that a judge may not hear cases involving the judge's court reporter's spouse. The spouse was a police officer and appeared occasionally as a prosecution witness. The Oregon Committee found that the police officer's appearance before the judge would create the appearance of impropriety, which must be avoided.

This Committee believes that the Oregon opinion provides a good reference point. The appearance of impropriety noted in that opinion is more pronounced when a court employee is involved in a court proceeding. The Committee is therefore of the opinion that, absent emergency circumstances, a judge should not adjudicate or participate in any proceedings involving employees of the judge's judicial district. It is possible that a judge may have little or no contact with certain district employees. However, an observer may presume that such contact occurs, and therefore the requirement of disqualification must extend to all cases where a district employee is a party.

As for other members of the employee's family, the requirement of disqualification should extend at least to the employee's spouse, as stated by the Oregon committee. However, disqualification need not extend to all relatives of court employees. The Alabama Judicial Inquiry Commission, in its Opinion 89-352, stated that a judge is not disqualified from hearing a case in which one of the parties was a third cousin to the husband of the judge's secretary. The relationship in that situation was not sufficiently close to create even an appearance of impropriety.

In order to have future predictability, and to avoid having to resolve each relationship on a case-by-case basis, the Committee believes that automatic disqualification should extend to proceedings where an employee's immediate family member, or other family member who resides in the employee's household, is a party to the action. This requirement is similar to that found in Canon 3E(1)(c), which requires judicial disqualification when a member of the judge's immediate family or household has an interest in the proceeding.

In situations involving relatives outside of the employee's immediate family or household, disqualification may still be required in some instances. A judge may, for instance, have a close working relationship with an employee whose cousin, who lives next door to the employee and with whom the employee has a close relationship, is a party in a case. Recusal may be necessary in such a situation to avoid the appearance of impropriety.

In conclusion, it is the Committee's opinion that the Code requires a trial judge to disqualify himself or herself from participation in proceedings involving an employee of the judge's district. This requirement of disqualification extends to members of the employee's immediate family and household. In all other situations where family members of court employees are parties, the judge should determine whether the particular facts suggest the need to recuse.