The Ethics Advisory Committee has been asked by a District Court judge whether disqualification is necessary in a proceeding involving a family member of an employee who does not have a close working relationship with the judge, and whether disqualification is required in a proceeding involving a family member of an employee who works in a different court level-e.g., Juvenile Court.

The Ethics Advisory Committee discussed these issues in Informal Opinion 96-2. The Committee addressed a specific fact situation, but also created a bright-line, stating that a trial judge should 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. We have received considerable comment about Informal Opinion 96-2, and in particular that it causes administrative headaches, accompanied by significant expense, in districts that have few judges but are large in size. Given these costs of the bright-line announced in Rule 96-2, it is appropriate that the conclusions of that opinion be reconsidered.

As stated in Informal Opinion 96-2, 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. The conclusions in Informal Opinion 96-2 were based on actual and perceived bias. In making the conclusions, we cited Opinion 89-6 issued by the Oregon Judicial Conduct Committee. The Oregon opinion required disqualification in a proceeding involving the spouse of the judge's court reporter. Based on the appearance of bias, and recognizing that the public, litigants, and the media may assume favoritism that does not actually exist, we extended that reasoning to all employees within the judge's district and to the employee's immediate family and household.

After additional consideration of this issue, the Committee is of the opinion that automatic disqualification need not be required in all of those situations. In certain circumstances, the judge should be allowed to simply disclose the nature of the relationship and allow the parties the opportunity to take whatever actions they feel are necessary. The Committee believes that it is not reasonable to perceive that a judge might be biased in all proceedings involving a family member of a district employee, without regard to the relationship between the judge and the particular employee. While a judge necessarily has a close working relationship with his or her in-court clerk, he or she may not even know a clerical employee based in another county or employed in a different court level.

In Informal Opinion 94-6 we addressed disqualification in situations involving the Attorney General’s Office, which employed a judge’s spouse. We held that disqualification was not required in every case in which an assistant attorney general appears. The judge was only required to disqualify in situations where there was a close working relationship between the spouse and the attorney general handling the case, i.e., when the attorney general handling the case worked in the same section as the judge's spouse. In all other situations involving the Attorney General's Office, the judge was advised to disclose the relationship with the Attorney General's Office, and any other relevant facts, and allow the parties to take any action they deem appropriate. The Committee believes that this combination of automatic disqualification in certain situations and simple disclosure in other situations is a better, or at least less disruptive, approach that would appropriately apply to the questions presented in the current opinion request.

The Committee remains of the opinion that a judge must disqualify from a case involving an employee of the judge’s court level employed in the same district as the judge. For those counties in which the district court and the juvenile court are co-located, 1 the judge should enter disqualification whether the employee is with the district or juvenile court. In those counties without co-location, automatic disqualification is only required if the employee is of the same court level as the judge.

In cases involving a member of the employee’s immediate family or household, a judge must automatically disqualify if the party is related to an employee that has a close working relationship with the judge. This would include the judge’s clerk, bailiff, and reporter; the clerk of the court; and the trial court executive. A judge may of course recuse himself or herself in other circumstances if he or she believes it appropriate. In all other situations involving a district employee's household or family, the judge should disclose the relationship and any other relevant facts and circumstances and allow the parties to take whatever action they deem necessary.

In conclusion, the Committee believes that automatic disqualification is required when the party is an employee of the judge’s district, excepting only employees of different court levels if not co-located, or the party is a family or household member of an employee that has a close working relationship with the judge. In all other situations, the judge should at least disclose the existence and nature of the relationship and allow the parties to take whatever action, if any, they deem appropriate.

1For purposes of this opinion, co-location includes those court sites which have one or both of the following relationships between the district and juvenile courts: 1) cross-trained clerks who do work for both court levels; 2) clerks who office together. Based on the Committee's information it would appear that the first situation is typical in the First and Seventh Districts while the Cedar City courthouse is an example of the second. Sites such as the Matheson Courthouse and the courthouse in St. George, where clerks are not cross-trained and there is a physical separation of clerk's offices, are not considered co-located for purposes of this opinion.