Informal Opinion 99-4
August 19,1999

Question: A justice court judge has asked whether it is appropriate to preside over a proceeding in which the judge's clerk has filed an affidavit setting forth whether a defendant has made a required appearance or complied with a sentence imposed by the court.

Answer: The judge is not disqualified from the proceeding, provided the clerk's affidavit recites only the status of court records regarding appearances and compliance with the court's sentence.

Discussion: Canon 3E(1) requires a judge to "enter disqualification in a proceeding in which the judge's impartiality might reasonably be questioned." The issue for this Committee is whether the clerk's appearance as a witness, for the limited purpose of reporting on matters of court record, requires the judge's disqualification in that proceeding. In Informal Opinion 89-2, we stated that "[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 the facts known to the judge [would] find that there is a reasonable basis for questioning the judge's impartiality." In the absence of actual bias, disqualification is based on the perception of a reasonably prudent person.

According to the requester, the facts concerning which the court clerk files an affidavit are matters which are found in the court record. The affidavit would be limited to whether court records indicated a defendant's appearance or whether court records indicated compliance with the court's sentence, such as payment of a fine or completion of counseling. Because the facts are contained within the court record, there is a possibility that the court could take judicial notice of those facts. However, because an affidavit may be necessary to justify an arrest warrant, judicial notice might not be legally appropriate in this situation. The Committee cannot and will not offer an opinion as to whether judicial notice is appropriate or whether an affidavit is needed. The Committee can only offer an opinion as to whether a judge must enter disqualification in a proceeding in which a judicial employee's affidavit is filed because judicial notice may not otherwise support the actions to be taken by the court.

The Code prohibits a judge from presiding over a proceeding involving a party or witness with whom the judge has a sufficiently close relationship such that the judge's impartiality might be questioned. The concern is that, if the judge knows a witness well, the judge may tend to believe that person's testimony over another witness. The Committee believes that this concern is alleviated in situations such as this where the testimony recites only facts regarding the court's record of compliance. When an affidavit recites only such facts there is little, if any, chance the court will give undue credence to the clerk's testimony based on the judge's professional familiarity with the clerk. The judge is therefore not required to enter disqualification. The Committee's determination is limited to affidavits which recite whether court records indicate a defendant's appearance or compliance with a court sentence. The Committee emphasizes that if the affidavit contains facts outside of the record, or facts introduced into the court record by someone other than court personnel, the analysis would change and disqualification may be necessary.