Informal Opinion 10-3

November 10, 2010


A municipal justice court judge has asked the Ethics Advisory Committee for guidance on handling cases involving his son-in-law, who is the chief of police in the same jurisdiction covered by the justice court.


The requested guidance is outlined below.


The municipal justice court judge presides over a court that receives approximately 1000 filings per year. The judge�s son-in-law is the chief of police over the same municipality�s police department. As chief of police, the son-in-law personally writes citations that are filed with the court. The son-in-law also supervises other officers who write citations.

The justice court judge currently has a procedure that he follows on cases involving his son-in-law. If a defendant contests a citation, the judge provides the defendant with a form that discloses the conflict¹. The defendant then has the option of either requesting the judge�s disqualification or stating that the judge need not be disqualified. The judge is asking the Committee whether this process is acceptable. The judge is also asking the Committee to provide guidance on any other processes that should be followed.

There is little question that the judge would have a conflict on all contested cases on which the citation was written by his son-in-law or the son-in-law is otherwise a primary witness. Rule 2.11(A)(2)(d) requires a judge to �disqualify himself or herself . . . [when] the judge knows that . . . a person within the third degree of relationship . . . or the spouse . . . of such a person is . . . likely to be a material witness in the proceeding.� In addition to the Code language, the Utah Supreme Court, in In re Inquiry Concerning a Judge, 2003 UT 35, �10, 81 P.3d 758, determined that a son-in-law is considered to be within the third degree of relationship for purposes of disqualification.

Disqualification is not required in cases involving other officers from the police department, unless the son-in-law becomes a material witness in a particular case. This is unlikely on citations written by others and would not be known at the time a citation is filed.

The disqualification of the justice court judge is of the type that may be waived under Rule 2.11(C) of the Utah Code of Judicial Conduct. The judge may therefore disclose the conflict and ask the parties to consider waiving the disqualification. The primary question for the Committee is whether the son-in-law is �likely to be a material witness� upon the filing of a citation, requiring the judge to recuse or disclose the conflict at that stage. The Committee recognizes the practical realities of the citation process. The Committee will consider those realities in deciding whether disclosure is required when a citation is filed or whether a different outcome is justified given those realities.

When a law enforcement officer issues a citation, the officer has five days to file the citation with the court. See Utah Code Ann. � 77-7-20. In most cases, the defendant must pay the citation no sooner than five and no later than 14 days from the date of receiving the citation. In other cases, the defendant is required to personally appear before the judge in order to resolve the citation. On non-mandatory appearance cases, if the defendant pays the citation, the court clerk handles the case without any involvement by the judge. The court clerk receipts the fine, enters a conviction in the court docket, and closes the case. One of the reasons why the subject justice court judge has implemented the court�s current procedure is because the judge does not have involvement at that early stage. The court only notifies defendants of the conflict if the case becomes contested, which is the point when the judge will become involved. It is also arguably the point at which the son-in-law is likely to become a material witness.

The majority of citations are resolved by the defendants paying the appropriate fine without ever appearing in court. By writing the citation, presumably the son-in-law is a witness to the crime. The question for the Committee is whether, given the fact that the majority of citation cases are settled without hearing or trial, the son-in-law is only likely to be a material witness once it is determined that the citation will be contested. The Committee believes that is the situation in citation cases². The important consideration is whether the witness�s testimony is likely to come before the judge in some form. In citation cases, it is unlikely that the judge will be personally aware of the son-in-law�s testimony unless and until some act occurs other than the voluntary payment of the fine.

In reaching this conclusion, the Committee also recognizes some of the practical difficulties that would arise if the notice and option for waiver must be sent at the time the citation is filed. There would undoubtedly be situations in which a defendant would submit payment on a citation without returning the waiver form. This could be because the form and the payment cross in the mail, the form is never actually received by the defendant, or the defendant simply does not take the time to complete and return the form. If the Committee�s opinion were that the notice and option for waiver must be sent when a citation is filed, then the court could not process those cases in which the fine amount is submitted without the waiver form being included, unless a different judge is appointed to preside over the case. However, appointing a new judge would not have any practical effect in these circumstances. The court clerk would still be the one to process the case without any involvement by the appointed judge. The judge would appear in name only.

The same result happens if a defendant submits payment but also requests disqualification of the judge. A new judge would be appointed, but the court clerk would still handle the case without involvement by the new judge. The Committee could determine that a defendant waives the judge�s disqualification by voluntarily making a payment within the appropriate time frame, but there would still be circumstances in which defendants would not have seen the notice and option for waiver, which would undermine the validity of such implicit waivers.

Having considered the requirements of the Code and the interests of defendants, along with the practical realities associated with citations, the Committee determines that the process the judge is currently following generally complies with the Code. On non-mandatory appearance cases, the judge is not required to send notice of the conflict at the time citations are filed. On mandatory appearance and contested cases, the judge must either recuse or provide the notice and option for waiver when the defendant personally appears. If the defendant chooses not to waive the conflict, another judge must be appointed to handle the mandatory appearance or contested cases. If a case is initiated by information and the son-in-law is mentioned as a witness in the case, the judge must enter disqualification and another judge must issue the summons or warrant.

The Committee notes that contested cases include those when a defendant fails to respond to or appear on a citation. If the court issues an order to show cause, bench warrant, or other document requiring judicial authority, a different judge must handle those cases. At that point, the son-in-law�s affirmation in the citation is relied upon by the judge to issue process, and the defendant will not have waived the conflict.

The Committee reminds the judge that Rule 2.11(C) states that when a party is considering whether to waive the conflict, the party must do so �outside the presence of the judge and court personnel.� When the judge or court personnel provide a notice and option for waiver to a defendant, the defendant should take a moment outside the presence of court personnel to make a decision.

In conclusion, the Committee determines that the son-in-law is only likely to be a material witness if the defendant does not voluntarily pay the citation or the defendant is required to personally appear in court to resolve the case. The son-in-law also becomes a material witness for purposes of issuing a summons or warrant in cases initiated by information if the son-in-law is mentioned in the information.


¹ Throughout this opinion the Committee assumes that the prosecutor has waived or will waive the judge�s conflict. The judge should ensure that the prosecutor�s waiver is documented.

² The Committee recognizes that, statistically, the majority of criminal and civil cases are also settled without ever going to trial. An important distinguishing factor in citation cases is that, in the majority of cases, the judge does not have any involvement with the case at all. Therefore, this opinion should not be construed as automatically applying to other criminal and civil cases. It may very well be that the determination of whether someone is likely to be a material witness in those cases must be made at the time of filing because the judge will have some involvement in the case. However, that question will only be answered if the question is ever posed to the Committee.