Recusal: Fiance is Assistant District Attorney
December 9, 2002
CJE Opinion No. 2002-17
You have requested an opinion from the Committee on Judicial Ethics regarding the propriety of sitting on cases in the county in which your fiance, soon to be spouse, is an assistant district attorney. Your fiance is assigned to a unit within the District Attorney's office and holds no supervisory or administrative position. As a District Court judge you sit primarily in the same county in which your fiance is an assistant district attorney. Based on your analysis you have concluded that you will recuse yourself from all cases in which your fiance has any direct involvement (including cases in which your fiance may have reviewed the matter for possible indictment) and all cases involving the unit to which your fiance is assigned. You request an opinion from the committee confirming whether you must recuse yourself from all cases from the county, i.e., from the District Attorney's office, in which your fiance works.
Canons 3 (C) (1) and (3) (D) of the Code of Judicial Conduct provide the requisite guidance for your correct decision to recuse from all cases in which your fiance has direct involvement. Canon 3 (C) (1) states in relevant part:
"(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including, but not limited to instances where . . .
(d) he or his spouse, or a person within the third degree of relationship . . .
(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 . . . ."
Your impending marriage brings your relationship within the spirit, and soon to be letter, of these provisions. In CJE Opinion 92-1, we concluded that "acting as a lawyer" extends to cases in which a judge's father had "any relevant, substantial prior involvement" in the matter. This includes "involvement in any stage of the proceeding that produces the trial over which the judge is presiding." CJE Opinion 2001-16. This requires recusal from any cases on which your fiance worked or had any supervisory responsibilities.
Recusal from all cases from the unit in which your fiance works is indicated by two factors. First, because unit members may share information on pending cases, there is a risk that your fiance would inadvertently be involved in, or influence, other cases coming from the unit, even without direct supervisory responsibility. See CJE Opinion 92-1. Coupled with this concern is a second reason for recusal. Canon 3 (C) (1) requires recusal when the judge's "impartiality might reasonably be questioned." The test we have adopted to interpret this Canon is whether an objective, disinterested observer, informed of the relevant facts, would have significant doubt over whether the judge was impartial. CJE Opinion 96-3; Pepsico Inc. v. McMillan, 764 F.2d 458 (7th Cir. 1985). Your fiance presumably has close involvement in the underlying issues raised from the unit. A husband-wife relationship inevitably intertwines the financial interests, and professional successes, of each spouse. In this circumstance, a disinterested observer, informed of the relevant facts, could reasonably conclude that you might have a conscious or subconscious bias toward the professional success of the unit in which your spouse advocates on a regular basis. Consequently, recusal from cases involving the unit in which your fiance is employed is required.
This leads to the final inquiry, whether you must recuse yourself from all cases that arise in the District Attorney's office in which your fiance is employed. We have previously concluded that the mere fact that a judge's son was employed in the prosecutor's office does not require recusal from all criminal proceedings that arise out of the same office. See CJE Opinion 2001-1. Your fiance's interest in the success of the District Attorney's office and in units unconnected to your fiance's daily work is more attenuated. Your fiance has no supervisory involvement with other units and consequently has a much more diffuse interest in the success of the office as a whole. See CJE Opinion 96-3. Your fiance obtains no financial or direct professional benefit from the success of other units within the District Attorney's office. While your fiance may (or may not) have a personal preference for the overall development of the law from a prosecutorial perspective, the fact that a spouse has a point of view on particular legal issues has not traditionally been the basis of disqualification without a more direct interest in or connection to the proceeding. In this circumstance, absent additional facts, the objective, disinterested observer, informed of the relevant facts, would conclude that recusal is not required. (1)
Lawyers employed in the District Attorney's office do switch units or jobs, so any change in your fiance's employment would require you to revisit the issue to determine whether your spouse will be having any substantial involvement, including an administrative or supervisory role, in cases that might come to you. In addition, while per se recusal is not required, whether you should disqualify yourself from a particular case or series of cases is left to your discretion. See CJE Opinion 2001-1. Lena v. Commonwealth, 369 Mass. 571, 575 (1976), offers important guidance:
"Faced . . . with a question of his capacity to rule fairly, the judge [should] . . . consult first his own emotions and conscience. If he passe[s] the internal test of freedom from disabling prejudice, he must next attempt an objective appraisal of whether this was 'a proceeding in which his impartiality might reasonably be questioned.'"
Id., citing Canon 3 (C) (1).
1. In a similar situation, seven justices of the United State Supreme Court have concluded that they are not required to automatically recuse themselves from cases in which the justice's spouse is a partner in the firm appearing before the Court. Absent a unique factor that makes recusal appropriate, they will decline to exercise their discretion to recuse as long as they receive written confirmation that the spouse's partnership share will not be affected by income from the Supreme Court litigation. See generally 28 U.S.C. 455 (b) (5) (iii), and J. Shaman, S. Lubet, J. Alfini, Judicial Conduct and Ethics, § 4.12 (3d ed. 2000).