Recusal: Hearing Guardianship Cases Brought by Hospital Where Child's Spouse is Employed

June 8, 2006

CJE Opinion No. 2006-6

You are a judge in the Trial Court, and you seek advice regarding any conflict of interest or appearance of impropriety that would arise from your hearing guardianship petitions initiated by the hospital in which your child's spouse is employed.

Background. The facts surrounding your request are these. Your child's spouse has recently been hired as a codirector of the critical care unit in a local hospital in the county in which you sit. He/she will be a salaried employee; he/she will not serve as an officer, trustee, or member of the board of directors. As a judge, you routinely hear guardianship cases in which the hospital is the petitioner and seeks appointment of guardians for patients who are about to be released and may be incompetent as regards medical and life decisions, or who are unable to provide for their daily care.

When petitions are filed, a local attorney hired by the hospital appears before you on a temporary guardianship motion and then again on at least one more occasion for the permanent guardianship proceeding. In the case of mentally ill patients, a guardian ad litem is appointed to investigate whether a guardianship is required and whether the proposed guardian, usually a family member, is appropriate to fulfill that role. You do not anticipate that your child's spouse will be directly involved in these cases. It is possible that he/she may have treated a proposed ward if that person had been a patient in the critical care unit, but most of the cases are initiated in behalf of in-patients, often from a psychiatric unit, or in connection with discharge from a medical unit. It is unlikely that your child's spouse would be called as a witness in such matters. You appropriately recognize in your request that, if that occurred, you would need to recuse yourself.

Analysis. For the reasons stated herein, the committee is of the opinion that there is no need for you to recuse yourself in guardianship cases solely because your child's spouse is employed at the hospital. Section 2 B requires that "[a] judge shall not allow family, social, political, or other relationships to influence the judge's judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge." Section 3 E (1) (g) precludes a judge from hearing matters where "the judge knows, or reasonably should know, that the judge's spouse or child wherever residing, or any other member of the judge's family residing in the judge's household, has . . . (ii) a relationship interest to a party to the proceeding where the party could be substantially affected by the outcome of the proceeding or (iii) any other more than de minimis interest that could be substantially affected by the outcome of the proceeding." In the current circumstances these admonitions are not applicable.

In the guardianship cases you describe, the hospital, although the driving force in the proceedings, has no financial or other identifiable interest in the outcome. If your child's spouse is not directly involved, there is no appearance of impropriety problem under Section 2 B or "interest" problem under Section 3 E (1) (g). Of course, as you acknowledge, if your child's spouse plays a role in actual cases the analysis changes. If he/she filed a petition, or otherwise played a role in initiating the process, was the treating physician, or would be a witness, then recusal would be required. See CJE Opinion No. 2001-16 (concluding that judge was not required to recuse from cases in county where judge sat and son was assistant district attorney, provided that judge did not hear cases litigated by son or matters as to which son exercised any supervisory role).