Propriety of Presiding on Cases Involving a District Attorney's Office When Spouse is First Assistant District Attorney

October 4, 1996

CJE Opinion No. 96-3

You request an opinion concerning the propriety of your presiding as a district court judge over cases involving a particular District Attorney's office in which your spouse serves as the First Assistant District Attorney.

You state that the District Attorney is responsible for all policy and hiring decisions; a Chief District Court Prosecutor is responsible for the assignment of cases and the supervision of assistant district attorneys; and a full time assistant district attorney prosecutes the cases in three outlying District Courts. Your spouse does not prosecute cases in the District Court. Your spouse is responsible for the "day to day administration" of the office of the District Attorney and prosecutes homicide cases in the Superior Court.

Canon 3(C)(1) states that a judge should "disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." The test is whether an objective, disinterested observer, informed of the relevant facts, would have a significant doubt over whether the judge was impartial. Pepsico Inc. v. McMillan, 764 F.2d 458 (7th Cir. 1985).

You ask specifically whether you can rely on certain language in CJE Opinion 92-1 where, after addressing sps raiseecific issued by Canons 3(C)(1)(d) and 3(D), we focused on the more general question of whether any impropriety is involved where a District Court judge presides in a court when his father serves as a senior attorney in the office of the District Attorney which handles cases in that court.

This Committee acknowledged that the question was difficult to answer. (1) We ultimately concluded that the issue with respect to that inquiry turned on the responsibility of the father as senior attorney for each case involving his office. We stated "that it must be not only that supervision comes from another attorney but that [the] father must have no involvement in, or responsibility for, any case heard by [that judge]. It would be consistent with the spirit of the Canons that arrangements to that effect be formalized in a public manner so that the actuality and the public perception coincide."

The question now presented is whether the nature of your circumstances requires a different result. Two aspects of those circumstances must be considered: first, the wife-husband relationship between you and the First Assistant District Attorney; and, second, the relationship of the First Assistant to the work of the District Attorney's office.

It could be argued that a wife and husband share a greater interest in the financial security of the other than an adult son and his father. One State appellate court found the existence of a marriage relationship between a judge and a deputy district attorney in the same county sufficient by itself to require disqualification. (2) For purposes of responding to your request, we are not required to draw a distinction between the son-father relationship discussed in CJE Opinion 92-1 and the wife-husband relationship involved in your question. Either relationship is, facially, sufficiently close to engender maximum concern under canons that are concerned with the relationship between family ties and judicial impartiality.

All assistant district attorneys, by statute and regardless of title, serve "at [the] pleasure" of the District Attorney. Moreover, your spouse serves by appointment of the District Attorney in the position of First Assistant District Attorney which by title suggests primacy within the office in terms of both remuneration and responsibility for the work of the office, second only to the District Attorney himself or herself. Your spouse has, as you indicate, primary administrative responsibility for running the office. While it is conceivable that a functional division of responsibility within the office may enable the full-time assistant district attorney who prosecutes cases in the three outlying District Courts to operate with relative autonomy and independence, the functional division may be less important than the perception of litigants and the general public concerning your spouse's responsibilities as First Assistant District Attorney for the operations of, and interest in the success, of that office. The First Assistant District Attorney is understandably perceived by litigants and by the community to have responsibility, second only to the District Attorney, for all the work of the office.

There can be no quarrel over the inappropriateness of a judge hearing cases involving the office of a District Attorney when that District Attorney is a close relative of the judge. A disinterested observer would reasonably conclude that the professional relationship between a District Attorney and his or her First Assistant is such that the same standard applies when the judge is a close relative of the District Attorney's First Assistant.

This Committee concludes, therefore, that an objective, disinterested observer, informed of the relevant facts, might reasonably question your impartiality when presiding over cases involving the office of the District Attorney in which your spouse serves as First Assistant, and that, therefore, your presiding over such cases involves you in the proscription of Canon 3(C)(1).

Canon 3(C)(1) generally requires recusal by the judge. Where the cause of the appearance of partiality is a spousal relationship, in some cases Canon 3(D) allows remittal of disqualification. Where doubts as to the judge's impartiality are as reasonably grounded as in this case, there is some question whether Canon 3(C)(1) permits any course other than recusal. Even if remittal is technically available, in our view it is an inappropriate answer to the problem in your case.

In Opinion 92-1 we discussed the coercive elements which led to the removal of Canon 3(D) from the Code applicable to Federal judges. To that undesirable aspect of seeking the litigants' consent must be added the fact that the problem in this case is not particular to an isolated case but is situational, affecting all cases in which the office of the District Attorney makes an appearance. Faced with other defendants consenting to have you preside at their trials, defendants and their counsel who are hesitant to do so may feel special coercive pressure to agree. In 92-1, where the father-son relationship created a problem in some but not all of the cases handled by that District Attorney's office, we concluded, with reservations, that remittal of disqualification could be a permissible alternative. Here, in contrast, the universality of the problem, and the strong public interest in the appearance of strict impartiality in criminal cases lead us to conclude that remittal of disqualification is not an appropriate alternative in your situation.

The Committee advises you, therefore, that you should refrain from sitting on any case where the Commonwealth is represented by the District Attorney's office in which your spouse serves as the First Assistant District Attorney.

1. The troublesome nature of the inquiry is exemplified by the opinion of the Kansas Court of Appeals and the contrary opinion (not without dissent) of the Kansas Supreme Court on the same question except that the father-son roles were reversed. Kansas v. Logan, 678 P.2d 181, modified at 689 P.2d 778 (1984).

2. Smith v. Beckman, 683 P.2d 1214 (1984)