Opinion 5
(This Opinion discusses a prior version of the Canons of Judicial Conduct; the most comparable current rules are Rule 2-2.11 Recusal, Subdivision (A)(1) & (2)(d) and Rule 2-1.2 Promoting Confidence in the Judiciary)
Issue:
Should a Probate Judge disqualify himself from an involuntary hospitalization hearing (202.807 RSMo.) when his spouse is employed as a social worker at the state mental institution where the patient is being treated?
Discussion:
It is the opinion of the Commission that the issue of disqualification depends on the totality of circumstances and the exact nature of the relationship between the patient and the judge’s spouse. There are three specific situations that require discussion: where the spouse will not be a witness; where the spouse will be a witness; and, where the spouse might be a witness.
If the judge’s spouse has no knowledge of or contact with the patient and works in a section of the hospital where the patient is not receiving treatment then there does not appear to be any basis on which the judge might reasonably have his impartiality questioned. (Rule 2, Canon 3C(1)). In the first situation the judge should not disqualify himself.
In the second situation, the social worker-spouse works directly with the patient. Rule 2, Canon 3Cd iii clearly prohibits the judge from presiding if his spouse would be a witness. While the usual hearing does not require more than the doctor’s testimony, the possibility of the wife being a witness or of her experiences contributing to the doctor’s testimony becomes too great. When the wife works directly with the patient, the judge should disqualify himself.
In the third situation, the spouse works in the same section of the hospital at which the patient is being treated, and observes the patient, but does not directly work with him. The judge should be careful to determine whether there is a reasonable possibility of his wife being called as a witness. “A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned.” (Canon 3C(1)). In the usual commitment hearing the only witness is the doctor. However, it is possible in a contested hearing that other hospital staff may be called upon to attest to behavior or treatment of the patient. The psychiatrist’s testimony is often based on the reports and observations of the hospital staff. Experiences of the social worker in her dealings with the patient are often helpful to the psychiatrist in making his/her evaluations. Hence, the more the social worker has to do with the patient the more likely it is for her to either become a witness or for her to contribute to theeventual diagnosis of the treating psychiatrist. In the third situation the issue of disqualification would require a case by case analysis.
Finally, in all three situations the Probate Judge should be guided by the general principle espoused in Canon 2 of the Code of Judicial Conduct that a judge should avoid even the appearance of impropriety in his official duties.
(Undated)
COMMISSION ON RETIREMENT, REMOVAL AND DISCIPLINE
OPINION 5
OPINION 5
Issue:
Should a Probate Judge disqualify himself from an involuntary hospitalization hearing (202.807 RSMo.) when his spouse is employed as a social worker at the state mental institution where the patient is being treated?
Discussion:
It is the opinion of the Commission that the issue of disqualification depends on the totality of circumstances and the exact nature of the relationship between the patient and the judge’s spouse. There are three specific situations that require discussion: where the spouse will not be a witness; where the spouse will be a witness; and, where the spouse might be a witness.
If the judge’s spouse has no knowledge of or contact with the patient and works in a section of the hospital where the patient is not receiving treatment then there does not appear to be any basis on which the judge might reasonably have his impartiality questioned. (Rule 2, Canon 3C(1)). In the first situation the judge should not disqualify himself.
In the second situation, the social worker-spouse works directly with the patient. Rule 2, Canon 3Cd iii clearly prohibits the judge from presiding if his spouse would be a witness. While the usual hearing does not require more than the doctor’s testimony, the possibility of the wife being a witness or of her experiences contributing to the doctor’s testimony becomes too great. When the wife works directly with the patient, the judge should disqualify himself.
In the third situation, the spouse works in the same section of the hospital at which the patient is being treated, and observes the patient, but does not directly work with him. The judge should be careful to determine whether there is a reasonable possibility of his wife being called as a witness. “A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned.” (Canon 3C(1)). In the usual commitment hearing the only witness is the doctor. However, it is possible in a contested hearing that other hospital staff may be called upon to attest to behavior or treatment of the patient. The psychiatrist’s testimony is often based on the reports and observations of the hospital staff. Experiences of the social worker in her dealings with the patient are often helpful to the psychiatrist in making his/her evaluations. Hence, the more the social worker has to do with the patient the more likely it is for her to either become a witness or for her to contribute to theeventual diagnosis of the treating psychiatrist. In the third situation the issue of disqualification would require a case by case analysis.
Finally, in all three situations the Probate Judge should be guided by the general principle espoused in Canon 2 of the Code of Judicial Conduct that a judge should avoid even the appearance of impropriety in his official duties.
(Undated)