Opinion 14A
(This Opinion discusses a prior version of the Canons of Judicial Conduct: the most comparable current rule is See Rule 2-2.11 Recusal, Subdivision (A)(5).)
Issue:
In what case should an Associate Circuit Judge disqualify himself when prior to assuming the bench the judge was a prosecuting attorney for the same county?
Discussion:
Supreme Court Rule 2, Canon 3(D)(1)(b) is as follows:
It is clear that the judge should recuse in all cases that the judge personally handled. In addition, the judge should also recuse in those cases wherein the judge has knowledge of confidential communications about the case which may have been made to the judge by fellow prosecutors, witnesses, victims, opposing parties or counsel.
Recusal is not required in those cases which were pending in the prosecutor’s office when the judge served as a prosecutor so long as the judge neither handled nor has any knowledge of the case. To avoid the appearance of impropriety, however, the judge should disclose to the parties the fact that the case was pending in the prosecutor’s office when the judge was employed there and the extent of the judge’s knowledge of the case. The judge should recuse upon request of either party in any such case.
Opinion 14 dated January 12, 1979, is hereby withdrawn and replaced by this Opinion 14A.
(Dated: September 9, 1997)
COMMISSION ON RETIREMENT, REMOVAL AND DISCIPLINE
OPINION 14A
OPINION 14A
Issue:
In what case should an Associate Circuit Judge disqualify himself when prior to assuming the bench the judge was a prosecuting attorney for the same county?
Discussion:
Supreme Court Rule 2, Canon 3(D)(1)(b) is as follows:
“D. Recusal.
(1) A judge should recuse in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where the judge:
* * *
(b) served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; …
Commentary
“A lawyer in a governmental agency does not necessarily have an association with other lawyers employed by that agency within the meaning of this subdivision (D(1)(b); a judge formerly employed by a governmental agency, however, should recuse in a proceeding if the judge’s impartiality might reasonably be questioned because of such association.”
It is clear that the judge should recuse in all cases that the judge personally handled. In addition, the judge should also recuse in those cases wherein the judge has knowledge of confidential communications about the case which may have been made to the judge by fellow prosecutors, witnesses, victims, opposing parties or counsel.
Recusal is not required in those cases which were pending in the prosecutor’s office when the judge served as a prosecutor so long as the judge neither handled nor has any knowledge of the case. To avoid the appearance of impropriety, however, the judge should disclose to the parties the fact that the case was pending in the prosecutor’s office when the judge was employed there and the extent of the judge’s knowledge of the case. The judge should recuse upon request of either party in any such case.
Opinion 14 dated January 12, 1979, is hereby withdrawn and replaced by this Opinion 14A.
(Dated: September 9, 1997)