Opinion 182
(This Opinion discusses a prior version of the Canons of Judicial Conduct; the most comparable current rule is 2-2.11 – Recusal, Subdivision (C); and 2-2.4 External Influences on Judicial Conduct, Subdivision (B).)
Issue:
May a judge employ the Remittal of Disqualification provision of the Code of Judicial Conduct to avoid recusal in a case wherein the judge knows any party is a great-grandparent, grandparent, parent, step-parent, guardian, foster parent, spouse, former spouse, child, step-child, foster child, ward, niece, nephew, brother, sister, uncle, aunt or cousin?
Discussion:
The Remittal of Disqualification provision of the Code of Judicial Conduct (Canon 3F) allows a judge, having disclosed on the record the basis of disqualification, to nonetheless participate in a proceeding provided that the base of the disqualification is “other than personal bias or prejudice concerning the party and lawyers” and provided that the parties and attorneys, so advised of the basis of disqualification, nonetheless agree that the judge may participate in the proceeding.
On the other hand, VAMS 105.464.1 provides:
In the opinion of the Commission on Retirement, Removal and Discipline, while Canon 3F’s provision on Remittal of Disqualification would appear to allow a judge, with consent of the attorneys and parties, to remain on some proceedings wherein disqualification would otherwise be required, the dictates of VAMS 105.464.1 limits the application of Canon 3F.
Canon 3B(2) requires that a judge shall be faithful to the law and the law, VAMS 105.464.1 contains no remittal of disqualification provision. Even with the consent of the attorneys and parties, a judge may not participate in any proceeding wherein a party is the judge’s great-grandparent, grandparent, parent, stepparent, guardian, foster parent, spouse, former spouse, child, stepchild, foster child, ward, niece, nephew, brother, sister, uncle, aunt, or cousin.
(Date: July 21, 2008)
COMMISSION ON RETIREMENT, REMOVAL AND DISCIPLINE
OPINION 182
Issue:
May a judge employ the Remittal of Disqualification provision of the Code of Judicial Conduct to avoid recusal in a case wherein the judge knows any party is a great-grandparent, grandparent, parent, step-parent, guardian, foster parent, spouse, former spouse, child, step-child, foster child, ward, niece, nephew, brother, sister, uncle, aunt or cousin?
Discussion:
The Remittal of Disqualification provision of the Code of Judicial Conduct (Canon 3F) allows a judge, having disclosed on the record the basis of disqualification, to nonetheless participate in a proceeding provided that the base of the disqualification is “other than personal bias or prejudice concerning the party and lawyers” and provided that the parties and attorneys, so advised of the basis of disqualification, nonetheless agree that the judge may participate in the proceeding.
On the other hand, VAMS 105.464.1 provides:
1. No person serving in a judicial or quasi-judicial capacity shall participate in such capacity in any proceeding in which the person knows that a party is any of the following: the person or the person’s great-grandparent, grandparent, parent, stepparent, guardian, foster parent, spouse, former spouse, child, stepchild, foster child, ward, niece, nephew, brother, sister, uncle, aunt or cousin.
2. No provision in this section shall be construed to prohibit him from entering an order disqualifying himself or herself or transferring the matter to another court, body, or person for further proceedings.
2. No provision in this section shall be construed to prohibit him from entering an order disqualifying himself or herself or transferring the matter to another court, body, or person for further proceedings.
In the opinion of the Commission on Retirement, Removal and Discipline, while Canon 3F’s provision on Remittal of Disqualification would appear to allow a judge, with consent of the attorneys and parties, to remain on some proceedings wherein disqualification would otherwise be required, the dictates of VAMS 105.464.1 limits the application of Canon 3F.
Canon 3B(2) requires that a judge shall be faithful to the law and the law, VAMS 105.464.1 contains no remittal of disqualification provision. Even with the consent of the attorneys and parties, a judge may not participate in any proceeding wherein a party is the judge’s great-grandparent, grandparent, parent, stepparent, guardian, foster parent, spouse, former spouse, child, stepchild, foster child, ward, niece, nephew, brother, sister, uncle, aunt, or cousin.
(Date: July 21, 2008)