Opinion 188
(The rules this opinion discusses are still in effect.)
COMMISSION ON RETIREMENT, REMOVAL AND DISCIPLINE
OPINION 188
Issue:
May a judge preside over a case where a member of the judge's family is a judge who was previously assigned to the case and:
A. Was recused for cause from the case;
B. Was removed from the case pursuant to the change of judge provisions of the Supreme Court Rules 32.06 or 51.05;
C. Issued an ex parte order of protection;
D. Whose decision is being reviewed pursuant to a de novo appeal, a direct appeal, a post-conviction motion or extraordinary remedy appeal
Discussion:
Supreme Court Rule 2-1.2 requires that a judge promote confidence in the judiciary by avoiding impropriety. Supreme Court Rule 2-2.2(A) requires that a judge shall perform all duties of judicial office fairly and impartially. Supreme Court Rule 2-2.4 requires that a judge shall not permit family relationships to influence the judge's judicial conduct and shall not convey the impression that any person is in a special position to influence the judge. Supreme Court Rule 2-2.11(A) requires that a judge recuse in any proceeding in which the judge's impartiality might reasonably be questioned.
In the Opinion of the Commission on Retirement, Removal and Discipline the situations listed A through D above are examples where the existence of a family relationship between judges working on the same case creates the appearance of impropriety requiring recusal.
The Commission restricts this opinion to family members as set out in the terminology section of the Code of Judicial Conduct as follows:
"Member of the judge’s family” means a spouse, child, grandchild, parent, grandparent or other relative or person with whom the judge maintains a close familial or intimate relationship."
The remittal of disqualification provision of Supreme Court Rule 2-2.11(C) may be used to waive recusal as described above upon request.
(Dated: May 4, 2022)