Advisory Committee on Judicial Ethics: Family Opinion 09-97

Advisory Committee on Judicial Ethics

Appearance of Impropriety

Family Opinion 09-97

Background: The inquirer’s first cousin’s spouse is an assistant district attorney/investigator in the District Attorney’s Office for the same county where the inquirer presides. The inquirer is not assigned to hear criminal cases, but on rare occasions, the inquirer may hear and decide on an application for a search warrant. The inquirer asks whether he must first inquire as to his first cousin’s spouse’s involvement with any search warrant application that comes before him.

Opinion: A judge whose first cousin’s spouse is an assistant district attorney/investigator in the same county where the judge presides must disqualify him/herself in any case where the first cousin’s spouse is involved. The application for a search warrant is an ex parte proceeding, and therefore, remittal disqualification is not permitted. In addition, because the spouse’s involvement is not readily apparent in an application for a search warrant, the judge must inquire to avoid the appearance of impropriety.