Must a judge disqualify in cases involving the police department that employs the judge's spouse?

Currency note

The Board flags this opinion as not current: it issued in 1989 under Ohio's former Code of Judicial Conduct (superseded by the Ohio Code of Judicial Conduct effective March 1, 2009), and Canons 1 through 6 were later amended effective May 1, 1997. Treat this page as historical context, not current guidance. Verify against the current Ohio Code of Judicial Conduct before relying on any specific rule mentioned here.

Plain-English summary

The question was whether any ethical problem arises when a judge's spouse is a police officer in the same jurisdiction. The Board pointed to Canon 3C(1)(d)(iv), under which a judge should be disqualified when the judge's spouse is likely to be a material witness in a proceeding before the judge. So if the judge knows the spouse will be called as a material witness, the judge should disqualify, subject to the remittal procedure in Canon 3D, and the judge should make a determined effort to avoid being assigned cases in which the spouse is a witness.

The Board also restated the general duties to avoid the appearance of impropriety and to promote public confidence in the integrity and impartiality of the judiciary (Canon 2A) and not to let family relationships influence judgment (Canon 2B). Beyond these general provisions, the Board concluded that nothing in the Code precludes a judge from sitting in cases involving the police department that employs the spouse; instead, the judge should make a case-by-case determination of whether the relationship requires disqualification based on the appearance of impropriety or any other Code provision.

Common questions

Q: Must the judge step aside when the spouse will testify?

A: Under this opinion, yes. The Board concluded a judge should disqualify when the police-officer spouse is likely to be a material witness, under Canon 3C(1)(d)(iv), subject to remittal under Canon 3D.

Q: Is the judge barred from all of the department's cases?

A: No. The Board concluded nothing in the Code precludes the judge from sitting in cases involving the spouse's department generally, leaving it to a case-by-case appearance-of-impropriety determination.

Background and rules framework

The opinion interprets Ohio's former Code of Judicial Conduct, Canon 3C(1)(d)(iv) (disqualification when a spouse is likely a material witness), Canon 3D (remittal of disqualification), and Canons 2A and 2B (appearance of impropriety and avoiding undue influence of relationships).

Citations and references

Rules of Judicial Conduct (Ohio):

• Former Code of Judicial Conduct, Canon 3C(1)(d)(iv), spouse as material witness
• Former Code of Judicial Conduct, Canon 3D, remittal of disqualification
• Former Code of Judicial Conduct, Canon 2A and 2B

See also

• Ohio BPC Opinion 1989-010: Judge Disqualification When a Third-Degree Relative Appears as Counsel
• Ohio BPC Opinion 1987-024: Judge's Spouse as Prosecutor, Recusal
• Ohio BPC Opinion 1989-020: Spouses Serving as Judges in the Same County

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-89-019.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804

OFFICE OF SECRETARY

OPINION 89-19
Issued June 16, 1989

[Former CJC Opinion-provides advice under the former Ohio Code of Judicial Conduct which is superseded by the Ohio Code of Judicial Conduct, eff. 3/1/2009.]

[Not Current- subsequent rule amendments to Canons 1 through 6, Ohio Code of Judicial conduct, eff. May 1, 1997]

SYLLABUS: Judges should recuse themselves from any proceeding where their impartiality might reasonably be questioned. A judge should be disqualified from proceedings where the judge's spouse is likely to be a material witness in the proceeding. Such a disqualification may be remitted as provided in Canon 3D.

OPINION: We have before us your request for an advisory opinion on whether there would be any ethical problems as a result of a judge whose spouse is a police officer in the same jurisdiction.

Under Canon 3C(1)(d)(iv) a judge should be disqualified when the judge's spouse is likely to be a material witness in a proceeding before the judge. Therefore, if the judge knows her spouse is going to be called as a material witness, the judge should disqualify herself. This disqualification may be remitted, if otherwise proper, according to the procedure set forth in Canon 3D. However, the judge should make a determined effort to avoid being assigned any cases in which the judge's spouse is a witness.

Judges must avoid the appearance of impropriety and act in a manner which promotes the public confidence in the integrity and impartiality of the judiciary. Code of Judicial Conduct, Canon 2A. A judge must also not allow family, or other relationships to influence the judge's conduct or judgment under Canon 2B.

Other than these general provisions, there is nothing in the Code of Judicial Conduct which precludes a judge from sitting in cases involving a police department which employs the judge's spouse. Instead, a judge should make a case-by-case determination of whether any relationship requires the judge's disqualification based upon the appearance of impropriety or any other Code provision.

This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Judicial Conduct.