Opinion No. 95-9

April 18, 1995

TOPIC: Judge's spouse who is a secretary for the State's Attorney in a county in which the judge is regularly assigned.

DIGEST: The judge is not disqualified from hearing criminal, juvenile or traffic proceedings, simply because the spouse is a secretary in the State's Attorney's Office.

REFERENCES: Illinois Supreme Court Rule 62B of the Code of Judicial Conduct, Canon 2 (145 Ill.2d R. 62); Illinois Supreme Court Rules 63C(1)(a), (e), (i), (iii) and (iv) and 63A(4)(a) of the Code of Judicial Conduct, Canon 3 (145 Ill.2d R. 63); Illinois Supreme Court Rule 412; Illinois Judicial Ethics Committee Opinion 94-18.

FACTS

A judge who is presently assigned to a civil docket, but who will in the future by rotation be assigned to the criminal, juvenile or traffic docket, is married to a secretary in the State's Attorney's Office in the county to which the judge is assigned. The secretary handles routine clerical matters, as well as press releases for the State's Attorney. The judge and spouse do not discuss matters concerning the State's Attorney's Office other than routine discussion between any husband and wife concerning their work.

QUESTION

Should the judge disqualify him/herself from handling criminal, juvenile or traffic cases in the county in which his or her spouse is employed by the State's Attorney of that county?

OPINION

Illinois Supreme Court Rule 62B states that a judge should not allow his or her family, social, or other relationships to influence his or her judicial conduct or judgment. There is absolutely no suggestion that the judge's spouse has or ever will attempt to influence the judge's judicial conduct or judgment.

Illinois Supreme Court Rule 63C(1)(a) mandates that a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including, but not limited to instances where the judge has a personal bias or prejudice concerning a party or a party's lawyer, or has personal knowledge of disputed evidentiary facts concerning the proceedings. Again, there is no suggestion that the judge's spouse has attempted to influence the judge's decision, disclose disputed evidentiary facts concerning the proceeding or asks that the judge favor the State's Attorney's Office. Moreover, Supreme Court Rule 412 requires comprehensive disclosure to an accused by the State and the only matters not subject to disclosure are the work product, informant's identities and matters involving national security.

Subparagraph (e) of that same Rule requires disqualification when the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such person is a party to the proceeding, or an officer, director, or trustee of a party, or is known by the judge to have more than de minimis interest that could be substantially affected by the proceeding. A secretary is clearly not one of the defined persons and has no more than a de minimis interest in the proceedings.

Subparagraph (iv) requires disqualification if the person is, to the judge's knowledge, likely to be a material witness in the proceeding. There may be circumstances in which the defense attorney would claim that there was not full disclosure and may subpoena a secretary in which case the judge would be required to disqualify himself or herself.

Illinois Supreme Court Rule 63A(4)(a) precludes the judge from initiating, permitting, or considering ex parte communications, or from considering other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding, except that such communications for scheduling administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized with certain safeguards, as stated in the Rule. It is conceivable that the judge would contact the State's Attorney's Office regarding a scheduling, administrative, or emergency matter, but that would be the case whether or not the judge's spouse was a secretary or not.

Although the Illinois Code does not contain a recommendation, let alone a requirement, that judges disclose information regarding disqualification, the Committee nevertheless believes that such disclosure is the better practice if under the circumstances of the particular case, the information is relevant to a reasonable argument that disqualification is required. (See Illinois Judicial Ethics Committee Opinion 94-18).