Opinion No. 96-6

April 17, 1996

TOPIC: Duty to disqualify from criminal cases generally when judge's spouse is the complaining witness in a pending indictment.

DIGEST: A judge need not disqualify him or herself from hearing all criminal cases because his or her spouse is a complainant in a single indictment pending in that same courthouse but not on that judge's call.

REFERENCES: Illinois Supreme Court Rule 62A of the Code of Judicial Conduct, Canon 2 (145 Ill.2d R. 62); Illinois Supreme Court Rule 63C(1) and Rule 63C(1)(d) and (e)(iii) of the Code of Judicial Conduct, Canon 3 (145 Ill.2d R. 63); People v. Storms, 155 Ill.2d 498, 617 N.E.2d 1188 (1993).

FACTS

The judge's spouse is engaged in a business and on finding that the secretary had been stealing, the spouse filed a criminal complaint and the State's Attorney has sought and received an indictment. The judge usually hears criminal cases on his or her call, but will have no contact with that case.

QUESTION

Does the judge have an obligation to disqualify him or herself from other criminal cases or from any cases where the State's Attorney represents any party in a case before the judge?

OPINION

No. While a judge must avoid the appearance of impropriety and conduct him or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, public concerns in these areas must be reasonable and it would be unreasonable to conclude that a judge could not be fair and reasonable in other criminal cases from the mere fact that a judge's spouse is a witness in an unrelated criminal case. The State's Attorney represents the state and not the individual complainant. See also People v. Storms 155 Ill.2d 498, 617 N.E.2d 1188 (1993) where a judge, who had formerly prosecuted the same defendant eight years previously in a different criminal charge, was not disqualified from the case at bar merely because of the prior prosecution.

Under Rule 63C(1) a judge shall disqualify him or herself in a proceeding in which the judge's impartiality might reasonably be questioned. Each judge must decide that for him or herself in every case. However, that is not likely to apply to these facts.

Rules 63C(1)(d) and (e) refer to circumstances where the judge or the judge's spouse has an economic interest in the subject matter in controversy that is more than de minimus and could be substantially affected by the proceeding. While a complainant might receive some restitution, that is hardly an economic interest envisioned by these rules.

Therefore, a judge is not called to disqualify him or herself under these circumstances.