Search
Member Login
2005-02: Duty of judge to disqualify himself or herself from cases in which the judge’s son-in-law participates as an assistant state’s attorney.

2005-02: Duty of judge to disqualify himself or herself from cases in which the judge’s son-in-law participates as an assistant state’s attorney.

Opinion No. 05-02
April 28, 2005

Topic: Duty of judge to disqualify himself or herself from cases in which the judge’s son-in-law participates as an assistant state’s attorney.

Digest: A judge is disqualified from criminal cases in which the judge’s son-in-law, in his capacity as an assistant state’s attorney, signs the charging instrument or otherwise acts as a lawyer in the proceedings.

References: Illinois Supreme Court Rule 63C(1) and 63D; Committee Commentary to Rule 63; People v. Moffit, 202 Ill. App. 3d 43, 56 (1st Dist. 1990); McCuin v. Roberts, 714 F.2d 1255 (5th Cir. 1983); Mangini v. U.S., 314 F.3d 1158, 1160 (9th Cir. 2002); State v. Vidales, 571 N.W. 2d 117 (Neb. 1997); People v. Dycus, 246 N.W. 2d 326, 327 (Mich. 1976); State v. Harrell, 546 N.W.2d 115 (Wis. 1996) (Abrahamson, J., concurring); State v. Logan, 689 P.2d 778 (Kan. 1984); DiversiFoods v. DiversiFoods, 595 F.Supp. 133 (N.D. Il. 1984); Illinois Judicial Ethics Committee Opinion No. 96-18.

FACTS

A judge presides over felony cases from arraignment through trial in the same county in which the judge’s son-in-law serves as an assistant state’s attorney. The son-in-law’s duties include signing informations and representing the State at a defendant’s first court appearance during which bond is set, a defense attorney appointed if necessary, and a preliminary hearing date scheduled. The son-in-law has no involvement in the case after the initial court appearance.

QUESTION

May the judge preside over cases in which the judge’s son-in-law signs the information or appears in court on behalf of the State?

OPINION

The fact that a judge’s son-in-law is employed as an assistant state’s attorney does not, standing alone, disqualify the judge from cases prosecuted by the state’s attorney’s office. As stated in People v. Moffit, 202 Ill.App.3d 43, 56 (1st Dist. 1990):

It is preposterous to assume that a judge’s propensity to convict criminal defendants would increase simply because his or her son or daughter is an assistant state’s attorney.

See also Committee Commentary to Illinois Supreme Court Rule 63C(1)(e) ("The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not by itself disqualify the judge."); People v. Dycus, 246 N.W. 2d 326 (Mich.1976) (fact judge is related to an attorney employed by the prosecutor’s office in no way raises any "taint, or suspected taint of bias or prejudice of the judge"); State v. Harrell, 546 N.W.2d 115 (Wis. 1996, Abrahamson, concurring) (a reasonable observer would not find an appearance of partiality where the judge’s lawyer-spouse is employed by the prosecutor’s office).

Illinois Supreme Court Rule 63C(1)(3)(ii) provides, however, that disqualification is required in matters in which a person within the third degree of relationship to the judge or the judge’s spouse is "acting as a lawyer in the proceedings." Rule 63C(1) specifically provides that a judge’s impartiality might reasonably be questioned under such circumstances. As a result, although Rule 63C does not require disqualification merely because the judge’s son-in-law works for the prosecutor’s office, disqualification is required in all cases in which the son-in-law is personally acting as a lawyer.

The phrase "acting as a lawyer in the proceedings" has been construed broadly to include any type of active participation in the representation of a party. State v. Logan, 689 P.2d 778 (Kan. 1984) (disqualification required if judge’s relative actually participates in the case); DiversiFoods v. DiversiFoods, 595 F.Supp. 133 (N.D. Il. 1984) (disqualification necessary if relative actively participates in the litigation). Filing an appearance or appearing in court on behalf of a party constitutes acting as a lawyer in the matter. See Illinois Judicial Ethics Committee Opinion No. 96-18. Other activities that have been determined to constitute active participation in a case include, assisting with civil discovery (McCuin v. Roberts, 714 F.2d 1255 (5th Cir. 1983)), communicating with an expert witness (Mangini v. U.S., 314 F.3d 1158, 1160 (9th Cir. 2002)), and signing an information in a criminal case (State v. Vidales, 571 N.W. 2d 117 (Neb. 1997).

Here, the judge’s son-in-law, by appearing for the State at a defendant’s first court appearance or signing the information, has acted as a lawyer in the proceeding thereby disqualifying the judge. In addition, the fact that the judge might be required to review bond determinations in which the son-in-law participated or review the sufficiency of informations prepared and signed by the son-in-law, could cause the judge’s impartiality to be reasonably questioned.

Finally, it should be noted that where disqualification is required under Rule 63C for a reason other than the personal bias or prejudice of the judge, the parties may remit the disqualification by following the procedure set forth in Rule 63D.