Opinion No. 04-04

September 22, 2004

Topic: Judge who exercises disqualification in a litigant's case when same litigant later appears before the judge in a related case.

Digest: A judge who has exercised disqualification in a case regarding a litigant because he has come to possess direct knowledge of the case should exercise disqualification at any subsequent proceedings, which are related to the fact that prompted the original disqualification.

Reference: Illinois Supreme Court Rules 63 C(1)(a)(b); Committee Commentary to Illinois Supreme Court Rule 63; IJEC Opinion No. 03-02; Liteky v. United States , 510 U.S. 540 (1994); People v. Page, 183 Misc. 2d 370, 702 N.Y.S. 552 (Cty. Ct. N.Y., Nassau (2000); Houck v. Florida, 669 So. 2d 1131, 1132 (Fla. App. 3rd Dist. 1996); Shaman, Lubet, Alfini, Judicial Conduct and Ethics, (3rd ed. 1997).

FACTS

Three years ago, Judge X heard a misdemeanor case involving Defendant A, who violated the domestic violence order of protection. Judge X placed Defendant A on probation.

Judge X later presided over a hearing during which Defendant A admitted that he had committed a second act of domestic violence thereby violating the Order of Protection. Based on Defendant's admission to a second act of domestic violence, the state attorney filed felony charges. The felony case was assigned to Judge X. upon learning of the assignment, Judge X, on his own motion, entered an order of disqualification prior to appearance or hearing.

Judge X, however, continued to preside over the original misdemeanor case. The State filed a petition to revoke Defendant A’s misdemeanor probation based on the same alleged second act of domestic violence.

QUESTION

Should Judge X exercise disqualification?

OPINION

A judge shall disqualify himself or herself in any proceeding where the judge's impartiality "might reasonably be questioned" including instances where the judge has personal knowledge of disputed evidentiary facts. Illinois Supreme Court Rule 63 (1) (a).

Notwithstanding the judge's personal knowledge of disputed facts, it is only in the "rare case where a judge is unable to set aside [that] information" that disqualification would be required. IJEC Opinion 03-02. (A case involving disqualification motion under Supreme Court Rule 63 C (1) (b)). A judge must consider only the evidence presented. Committee Commentary to Illinois Supreme Court Rule 63.

To require disqualification, bias, prejudice, or partiality normally must be rooted in an extrajudicial source. Liteky v. United States, 510 U.S. 540, 552 (1994); see also Shaman, Lubet, Alfini, Judicial Conduct and Ethics, § 4.05 at pp 115-117 (3rd ed. 1997). Being witness to an event sufficient to inculpate the defendant on one offense does not necessarily render the judge impartial as to other proceedings. People v. Page, 183 Misc. 2d 370, 372; 702 N.Y.S. 2d 552, 554 (Cty. Ct. N.Y., Nassau 2000) (Judge witnessing a disturbance in the courtroom that became the subject of other charges been filed against the defendant does not disqualify the judge from hearing the original case). Hence, the Committee does not conclude that disqualification was automatically required in the first instance.

Disqualification is required in any subsequent proceeding where the grounds advanced for disqualification are an identical match to those that form the basis for the earlier disqualification. Houck v. Florida, 669 So. 2d 1131, 1132 (Fla. App. Ct. 3rd Dist. 1996). In other words, if the grounds for disqualification apply equally in both cases, disqualification in the first case requires disqualification in the second.

Here the State’s petition to revoke was based on Defendant's alleged second act of domestic violence. Judge X made a determination that this was one of those "rare cases" where he could not set aside the personal knowledge that he possessed because he had witnessed the Defendant's admission to this second act of domestic violence. Because the judge made a public declaration that he could not make a determination solely on the facts and evidence presented during the prosecution, the judge must exercise disqualification in the second case. The issue to be adjudicated in the second case is identical to that in the felony prosecution. As such, the grounds for disqualification apply equally in both instances. The disqualification in the first case requires disqualification in the second.