Tuesday, July 17, 2012

Judge Not Thy Spouse's Office

From the South Carolina Advisory Committee on Standards of Judicial Conduct:

OPINION NO. 10 - 2012

RE:   Propriety of a full-time magistrate trying criminal cases where the
magistrate’s spouse is the head victim’s advocate for the Solicitor’s office.

FACTS

A full-time magistrate’s spouse is the head victim’s advocate for the
Solicitor’s office in the same county where the magistrate serves.  The
magistrate currently only handles civil cases, but may be given additional
responsibilities.   The magistrate inquires into the propriety of handling
criminal cases under these circumstances.

CONCLUSION

A full-time judge may not try criminal cases in which the Solicitor appears
where the judge’s spouse is the head victim’s advocate for the Solicitor’s
office in the same county.

OPINION

This Committee has previously addressed similar situations.  Most recently,
in 4-2011, this Committee considered whether a full time magistrate could handle
criminal cases where the magistrate’s spouse was the lead investigator for the
solicitor’s office.  The Committee determined that the judge could not preside
over such cases because the judge’s spouse could appear before the judge as a
witness for the Solicitor, which would violate  Canon E.(1)(d)(iv) (Where a
judge’s spouse or other person within the third degree of a relationship is
likely to be a material witness, a judge should disqualify himself or herself). 
In addition, Canons 1 and 2 of the Code of Judicial Conduct would be violated
because that situation would create the appearance of impropriety and would
cause the public to question the impartiality of the judiciary.

Here, the judge’s spouse, as head victim’s advocate, is likely to appear in
criminal proceedings involving the Solicitor’s office.  Although the victim’s
advocate may not appear as witness, the advocate would appear on behalf of the
victim.  For the magistrate to preside over a case in which the Solicitor is
involved would create the appearance of impropriety and would cause the public
to question the impartiality of the judiciary, in violation of Canons 1 and 2. 
Thus, the magistrate should not preside in criminal cases in which the
Solicitor’s office is involved where the magistrate’s spouse is the head
victim’s advocate in the same county.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2012/07/judge-not-thy-spouses-office.html

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