State of Washington

Ethics Advisory Committee

Question

Is a judicial officer required to recuse in a case if the judicial officer is advised the judicial officer’s spouse has a listing for a house in a subdivision with covenants which are the subject of the lawsuit; the spouse at one time owned a house in the subdivision and served on its board and the judicial officer and spouse rented a house in the subject subdivision for a short time several years ago?

The judicial officer heard a summary judgment motion which was taken under advisement. Approximately two months after hearing the motion, but before the judge rendered a decision, counsel wrote to the judge advising that the judge’s spouse is the listing broker on a house located in the same subdivision as the property which is the subject of the lawsuit pending before the judge. The judge responded by advising both parties that the judge was not recusing from the case because the judge’s spouse did not have an economic interest in the subject matter in controversy.

After the judge issued a letter opinion, the judge received a letter from counsel advising that the judge’s spouse owned property in the subdivision over 20 years ago (and many years before the judge was married to the spouse) and the spouse advised the judicial officer that at the time of that ownership the spouse served on the subdivision’s homeowner’s board. Several years ago, the judicial officer and the spouse rented a house in the subdivision for a short period of time.

Answer

CJC Canon 2(A) requires that judges conduct themselves in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Canon 2(B) states that judges should not allow their family relationships to influence their judicial conduct or judgment, should not lend the prestige of their office to advance the private interests of others, and should not convey or permit others to convey the impression they are in a special position to influence them.
CJC Canon 3(D)(1)(c) states that judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned, including but not limited to instances in which the judge knows that the judge’s spouse has an economic interest in the subject matter that could be substantially affected by the outcome of the proceeding. Canon 3(D)(2) provides that judges should make a reasonable effort to inform themselves about the personal and economic interests of their spouse.
CJC Canon 3(D)(1) provides that judges should disqualify themselves in a proceeding in which the judge’s spouse has an economic interest in the subject matter that could be substantially affected by the outcome of the proceeding. In this situation, the spouse does not have an interest in the house which is the subject of the lawsuit but rather has a listing, as the broker, for a house located in the same subdivision as the house which is the subject of the litigation; therefore, the judicial officer does not need to recuse. The fact that the judicial officer was advised after rendering an opinion, that in the past the spouse of the judicial officer owned a house, over 20 years ago, in the same subdivision as the property in the proceeding does not require the judicial officer be disqualified from the proceeding because the spouse’s prior ownership of the property would not call the judicial officer’s impartiality into question.

Opinion 97-09

06/26/1997