SUBJECT: Under Canon 3E(1)(d), does the definition
of third degree of relationship exclude first
cousins, and if so, should a judge disqualify
himself if such a relationship is a lawyer or
a party in a proceeding

Under the provisions of Canon 3E(1)(d) of the Code of Judicial Conduct, a judge is disqualified if a person within the third degree of relationship (to the judge or the judge's spouse) is acting as a lawyer in a proceeding. The inquiring judge would like to know whether the third degree of relationship excludes first cousins, and if so, whether first cousins would still trigger the prohibition of Canon 3.

The definition section of the Code of Judicial Conduct enumerates those persons who are considered relatives within the third degree of relationship. The list of relatives does not include a first cousin. Canon 3C(1)(d) of the original Code also required disqualification where a lawyer in a proceeding was related within the third degree to the judge or judge's spouse. The commentary to the Code provided that the third degree of relationship test "would not disqualify (the judge) if a cousin were a party or a lawyer in the proceeding." Accordingly, for the purposes of the Code of Judicial Conduct, first cousins are not included as third degree relationships.

Nevertheless, other cases, not relating directly to the Code, have suggested a contrary result. In Mobil Chemical Co. v. Hawkins, 440 So. 2d 378 (Fla. 1st DCA 1983), the court observed that Florida applies the "common law rule" in degrees of kinship, "under which second cousins are held to be related within the third degree." In Walsingham v State, 56 So. 195 (Fla. 1911), the Florida Supreme Court held that a juror's second cousin who had married one of the defendants was related by affinity to the defendant within the third degree. Accordingly, case law exists to the effect that a first cousin would be within the third degree of relationship.

Under these circumstances, the clear language of the Code should be controlling. Accordingly, recusal would not be automatic under these circumstances. Nevertheless, under Canon 3E, a judge must disqualify in any proceeding in which the judge's impartiality might reasonably be questioned. Accordingly, the inquiring judge would have to consider the actual circumstances of his relationship with his cousin. If a close familial tie exists, the safe course of conduct would be to disqualify.

The committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and to the judiciary at large. Conduct that is consistent with an advisory opinion issued by the committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions issued by the committee. Petition of the Committee on Standards of Conduct for Judges, 327 So.2d 5 (Fla.1976).

Dated the 23rd day of June, 1997.

Charles J. Kahn, Jr.
Chairman, Committee on Standards of Conduct Governing Judges

Participation Members: Judges Cardonne,Dell, Green, C. Kahn, L. Kahn, Patterson, Rushing, Silverman, Smith, Tolton and Attorney Novicki

cc: All Committee Members
Justice Charles T. Wells
Office of the State Courts Administrator
(name of judge deleted from this copy)