Opinion 77-12

April 29, 1977

Re: Canon 3C

Dear Judge:

This is in response to your recent inquiry to the Committee. You relate that your brother is an assistant state attorney in your county and that he is assigned as the Administrative Division Chief of the County Court. His regular duties include assigning assistant state attorneys to appear before you in the Criminal Division of your court and signing the informations filed in the Criminal Division of your court. You acknowledged that although your brother rarely appears to actually prosecute a case, you will not sit on any case in which he is appearing. You have forwarded to us a "waiver form" and inquire if the use of this form, to be signed by the defendant in criminal cases in which your brother has been involved, will resolve any possible conflicts with Canon 3C(1).

Five members of the Committee feel that our Opinion No. 77-4 sufficiently resolves the question you have presented. In that majority (5-4) opinion, a Circuit Judge in the Juvenile Division was informed that his brother's position as Chief Assistant Public Defender in the same Juvenile Division did not in and of itself disqualify the judge from sitting on cases handled by assistant public defenders who were administratively assigned to cases by the judge's brother.

The six members constituting the majority in this opinion feel that the use of the waiver form which you suggest would resolve problems which might arise. One of these members notes that the failure of the defendant and his attorney to file this waiver form would place you in a position of disqualifying yourself pursuant to Canon 3C(1). Another notes that your prompt recussal would, of course, be expected in the event that an information signed by your brother is challenged as to its validity.

Four members of this Committee distinguished Opinion No. 77-4 from the instant case by noting that your brother signs all criminal informations. This being true, three of those members do not feel it advisable for you to sit on cases wherein your brother signed the information.

We appreciate your inquiry and trust the foregoing will be of assistance to you.

Sincerely yours,

Tyrie A. Boyer, Chairman
Committee on Standards of Conduct Governing Judges

TAB/hmr

Participating members: Judges Boyer, Carlisle, Haverfield, Hewitt, Marger, Murphee, O'Connell, Sample and Stephenson.