Gardner v. Madsen
33 1 Utah Adv. Rep. 49 (Utah App. 1997)

Failure to Recuse
Defendants argue that the trial judge erred in failing to disclose that his nephew was a principal in NUF 1, and in failing to recuse himself and grant a new trial with a different judge. At the end of trial, there was testimony that Clayton Wilkinson was an incorporator of NUF 1, that he was on the board of directors of NUF 1, and that he was plaintiff's partner in Probe Realty.

After trial, defendants learned that Clayton Wilkinson was Judge Wilkinson's nephew and filed a motion for a new trial and reassignment of the case. In support of their motion, defendants filed an affidavit of Kenneth Madsen. In response, plaintiff filed an affidavit from Clayton Wilkinson in which he admitted he was an incorporator of NUF 1, and member of its board of directors, but claimed that he had never regularly participated in board meetings or management of the company. Wilkinson averred he had not been a member of the board of directors for more than three years, and claimed he had nothing to gain from the litigation. regardless of who prevailed.

At a hearing on the motion, Judge Wilkinson stated that Clayton Wilkinson was his nephew. The judge also stated that he was surprised when Clayton Wilkinson's name was mentioned near the end of the trial, and that he had not spoken with Clayton Wilkinson or anyone else about the case.

On appeal, defendants argue that Judge Wilkinson had a conflict of interest that required recusal. Canon 3 of Utah's Code of Judicial Conduct provides:

(E)(1): A judge shall enter a disqualification in a proceeding in which the judge's impartiality might reasonably be questioned. including but not limited to instances where: . .

(d) the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) is a party to the proceeding, or an officer, director, or trustee of a party;

(iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding.

Furthermore, Utah Code Ann. 78-7-1 (1996) provides:
(1) Except by consent of all parties, no justice, judge. or justice court judge may sit or act in any action or proceeding:
(b) when he is related to either party by consanguinity or affinity within the third degree, computed according to the rules of the common law.
Although Clayton Wilkinson is within the third degree of consanguinity with Judge Wilkinson, there is no evidence that Clayton Wilkinson was a party or had any interest in the outcome of this case. Defendants argue, however, that Clayton Wilkinson was a director and incorporator of NUF 1, and also of Probe Realty, and therefore has an interest in the outcome. Defendants cite Regional Sales Agency,. Inc. v. Reichert, 830 P.2d 252. 257 (Utah 1992), for the proposition that a judge may not hear a case where that judge's relative is a partner with an interest that might be sufficiently affected by the outcome of the case. While we agree with defendants' reading of Reichert, we cannot agree that, on the facts in the record, Clayton Wilkinson was a "party" or had an "interest" in the outcome of this case. Clayton Wilkinson's affidavit affirmatively stated that he had nothing to gain by the outcome of this case.

In any event, Judge Frederick dismissed the first complaint, and held that NUF 1 lacked standing to pursue any relief. No one has appealed that ruling. Even if Clayton Wilkinson was a shareholder in NUF 1, it appears he stood to gain nothing from the present action. If Clayton Wilkinson has a partnership with plaintiff in some other venture, it is too distant and indirect to be considered an "interest" in the outcome of this case. See Blake v. Gilbert, 702 P.2d 631, 640-41 (Alaska 1985) (holding Canon 3 and similar state statute that judge was not required to recuse himself where his nephew was partner with defendant in ownership of office building not part of litigation, even though if successful, plaintiff could have obtained charging order to take that interest), Graley v. Workman, 341 S.E.2d 850. 851 (W.Va. 1986) (holding pursuant to Canon 3 that recusal was not warranted by fact that judge's husband had remote business relationship with one party to divorce. The trial judge therefore did not err by failing to recuse himself.