Question: A district court judge has asked whether a judge is required to enter disqualification in a proceeding involving a motion and affidavit for disqualification of a judge from the same district.

Answer: Disqualification is not required.

Discussion: Rule 63(b) of the Utah Rules of Civil Procedure and Rule 29 of the Utah Rules of Criminal Procedure allow a litigant to file a motion and affidavit for disqualification of the judge presiding over the litigant's case. The judge against whom an affidavit is filed may certify the motion and affidavit for review by another judge. Both rules specifically state that the "presiding judge of the court [or] any judge of the district . . . may serve as the reviewing judge." The question that has arisen is whether a judge of the same district may ethically serve as the reviewing judge in light of Informal Opinion 96-2, which requires a judge to enter disqualification in "proceedings involving an employee of the judge's district."

The Code of Judicial Conduct and the rules of procedure are both enacted by the Utah Supreme Court. The procedures in Rule 63 and Rule 29 were amended in 1999. Prior to that time, the rules simply stated that an affidavit could be submitted to any other judge for review. These facts are significant because the Utah Supreme Court is the final arbiter of judicial ethics and judicial procedure, and the Court has specifically determined that a judge may review a disqualification affidavit filed against a judge of the same district. Based on the Utah Supreme Court's authority, the Committee believes that it is ethical for a judge to follow the procedures that have been established.

Even without the Utah Supreme Court's specific determination embodied in the rules the, Committee believes that it generally is not unethical for a judge to review disqualification motions filed against another judge of the district. This opinion is based on the nature of disqualification proceedings, as presently constituted.

Disqualification of a judge is required under Canon 3E, which states:

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

(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, a strong personal bias involving an issue in a case, or personal knowledge of disputed evidentiary facts concerning the proceeding;

In Informal Opinion 96-2 (and its companion opinion, 98-14), the Committee construed this Canon to require disqualification in "proceedings involving an employee of the judge's district." This opinion request initially raises the question of whether a judge is an "employee" of the district. The Committee is of the opinion that a judge is an employee of the district, but the nature of the disqualification proceeding reduces or eliminates the possibility of improper bias.

As noted in Opinion 96-2, "the general test applied to determine whether a judge's impartiality might reasonably be questioned is whether a person of ordinary prudence in the judge's position knowing all of the facts known to the judge would find that there is a reasonable basis for questioning the judge's impartiality." Disqualification is required when a district employee is a party to a proceeding because of the perception that a judge may be inclined to decide issues in the employee's favor. For instance, a judge cannot preside in a divorce proceeding involving an employee of the judge's district because of the need to avoid any perception that the employee may be receiving favorable treatment. Similarly, a judge could not preside in a divorce proceeding involving a judge from the same district.

Opinions 96-2 and 98-14 involved situations in which an employee was a party to the case. The reasoning of those opinions could also be extended to situations in which an employee is otherwise personally affected by the outcome of the proceeding. Those circumstances are absent from a disqualification proceeding, because a judge is not a party to the proceeding and is not personally affected by the outcome.

The nature of Rule 63(b) and Rule 29 proceedings significantly reduces any reasonable perceptions of partiality. Unlike most other court proceedings, a judge is not a party to these proceedings. Under the rules, a litigant may file an affidavit alleging bias or prejudice on the part of the judge. The judge against whom the affidavit is filed has two options: disqualification, or certification of the affidavit to a reviewing judge for a determination of whether disqualification is required. A judge against whom the affidavit is filed cannot comment on the merits of the petition or otherwise "enter the fray." See e.g. Barnard v. Murphy, 882 P2.d 679 (Utah App. 1994), and Young v. Patterson, 922 P.2d 1280 (Utah 1986).

The standard for the judge reviewing the affidavit is "legal sufficiency." An affidavit is legally sufficient if the facts, as alleged, require disqualification. See In re Affidavit of Bias, 947 P.2d 1152 (Utah 1997). A hearing is not held, arguments are not made, and significant fact finding is not conducted. For example, if an affidavit alleges that disqualification is required because the judge's second cousin has a financial stake in the litigation, the allegations would not be legally sufficient to require disqualification, because a second cousin is not within the degree of relationship automatically requiring disqualification. If the affidavit alleged a financial stake by the judge's child, the affidavit would be legally sufficient. In either situation, the allegations are generally assumed to be true, although the reviewing judge can request additional information. This process removes the potential for bias to become a factor because issues of fact are presumptively decided in favor of the affiant.

Through the above-described process, the Utah Supreme Court has eliminated the potential for reasonable perceptions of partiality. The judge against whom an affidavit is filed is prohibited from showing any attempts to influence the outcome of the proceeding, and the reviewing judge determines whether the affidavit is legally sufficient, which is a fairly sterile review. A judge may therefore decide disqualification issues involving a judge of the same district.