Question: A judge has asked the Ethics Advisory Committee whether disqualification is required in proceedings involving IHC Health Services, Inc., which employs the judge's spouse part-time.

Answer: Disqualification is required, although the disqualification can be remitted.

Discussion: The judge's spouse is a licensed registered nurse. Since 1989, the judge's spouse has been employed at Intermountain Health Care (IHC) owned hospitals. The spouse works approximately four to six hours per week at a fixed hourly rate. The spouse also occasionally receives bonuses or gifts at special occasions. The spouse does not serve as an officer, director or other active participant in the affairs of IHC and does not own an interest in the corporation.

The judge was recently assigned a case involving IHC Health Services, Inc. The judge anticipates that IHC will be a party to other cases and therefore asks whether disqualification is required in proceedings involving IHC.

Canon 3E discusses disqualification. The canon requires disqualification "in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: . . . any . . . member of the judge's family residing in the judge's household, has an economic interest in the subject matter in controversy or in a party to the proceeding, or has any other more than de minimis interest that could be substantially affected by the proceeding" or "the judge's spouse . . . is known by the judge to have a more than de minimis interest that could be substantially affected by the outcome of the proceeding." Disqualification is required if the judge's spouse has a more than de minimis interest that could be substantially affected by a proceeding, owns an economic interest in IHC or the subject of the litigation, or if the judge's impartiality might otherwise reasonably be questioned.

The terminology to the Utah Code of Judicial Conduct defines economic interest as "ownership of a more than de minimis legal or equitable interest, or a relationship as officer, director, advisor, or other active participant in the affairs of the party." Under this latter definition, the judge's spouse does not have an economic interest in IHC. The spouse does not own any interests in IHC and is not an active participant in its affairs. The Code defines de minimis as "an insignificant interest that could not raise reasonable question as to the judge's impartiality." The question is then whether the judge's spouse has a more than de minimis interest that could be substantially affected by the proceedings, or the judge's impartiality might otherwise reasonably be questioned.

The Committee has previously discussed other situations in which a judge's spouse or other relative is employed by a party. In Informal Opinion 97-2, the Committee determined that a judge should enter disqualification in a proceeding involving a law firm which employs the judge's son as a law clerk. In this opinion, the Committee sought to establish a bright line test which offered judges "predictability and ease of application." The Committee noted that a law firm's ability to meet its payroll may depend on its success and therefore it was possible that a law clerk's financial interest could be substantially affected by the outcome of any given proceeding. The Committee also noted that a law clerk might have worked on a case before the judge. The Committee adopted a bright line to eliminate a need to inquire into facts about compensation and the relative's involvement in the case.

Establishing a bright-line in this situation would similarly provide easiest application. There may be cases involving IHC in which the judge's disqualification would not be automatically required. Even assuming that the judge's spouse has a more than de minimis interest, there would be cases in which that interest would not be substantially affected by the outcome of a proceeding. On the other hand, there would also be cases in which IHC's ability to maintain its employment and salary levels might be affected by the outcome of the case. Disqualification would be required in those cases. The problem for the Committee is providing guidance on the types of cases and the threshold involved in those cases that would require disqualification. Without more specific facts about a specific case or class of cases, the Committee is unable to provide guidance on appropriate thresholds and therefore a bright-line provides the most workable solution. The judge should therefore enter disqualification in a proceeding involving IHC.

As a final note, the disqualification at issue is a type that may be remitted under Canon 3F. As in Informal Opinion 97-2, the Committee recognizes that this bright-line may be "stricter . . . than . . . is otherwise necessary." The effects of this strict interpretation may be mitigated, however, by a remittal of the disqualification in appropriate cases. In essence, the Committee has created a presumption of disqualification in cases involving IHC. If there are cases in which the judge reasonably determines that spouse's interest could not be substantially affected by the outcome of the proceeding and that the judge's impartiality will not otherwise reasonably be questioned, the judge could request remittal of disqualification following the procedures of Canon 3F.