Beer v. Griffith

Locher, J.,

dissenting. I respectfully dissent from the opinion of the majority of the court.

R. C. 2701.03 provides a mechanism for determining the disqualification of a judge; however, in the instant cause, the . reáson for seeking disqualification of "the trial judge did.not appear until argument was had,in,the Court of Appeals. At this juncture, under questioning, by members of, that court, counsel for appellees first learned that the trial judge was. the uncle of counsel for appellants.

*443Clearly, ;the Code of Judicial Conduct promulgated and adopted by this court is germane to a correct resolution of this appeal.: To rely on R. C. 2701.03, therefore, begs the question.

Canon.: 3 of the Code of Judicial Conduct reads, in pertinent ,part,_ as follows:

“C. Disqualification
“(1) A.jüdgé should disqualify himself in a proceeding-in which his impartiality might reasonably be questioned, including but not limited to instances where:
“* * *
“(d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person': .
“* * *
“(ii) is acting as a lawyer in the proceeding * *

The. procedure for circumventing Canon 3C(l)(d)(ii) is through a remittal signed by all parties and counsel after the nepotistic relationship has been ascertained.4

The burden of disclosure of relationship is upon the judge. Counsel should not be required to trace the family trees of the parties and their attorneys vis-a-vis the genealogical chart of the jurist.

In my judgment the standards of the Code of Judicial Conduct mandate the court to advise counsel where a relationship, such as here, exists. The Preface to the code reads as follows:

“This Code, consisting of statements of norms denom-*444mated canons, the accompanying text setting forth specific rales, and the commentary, states the standards that judges should observe. The canons and text establish mandatory standards unless otherwise indicated.”

It is both indelicate and unreasonable for attorneys to raise questions of possible conflict when the court is fully aware of the facts.5

The entire proceedings were suffused by the proscribed relationship, and, hence, absent a written remittal, the entire procedings should be deemed void ab initio.

Canon 3D of.the Code of Judicial Conduct reads as follows:

“D. Kemittal of Disqualification
“A judge disqualified by the terms of Canon 3C(l)(c) or Canon 3C(l)(d) may,'instead of withdrawing from the proceeding, disclose on the record the basis of his disqualification. If, based on such disclosure, the parties and lawyers, independently of the judge’s participation, all agree in writing that the judge’s relationship is immaterial or that his financial , interest is insubstantial, the judge is no longer disqualified, and may participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceeding.”

Counsel for appellees was from a county other than the one in which the trial took place and was not aware that the trial judge, a retired'judge sitting by assignment, and counsel for appellants, were ‘ ‘uncle-nephew.”