Judges must recuse from canvassing board in election tied to spouse’s employment

Judges must recuse from canvassing board in election tied to spouse’s employment

Judges have a duty to step down from serving on a county canvassing board in regard to a specific election where the judge’s spouse works for an incumbent office holder and the spouse’s continued employment post-election is unlikely if the challenger wins, according to the Judicial Ethics Advisory Committee.

That advice applies even if the judge is the only county judge in that county, but the judge does not need to recuse from any other races not involving the judge’s spouse’s employer.

The JEAC acted April 11 in Opinion Number:  2024-05.

The inquiring judge serves on the county election canvassing board and the judge’s spouse serves as general counsel to an elected county official who is facing opposition. The judge initially inquired as to whether recusal was necessary simply because the spouse was employed by the incumbent elected official. However, on further inquiry, the judge confirmed that the spouse serves at the pleasure of whoever holds that elected office and the spouse’s employment would most likely be terminated if the incumbent were to be defeated.

The JEAC concluded that the judge’s service on the canvassing board as a county judge is subject to the Code of Judicial Conduct and Canon 3E(1) provides that a judge “shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned” and when a judge’s spouse “has an economic interest in the subject matter in controversy.”

“The judge’s duties as a member of the canvassing board include many tasks that would not be perceived as affecting the outcome of any contested race,” the ethics panel said. “However, the canvassing board, according to the inquiring judge and the governing statute, may determine whether an absentee vote was properly executed or timely received and may also be called upon to determine the voter’s intent if the voter’s ballot was not clearly marked. The judge acknowledged that some races can be decided by a very close margin, meaning that any decision by the canvassing board regarding even a single ballot could conceivably change the outcome of any given race.”

The Judicial Ethics Advisory Committee is charged with rendering advisory opinions to judges and judicial candidates on the application of the Code of Judicial Conduct to their circumstances. While judges and candidates may cite the opinion as evidence of good faith, the opinions are not binding on the Judicial Qualifications Commission.