Court of Appeals Considers Judge’s “Intimate Relationship.”

In a special opinion issued by the Minnesota Court of Appeals, a judge is not required to remove him or herself from presiding over a case that is being prosecuted by the office where the judge’s spouse is employed.

The trial of the former captain of the Minneapolis Park Police on charges of 1st Degree Criminal Sexual Conduct was delayed due to defense counsel’s concerns that the assigned judge should remove himself from hearing the case.

William A. Jacobs’ attorneys asked that Hennepin County District Court Judge Daniel Moreno recuse himself from the case on the grounds that he did not disclose that he is married to an Assistant Hennepin County Attorney. The Hennepin County Attorney’s Office is prosecuting Jacobs, and although the case is not assigned to the judge’s wife, defense counsel was concerned about the judge’s impartiality.

Defense counsel motioned the Minnesota Court of Appeals to decide whether the judge can preside over the case or whether he should remove himself. The trial was put on hold pending the recent Court of Appeals decision. The Court of Appeals found that a county attorney has no economic interests or interests with regard to status in a case in which he or she is not involved. As such, the judge isn’t disqualified from hearing the case.

Rule 26.03, subd. 13 (4) of the Minnesota Rules of Criminal Procedure (MRCP) allows for either party to remove a judge without stating a reason as long as the party requesting removal of the judge does so within seven (7) days of receiving notice of the assigned judge, and as long as the judge has not presided over a previous hearing. Each party is allowed one removal only. Any request by a party to remove a newly assigned judge after a previous removal of a judge is only allowed for by an affirmative showing of cause. MRCP Rule 26.03, subd. 13 (3) sets forth that a judge cannot preside over a trial or hearing if he or she is disqualified from doing so as set forth by the Code of Judicial Conduct. The pertinent rule can be found in Canon 2, Rule 2.11 of the Code, and states:

(A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:

[(1)]

(2) The judge knows that the judge, the judge’s spouse, a person with whom the judge has an intimate relationship, a member of the judge’s household, or a person within the third degree of relationship to any of them, or the spouse or person in an intimate relationship with such person is:

[(a)]

(b) acting as a lawyer in the proceeding;[.]

In this particular case, defense counsel already used their right to removal to remove a previously assigned judge, and the only way they could remove a subsequent judge was for cause. Defense counsel motioned Judge Moreno to remove himself for cause, and the judge denied the motion. This raised an interesting question to the Court of Appeals on the interpretation of Rule 2.11 from Canon 2 of the Code of Judicial Conduct. A reading of the applicable Rule states that a judge should disqualify himself if his spouse has an intimate relationship with one of the attorneys in the proceeding. Thus the issue posed to the Court of Appeals was what constitutes an intimate relationship? In this matter, the judge’s spouse is a co-worker of the attorney prosecuting the case. The Court of Appeals determined a relationship between a judge’s spouse and her co-worker at the county attorney’s office is not an intimate relationship.

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