That Judge’s Spouse Works in the Prosecutor’s Office Does Not Require Removal.

State v. Jacobs, Minn.S.Ct., 9/14/2011.  The state charged Mr. Jacobs with two counts of criminal sexual conduct; he sought to remove the trial judge because his spouse worked in the county attorney’s office that was prosecuting the case.  Cause for removal exists if the judge would be disqualified under the Code of Judicial Conduct.  In pertinent part, the code says this:

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) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.
(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 a person is:
(a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party;
(b) acting as a lawyer in the proceeding;
(c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or
(d) likely to be a material witness in the proceeding.
Minn. Code cf Judicial Conduct, Rule 2.11(A).

Mr. Jacobs conceded that that judge’s spouse was not acting as a lawyer, that she had no financial interest in the outcome, and that she had no reputational interest at stake in the outcome.  That leaves as the remaining basis on which to remove the judge the reason that his “impartiality might reasonably be questioned.”  The inquiry under Minnesota law is whether “an objective examination of the facts and circumstances would cause a reasonable examiner to question the judge’s impartiality.” State v. Burrell, 743 N.W.2d 596 (Minn. 2008) [emphasis in original].  Neither the fact of the marriage relationship nor the judge’s failure to disclose it to the parties meets this standard.