Holloway v. Hopper

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Holloway v. Hopper
1993 OK 56
852 P.2d 711
64 OBJ 1338
Case Number: 81249
Decided: 04/27/1993
Modified: 05/26/1993
Supreme Court of Oklahoma

MARY CLAIRE HOLLOWAY, PETITIONER,
v.
THE HONORABLE CLIFFORD E. HOPPER, PRESIDING JUDGE OF THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA, RESPONDENT.

Application for extraordinary relief.

¶0 During divorce proceeding one party sought and received legal counsel from an attorney who was the wife of the trial judge, the Honorable Gordon McAllister. The other party to the divorce sought to disqualify the trial judge, and he declined. Application to disqualify the trial judge was then presented to the Presiding Judge and denied. Application for mandamus requiring disqualification of the trial judge was then filed here.

ORIGINAL JURISDICTION ASSUMED; WRIT OF MANDAMUS GRANTED.

James R. Gotwals, James R. Gotwals & Associates, Inc., Tulsa, for petitioner.

Helen Kannady, Riggs, Abney, Neal, & Turpen, Tulsa, for respondent.

SUMMERS, Justice.

[852 P.2d 712]

¶1 This is a mandamus action brought here to disqualify the trial judge in an ongoing domestic dispute in Tulsa County. It is agreed that the former wife, who is the petitioner in this case, has properly, though unsuccessfully, complied with the Rule 15 procedures for judge-disqualification. Although she asserts a number of reasons that the judge should step aside, only one merits our discussion. That one is sufficient, however, to persuade us to grant the writ.

¶2 The trial court proceeding takes place in an action for divorce. The wife in the divorce case sought to disqualify the Honorable Gordon McAllister, Special Judge for the District Court, and that judge denied the request. The Honorable Clifford Hopper, Presiding Judge and respondent herein, heard the Rule 15 representation, and similarly refused to disqualify Judge McAllister. See Rules for District Courts of Oklahoma, 12 O.S. 1991, Ch. 2, App., Rule 15.

¶3 Although a divorce was granted early in the proceeding the property settlement proved difficult, and sanctions for the husband's alleged failure to comply still pend, as does the matter of counsel fees. The problem causing our concern in the disqualification effort is this.

¶4 The wife of the trial judge is an attorney, practicing with a firm. The husband in the divorce proceeding met and consulted with her "once or perhaps twice" concerning the property settlement in the divorce proceeding. Neither she nor the firm entered an appearance in the case. The letter of 20 O.S. 1991 § 1401 prohibits a judge from sitting in a contested matter where the judge is related to any attorney of record within the third degree of consanguinity or affinity. Id. at § 1401(B). There is nothing before us that shows any disqualifying event under the standard expressed by § 1401. However, other authority confirms our belief that the spirit of that section is indeed offended by an occurrence of this nature.

¶5 The Code of Judicial Conduct states that a judge should disqualify in a proceeding where his or her impartiality might reasonably be questioned, and this includes instances where the judge's spouse "is acting as a lawyer in the proceeding". Code of Judicial Conduct, 5 O.S. 1991 Ch. 1, App. 4, Canon 3(C)(1)(d)(ii).

¶6 Federal courts have explained that the phrase "acting as a lawyer in the proceeding" focuses on the participation of the lawyer in the proceeding before the judge, and is not limited to cases where the lawyer has formally appeared. For examples see State ex rel. Weinberger v. Equifax, Inc., 557 F.2d at 463 (recusal of the judge was not necessary under federal statute because judge's son did not participate in the proceeding, although the son's firm did so participate)

¶7 In the present case the wife of the judge did not appear as an attorney of record in the proceeding, nor did any member of her firm. Thus, the prohibition of § 1401 does not apply. She states she never discussed the case with her husband, and no one contends otherwise. In disqualification proceedings, however, the courts must be sensitive to the appearances of possible impropriety as well as to actual occurrences. Canon 2, Code of Judicial Conduct 5 O.S. 1991, Ch. 1, App. 4. Here the judge's wife was consulted regarding the divorce settlement, and gave counsel or legal advice concerning that case pending before her husband as a judge. We believe this participation in the proceeding requires the judge to disqualify under Canon 3. The writ of mandamus is hereby issued to Judge Hopper requiring him to certify the disqualification of Judge McAllister in Holloway v. Holloway, No. FD 90-5603, presently pending before him upon the docket of the District Court for Tulsa County.

¶8 HODGES, C.J., LAVENDER, V.C.J., and SIMMS, HARGRAVE, ALMA WILSON, KAUGER and WATT, JJ., concur.

¶9 OPALA, J., concurs in result.

Footnotes:

1 That provision states:

(1) A judge 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 degree of relationship to either of them that is specified by 20 O.S. 1971 §§ 1401 and 1402, or the spouse of such person:

(ii) is acting as a lawyer in the proceeding; Canon 3 goes on to provide that a judge so disqualified may disclose the basis therefor on the record, and 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, . . . the judge is no longer disqualified and may participate in the proceeding." Code of Judicial Conduct, Canon 3(D).

2 Under 20 O.S. 1991 § 1401 , however, an "attorney of record" by definition includes a member of the spouse's firm, and disqualification would be required.

3 Such participation is only one factor considered in deciding whether a judge should disqualify in federal court, and a judge may be required to disqualify for other reasons. Hewlett-Packard Co. v. Bausch & Lomb Inc., 882 F.2d 1556, 1569 (Fed. Cir. 1989); SCA Services, Inc. v. Morgan, 557 F.2d 110 (7th Cir. 1977).