May 7, 1999
The Honorable Steven G. Peer
Municipal Court, City of Van Buren
Van Buren, Arkansas 72956
RE: Advisory Opinion # 99-05
Dear Judge Peer:
Your letter of April 13, 1999 states that in your position as Van
Buren Municipal Judge, you are authorized to appoint the Municipal Court Clerk. A
candidate for the position is the wife of your first cousin.
Canon 3 (C) (4) of the Arkansas Code of Judicial Conduct provides:
AA judge shall not make unnecessary appointments. " judge should exercise his power
of appointment only on the basis of merit, avoiding nepotism and favoritism. No judge
shall employ a spouse or other relative unless it has been affirmatively demonstrated to
the Arkansas Judicial Discipline and Disability Commission that it is impossible for the
judge to hire any other qualified person to fill the position . . . ." The commentary
to that Canon states: ". . . Nepotism is the appointing of relatives within the third
degree of relationship by affinity or consanguinity. . . ." The terminology section
of the Code defines Athird degree of relationship" as "The following persons are
relatives within the third degree of relationship: great-grandparent, grandparent, uncle,
aunt, brother, sister, child, grandchild, great-grandchild, nephew, or niece". We
note that this definition does not include first cousins.
In addition, while the code 3 (E) (1)(d) section on disqualification
expressly covers spouses, the 3 (C) (4) provision on nepotism does not.
In contrast, Ark. Code Ann. ' 28-9-212 counts first cousins as
falling within the second degree of relationship. See Morton v. Benton Publishing
Company, Inc., 291 Ark. 620, 727 S.W. 2d 824 (1987) (disqualification was mandatory
where one of the parties involved was the husband of the judge=s first cousin despite lack
of contact or closeness). In addition, the Arkansas statues disqualify the judge if a
relative within the fourth degree of consanguinity or affinity is a party. See Ark. Code
Ann. '' 16-13-214, 16-13-312, 16-14-103, 16-15-111, and 16-19-206. Our advisory opinion
98-04 notes the difference between the Code method of determining relationship and the
statutory method. But that opinion involved judicial disqualification in chancery court.
Most importantly, the statutes do not cover nepotism. The Code of
Judicial Conduct is the basis for the restriction on nepotism, and it does not incorporate
the statutory method of determining relationship, but contains its own definition.
In light of the specific language and definition in the Code of
Judicial Conduct, we conclude that you may consider the spouse of your first cousin for
appointment without the need to seek the approval of the Judicial Discipline and
Howard W. Brill
For the Committee
Judge Steele Hays concurs.
Judge Edwin Alderson not participating.