Request By:
Honorable Cordell H. Martin
Attorney at Law
P.O. Box 382
Hindman, Kentucky 41822
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You are a brother-in-law to Circuit Judge John Chris Cornett of the 36th Judicial District; and you are not by blood relationship related to him or his wife.
Your question is: "Will Judge John Chris Cornett be required to disqualify himself in any judicial proceeding in which I am acting as a lawyer?"
As you say, House Bill 23 [Ch. 22 of the 1976 Extraordinary Session] contains provisions relating to disqualification of judges or master commissioners in certain circumstances. Specifically Section 4(2)(d) of H.B. 23, now KRS 26A.015(2)(d), states a ground for judge disqualification where he [the judge] or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person, is a party to the proceeding, or is an officer, director, or trustee of a party, or is acting as a lawyer in the case, or is known by the judge or master commissioner to have an interest that could be substantially affected by the outcome of the case, or is to the knowledge of the judge or master commissioner likely to be a material witness. (Emphasis added).
In connection with the term "third degree of relationship", we concluded in OAG 77-232, and we conclude here, it refers to consanguinity, i.e., blood relationship only. See
Sizemore v. Commonwealth, 210 Ky. 637, 276 S.W. 524 (1925) 525. Consanguinity is distinguished from "affinity" , which latter term is the connection existing, as a result of a marriage, between each of the married persons and the kindred of the other. Note that KRS 26A.015(2)(d) uses the expression "where he [judge or master commissioner] or his spouse, or a person within the third degree of relationship to either of them . . ." (Emphasis added). The statute nowhere suggests affinity relationship.
In OAG 77-232 we also concluded that the legislature intended to adopt the civil law method of computing relationships falling within the three degrees. That system is as follows: 1st Degree2nd Degree3rd DegreeParentSisterAuntChildGrandparentNieceGrandchildGreat grandparentBrotherGreat grandchildUncleNephew
Thus the range of kinship which should disqualify a judge includes the 1st degree, the 2nd degree, and a 3rd degree.
Since you are not related by blood to the judge or his wife, you do not fit any of the kinships shown in the above civil law table of consanguinity which would disqualify the judge. Thus the disqualification statute does not apply to you nor the judge, as relates to you as an attorney practicing in his court. The matter of a waiver of disqualification would be moot.