September 4, 1998
The Honorable Richard E. Gardner, Jr.
Fifth Judicial District
P.O. Box 2691
Russellville, Arkansas 72811
RE: Advisory Opinion 98-04
Dear Judge Gardner:
In your request for an advisory opinion dated August 11, 1998 you
stated that you have consistently recused in all cases wherein your first cousin, Stephen
C. Gardner, participates unless all of the parties involved sign a waiver. You have asked
if your recusal is necessary. Our response is that you must continue to recuse.
You pointed out that the definition section of the Code of Judicial
Conduct provided as follows:
Third degree of relationship. The following persons are relatives
within the third degree of relationship: great-grandparent, grandparent, parent, uncle,
aunt, brother, sister, child, grandchild, great-grandchild, nephew or niece.
While this section does not specifically state that first cousins
are not within the third degree of relationship, the failure of the definition to
include first cousins does have the potential to create some uncertainty; however, the law
in Arkansas on this issue is very clear. Arkansas Code Annotated 16-13-312 provides as
"No chancellor shall sit on the determination of any cause or
proceeding in which he is interested, or related to either party within the fourth
degree of consanguinity or affinity, or shall have been of counsel without the consent of
the parties." (Emphasis supplied)
Arkansas Code Annotated 28-9-212 sets forth the law in the state of
Arkansas for computing degrees of consanguinity and under this statute a first cousin
would be within the third degree of relationship. See also, Article 7, ' 20 of the
Arkansas Constitution and Morton v. The Benton Publishing Company, Inc., 291 ARK. 620, 727
S.W. 2d 824 (Ark. 1987). We also consider that under these circumstances the judge's
impartiality might reasonably be questioned under Canon 3E (1).
Very Truly Your,
Edwin B. Alderson, Jr.
For the Committee