FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 2001-05
Date of Issue: April 10, 2001

ISSUES

MAY A COUNTY JUDGE, MARRIED TO THE ELECTED PUBLIC DEFENDER IN THE INQUIRING JUDGE'S CIRCUIT, PRESIDE OVER CASES IN THE CRIMINAL DIVISION TO WHICH THE PUBLIC DEFENDER IS ASSIGNED?

ANSWER: No.

IF THE INQUIRING JUDGE REMAINS IN THE CIVIL DIVISION, MUST THE INQUIRING JUDGE DISCLOSE HIS RELATIONSHIP WITH THE PUBLIC DEFENDER WHEN CONDUCTING WEEKEND OR HOLIDAY APPEARANCE HEARINGS BEFORE THE PUBLIC DEFENDER HAS BEEN APPOINTED?

ANSWER: No.
FACTS

The inquiring judge is one of three county judges in a smaller county that comprises part of a multi-county circuit. The judge's spouse is the elected public defender of the circuit. Two to three assistant public defenders appear before the inquiring judge. The judge's spouse has attempted to remove herself from direct and indirect supervision of these assistant public defenders. The inquiring judge currently presides only over civil cases, and the other two county judges preside over criminal cases. Because of increasing caseloads, it has become more difficult for the public defender to remove herself from supervision of the assistant public defenders who appear in the inquiring judge's county. In fact, the public defender/wife has expressed her concern that she may not be able to restructure the supervision of these assistants, or that such restructuring may not be affective. Also, the inquiring judge frankly notes that even though the public defender may not be directly involved in supervision of the given case, "it is clear that she is the boss."

DISCUSSION

In the past, the Committee has determined that a judge need not disqualify because a spouse is employed by the State Attorney's Office, the Public Defender's Office, or Legal Aid. See, e.g., Fla. JEAC Op. 97-25 ("Given Florida's historical view of employment by the State Attorney or Public Defender, we find that employment of a spouse by Legal Aid should not automatically lead to disqualification."); Fla. JEAC Op. 91-17 (finding that, although disqualification is not automatic just because the spouse works as an assistant public defender, if the circumstances of the case somehow place the judge's impartiality in question, the judge should disqualify). These opinions and others, such as Fla. JEAC Opinions 77-12, 77-4, and 76-12, however, do not deal with the facts now at hand.

Canon 3E of the Florida Code of Judicial Conduct generally addresses the topic of judicial disqualification. Specifically, Canon 3E(1) provides: "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned . . . ." Circumstances in which the Code presumes that a judge's partiality might reasonably be questioned include a situation where the judge, or the judge's spouse, is acting as a lawyer in the proceeding. Fla. Code Jud. Conduct, Canon 3E(1)(d)(ii). In the present case, as the inquiring judge apparently recognizes, the elected public defender is not only in charge of all assistant public defenders, she is the attorney of record in cases where the public defender has been assigned. See §27.51(1), Fla. Stat. (2000). Assistant public defenders are appointed at the sole discretion of the elected public defender and serve at the pleasure of the public defender. See §27.53(1), Fla. Stat. (2000). Accordingly, the inquiring judge is disqualified by the terms of Canon 3E from hearing cases that involve the public defender.

The Committee notes that the remittal of disqualification procedure of Canon 3F is apparently available to this inquiring judge. Nevertheless, because the judge would know in advance that he would be disqualified from a large number of criminal cases, the procedure of remitting disqualification would be quite burdensome, and perhaps completely ineffective. Moreover, the Committee is concerned that the appearance of impropriety created where the presiding judge's spouse is the elected public defender, would militate in favor of blanket disqualification.

The judge next inquires whether he must disclose the relationship when he serves on weekend or holiday first appearance duty before the public defender has been appointed. Disclosure is not required in such cases, because the provisions of Canon 3E have not yet been triggered. Nevertheless, where possible, the judge should ensure that defendants at first appearance have not already had the public defender appointed in another proceeding. In such a case, disclosure would be required.

REFERENCES

§§27.51(1), 27.53(1), Fla. Stat. (2000).

Code of Judicial Conduct: Canons 3E, 3E(1), 3E(1)(d)(ii), 3F.

Florida JEAC Opinions: 97-25, 91-17, 77-12, 77-4, and 76-12

_____________

The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and to the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 698 So.2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.

For further information, contact Judge Charles J. Kahn, Jr., Chairman, Judicial Ethics Advisory Committee, 301 Martin Luther King, Jr., Blvd., Tallahassee, FL 32399-1850

Participating Members:
Judge Charles J. Kahn, Jr.
Judge Lisa D. Kahn
Judge Phyllis D. Kotey
Judge David Levy
Judge Scott J. Silverman
Judge C. McFerrin Smith, III
Judge Jeffrey D. Swartz
Judge Emerson Thompson
Judge Richard R. Townsend
Marjorie Gadarian Graham

Copies furnished to:
Justice Peggy Quince
All Committee Members
All Members of the J.Q.C.
Office of the State Courts Administrator (Name of inquiring judge deleted from this copy)