FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 2001-11
Date of Issue: May 21, 2001

ISSUES

MUST THE ADMINISTRATIVE JUDGE IN THE COUNTY CRIMINAL DIVISION, WHO JOINTLY OWNS WITH THE ELECTED STATE ATTORNEY AND FOUR OTHERS A LAKESIDE TRAILER USED FOR FISHING TRIPS, DISQUALIFY HIMSELF FROM ALL CASES INVOLVING THE STATE ATTORNEY'S OFFICE?

ANSWER: Yes.

FACTS

The inquiring judge owns a one-sixth (1/6) interest in a lakeside trailer that is used for fishing trips. The other owners include the newly elected state attorney. The trailer is owned free and clear and is located on property leased for 99 years. The lease rent has been paid in full.

One of the six owners keeps a calendar denoting which of the owners has reserved the trailer for certain dates.

The inquiring judge has not used the trailer in five years. He and the newly elected state attorney last fished together six years ago.

DISCUSSION

The inquiring judge correctly recognizes that he must disqualify himself from any case in which the state attorney himself is involved. He asks whether he must disqualify himself from cases in which assistant state attorneys are involved. He must do so.

Canon 3E governs disqualification of judges and specifies:

A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned . . .

As recognized in Opinion 99-2, Canon 3E(1) requires a judge to disqualify himself or herself in a case regardless of whether any of the specific rules in 3E(1) apply. Section 38.05, Florida Statutes (2000), authorizes a judge on his or her own motion to recuse himself or herself.

The issue here is similar to that presented in Opinion 01-05. There, the opinion recognized that the elected public official, the public defender, is not only in charge of all assistant public defenders, but is also the attorney of record in cases where the public defender is assigned. The same rationale applies in this case. The state attorney is the attorney of record in the circuit and county courts within his judicial circuit. See § 27.02, Fla. Stat. (2000). Assistant state attorneys are appointed by the elected state attorney and serve at the pleasure of the state attorney. See § 27.181, Fla. Stat. (2000).

Therefore, in this case, the inquiring judge is disqualified by the terms of Canon 3E from hearing any cases that involve the state attorney and his assistants.

Canon 5D requires a judge to regulate his extrajudicial financial activities so as to minimize the risk of conflict with judicial duties. That canon specifies in §5D(1)(2) and (4):

(1) A judge shall not engage in financial and business dealings that (a) may reasonably be perceived to exploit the judge's judicial position, or (b) involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves.

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(2) A judge may, subject to the requirements of this Code, hold and manage investments of the judge and members of the judge's family, including real estate, and engage in other remunerative activity.

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(4) A judge shall manage the judge's investments and other financial interests to minimize the number of cases in which the judge is disqualified. As soon as the judge can do so without serious financial detriment, the judge shall divest himself or herself of investments and other financial interests that might require frequent disqualification.

As recognized in Opinion 97-33, Canon 5(D)(1)(b) is necessary to avoid creating an appearance of exploitation of the judge's office and to minimize the potential for disqualification.

Canon 5D(4) requires a judge to manage investments in a manner so as to minimize the number of cases in which the judge is disqualified. In this case, as in Opinion 97-33, the inquiring judge is cautioned that if he is unable to minimize the number of cases in which he is disqualified as a result of joint ownership of this property with the state attorney, the judge must divest himself of the property as soon as can be done without serious financial detriment.

REFERENCES

§§27.02, 27.181, 38.05, Fla. Stat. (2000).

Code of Judicial Conduct: Canons 3E, 3E(1), 5D, 5D(1), 5D(1)(b), 5D(2), 5D(4).

Florida Judicial Ethics Advisory Committee Opinions: 01-05, 99-2, 97-33.

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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 Gisela Cardonne
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, Esquire

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)