FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 2001-14
Date of Issue: July 19, 2001

ISSUES

MAY A JUDGE SERVE ON A COUNTY DOMESTIC VIOLENCE COUNCIL IF THE COUNCIL APPEARS TO HAVE BECOME AN ADVOCACY GROUP?

ANSWER: No.

IS IT A CONFLICT OF INTEREST FOR JUDGES TO BE MEMBERS OF A DOMESTIC VIOLENCE COUNCIL IF THERE ARE MEMBERS ON THE COUNCIL WHO OPERATE FOR-PROFIT BATTERERS' INTERVENTION PROGRAMS?

ANSWER: No.

MAY THE DOMESTIC VIOLENCE COUNCIL MEET IN THE COURTHOUSE?

ANSWER: The Committee declines to answer this inquiry as it is beyond the scope of the Committee.

IS IT APPROPRIATE FOR MEMBERS OF THE JUDICIARY TO ATTEND DOMESTIC VIOLENCE COUNCIL MEETINGS AND ANSWER QUESTIONS ABOUT COURT PROCEDURES?

ANSWER: Yes.

FACTS

The inquiring judge is a member of a county domestic violence council (Council), which the judiciary helped organize several years ago. Members of the Council include the Chief Judge, the Administrative Judge of the Family Division, the State Attorney, the Public Defender, and representatives from Victim Services, the Criminal Defense Bar, Legal Aid, and other organizations involved with the issue of domestic violence. Membership of the Council also includes organizations from the community at large representing victims, shelters, attorneys, health care providers, law enforcement, probation, and batterers' intervention program providers (BIPs). When it was created, the mission of the Council was declared to be to "work toward the prevention of family violence, to promote victim safety, and to reduce the impact of family violence on individuals, communities and society, through cultural competence, education, support, advocacy and referral."

For several years, the Council acted as a clearinghouse for the exchange of information and coordination of efforts among the various organizations, agencies, and individuals working in the field of domestic violence. Recently, the Council initiated a "Court Watch" program to monitor domestic violence related cases and collect information and statistics on the manner in which they are handled and decided. The Council conducts, or is planning to conduct, training for volunteers participating in the Court Watch program. The Council has begun keeping statistics on the number of domestic violence injunction requests received, and the number granted or denied, by each judge. The inquiring judge is concerned that the statistics are intended to influence judges in the performance of their duties.

In addition, the Chairperson of the Council recently sent a letter to the Chief Judge critical of the rulings entered in domestic violence injunction cases by one of the judges in the Chief Judge's circuit. The Chairperson requested a meeting with the Chief Judge, the judge whose rulings had been the subject of the letter to the Chief Judge and various parties to discuss that judge's "philosophical variance with the thinking of the domestic violence community."

The inquiring judge is concerned that the Council seems increasingly hostile to the judiciary, and appears to have become a political organization or an advocacy group. The judge is also concerned that there may be a conflict of interest for judges to serve as members of the Council with members who operate for-profit BIPs. These members would financially benefit from judges ordering perpetrators of domestic violence to BIPs.

First, the inquiring judge asks whether judges should be members of this organization, considering the recent activities of the group. He also asks whether there is a conflict of interest with the Council members who operate for-profit batterers' intervention programs. Next, the inquiring judge asks whether it is appropriate for the Council to meet in the courthouse. Finally, the inquiring judge asks whether it is appropriate for members of the judiciary to even attend the Council meetings and answer questions as they arise about court procedures.

DISCUSSION

A judge may serve on a task force, with the understanding that the activities of the task force are law related and gender neutral.1 See Fla. JEAC Op. 94-33. In Opinion 95-14, the Committee found that the Administrative County Judge in the Domestic Violence Court could ethically serve as one of three judges on an implementation committee for the Governor's Task Force on Domestic Violence. In that opinion, six members of the Committee noted that, in light of the caveat in the comments to Canon 5B(1)(a),2 a judge must regularly re-examine the propriety of continued membership in an organization because the "reputation and activism of the leadership or make-up of an organization concerning racial, ethnic and gender issues and the resulting perceived impression of the agenda of the organization within a community are valid and proper factors for a judge to consider in evaluating membership."

A judge, however, cannot be a member of a victim's advocate group. Pursuant to Canon 5A(1), a judge shall conduct all of the judge's extra-judicial activities so that they do not cast reasonable doubt on the judge's capacity to act impartially as a judge. In Opinion 98-08, the inquiring judge asked whether the judge could ethically belong to a victim's rights council that, among other things, sponsors (unofficially) training for judges; reviews judicial rulings and decisions relating to sentences, referrals to batterers' intervention programs, the ordering of child support, etc.; and supports bills and legislation. The Committee found that membership in such an organization would cast a reasonable doubt on the judge's capacity to act impartially as a judge. The Committee noted that in the minutes of the Council's meeting, frustration was expressed because the judges did not attend the meeting. A member of the Council "offered to chair a membership committee that would be responsible for encouraging judges to attend meetings using the art of gentle persistence." In its opinion, one Committee member noted, "If we are to maintain an independent judiciary, we must resist any efforts to use 'gentle persistence' to involve judges in the political side of issues that come before us." In Opinion 94-38, the Committee found that the sole judge handling all battery cases arising from domestic situations in a large part of the county could not serve on the domestic violence task force. The domestic violence task force was chaired by the executive director of a local domestic violence shelter, and the shelter apparently served female victims exclusively and maintained a "court watch" program on domestic battery cases. In that opinion, the Committee noted that "a judge should not feel forced or pressured to serve on any 'voluntary' committee or organizations that he or she feels may create interference with the performance of judicial duties."

A review of the Council activities as set forth by the inquiring judge requires the Committee to conclude that judicial membership on the Council is precluded by the Code of Judicial Conduct. Membership on the Council would cast a reasonable doubt on the judge's capacity to act impartially.

The Committee finds no conflict of interest per se with judges serving on a domestic violence council with other members who operate for-profit batterers' intervention programs. Section 741.281, Florida Statutes (2000), requires that a batterer be ordered to attend a BIP as a condition of probation.3 The BIP requirement is also set forth in the civil domestic violence injunction.4 Requiring a defendant or respondent to participate in a state certified BIP does not present a conflict of interest for the judge, if the judge serves on a Council with BIP providers. The judge receives no financial gain or other benefit by requiring that a defendant or respondent comply with the statutes by attending a BIP. As long as the defendant or respondent has the option to choose which BIP program to attend, the judge is not lending the prestige of the judicial office to further any private interest.5

The Committee declines to answer the question regarding whether the Council may meet in the courthouse. The question calls for a legal answer rather than an ethical answer.

Regarding the final inquiry, members of the judiciary may attend the Council meetings and answer questions about court procedure, as long as no comment is made about a pending or impending proceeding. A judge may speak, write, lecture, teach, and participate in other quasi-judicial activities concerning the law, the legal system, and the administration of justice, subject to the requirements of the Code. See Fla. Code Jud. Conduct, Canon 4B.

In Opinion 96-18, the Committee found that the judge could not meet with the ACLU to speak about a case where the judge had a recalcitrant witness arrested. However, the judge was not "prohibited from explaining the procedures of the court which most likely include the procedures by which a witness who refuses to obey a subpoena may be detained."

REFERENCES

§§741.281, .30(6)(a), .30(6)(d), Fla. Stat. (2000).

Yates v. State, 704 So. 2d 1159 (Fla. 5th DCA 1998).

Code of Judicial Conduct: Canons 4B, 5A(1), 5B(1)(a), Civic and Charitable Activities, now renumbered as 5C(3)(a)(i) & (ii), and Commentary thereto.

Florida JEAC Opinions: 89-10, 94-33, 94-38, 95-14, 96-18 and 98-8.

_____________

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. Davidson
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)

1Membership in a domestic violence task force does not require the trial judge to recuse himself or herself unless the task force advocates stiffer penalties for domestic violence abusers or the judge has indicated, through words or practice, a tendency to more severely punish domestic abusers. For example, in Yates v. State, 704 So. 2d 1159 (Fla. 5th DCA 1998), the trial judge had established and served as chair of a domestic violence task force. Judge Harris stated in his specially concurring opinion in Yates that the trial judge did not err in refusing to disqualify herself in a domestic violence criminal case:

Mere membership in the task force should not justify a belief that the judge cannot be fair unless there is a showing that the agenda of the task force advocates stiffer penalties for domestic abusers. The fact that a judge opposes domestic violence is no more relevant at sentencing than the fact that a judge opposes robbery or drug abuse; nor does it distinguish a particular judge from any other member of the bench... [A]ll judges oppose criminal conduct... If it could have been shown that the task force does advocate stiffer penalties for domestic abusers or that the judge has indicated, through words or practice, a tendency to more severely punish domestic abusers, then Yates would have had a basis for a reasonable fear that the judge would not be even-handed in the application of her discretion.
704 So. 2d at 1160 (Harris, J., specially concurring).

2In 1995, Canon 5B(1)(a), Civic and Charitable Activities, now renumbered as 5C(3)(a)(i) and (ii), stated:

A judge may participate in civic and charitable activities that do not reflect adversely upon his impartiality or interfere with the performance of his judicial duties. A judge may serve as an officer, director, trustee, or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members, subject to the following limitations: A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before him or will be regularly engaged in adversary proceedings in any court.

3Section 741.281, Florida Statutes (2000), states:

If a person is found guilty of, has had adjudication withheld on, or has pled nolo contendere to a crime of domestic violence, as defined in s. 741.28, that person shall be ordered by the court to a minimum term of 1 year's probation and the court shall order that the defendant attend a batterers' intervention program as a condition of probation.

4Section 741.30(6)(d), Florida Statutes (2000) states:

An injunction for protection against domestic violence entered pursuant to this section, on its face, may order that the respondent attend a batterers' intervention program as a condition of the injunction. Unless the court makes written factual findings in its judgment or order why batterers' intervention programs would be inappropriate, the court shall order the respondent to attend a batterers' intervention program if 1. It finds that the respondent willfully violated the ex parte injunction; 2. The respondent, in this state or any other state, has been convicted of, had adjudication withheld on, or pled nolo contendere to a crime involving violence or a threat of violence; or 3. The respondent, in this state or any other state, has had at any time a prior injunction for protection entered against the respondent after a hearing with notice.

It is mandatory that such programs be certified under s. 741.32.

Section741.30(6)(a), Florida Statutes (2000), states:
Upon notice and hearing, the court may grant such relief as the court deems proper, including an injunction: . . . 5. ordering the respondent to participate in treatment, intervention, or counseling services to be paid for by the respondent. When the court orders the respondent to participate in a batterers' intervention program, the court, or any entity designated by the court, must provide the respondent with a list of all certified batterers' intervention programs and all programs which have submitted an application to the Department of Corrections to become certified under s. 741.325, from which the respondent must choose a program in which to participate.

5Judges may not direct, as a condition of probation, that a probationer perform or participate in community service work for a specific private organization. See Fla. JEAC Op. 89-10.