FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2002-15
Date of Issue: June 28, 2002

JUDGE'S SPOUSE IS THE SUPERVISOR/COORDINATOR OF A PRETRIAL ASSESSMENT DIVISION THAT MAKES RECOMMENDATIONS TO THE COURT REGARDING A DEFENDANT'S COMPLIANCE WITH NON-MONETARY CONDITIONS OF BAIL

ISSUES

May a judge, who is the spouse of a supervisor/coordinator of a Pretrial Services Assessment Division, preside over a conference in which assessment officers, under the supervision of the spouse, make recommendations to the Court regarding the likelihood of defendants complying with non- monetary conditions of bail?

ANSWER: Yes, according to a majority of the JEAC.

FACTS

The inquiring Judge has been assigned as magistrate to determine probable cause on arrest affidavits and to set conditions for pretrial release for defendants pursuant to Section 903.047, Florida Statutes. There are only two County Judges in the inquiring judge's assigned location, and they alternate this duty on the weekdays. The Court utilizes the service of a Pretrial Services Assessment Division which gathers facts and objectively assesses the likelihood of a defendant complying with non-monetary conditions of release. The oral evaluations and recommendations are presented at a conference in chambers which is attended by an Assistant State Attorney and an Assistant Public Defender and which may be attended by private defense counsel at their option. The Court may accept, reject, or modify any observations reported by any and all of those participating. The Judge is solely responsible for setting the bond and any conditions for release.

The Pretrial Services Assessment Division has three assessment officers which are supervised by the Judge's spouse. The spouse/coordinator is supervised by the Agency Director, who is supervised by the Trial Court Administrator, who is under the supervision of the Chief Judge. Pursuant to an Order of the Agency Director, issued as a result of Fla. JEAC Op. 02-02, the spouse/coordinator does not participate in the bond conferences presided over by spouse/judge.

DISCUSSION

The inquiring judge and the supervisor of the judge's spouse have concerns over the interpretation and application of this Committee's Opinion in Fla. JEAC Op. 02-02. A sharply divided Committee recently opined that the Administrative Judge of a Family Law Division is in violation of the Code of Judicial Conduct if the Judge's spouse is employed as a case manager in the Family Law Division. The majority found that the specific facts of that inquiry led to the conclusion that the relationship between the judge and the case manager may violate Canons 1, 2 and 2A of the Code of Judicial Conduct. The committee was concerned that the relationship would compromise public confidence in the judge's ability to uphold the integrity and independence of the Judiciary (Canon 1), may be perceived as an appearance of impropriety (Canon 2), and may not provide confidence in the integrity and impartiality of the judiciary (Canon 2A). A significant minority did not find a threat to the independence or integrity of the judiciary, nor did it find an appearance of impropriety.

The inquiry sub judice is distinguishable from the inquiry in Fla. JEAC Op. 02-02. In Opinion 02-02, this Committee relied upon an admission of the inquiring judge that the spouse would perform work and make decisions that would affect the inquiring judge's division. There are no such facts stated in this case. To the contrary, the spouse/coordinator's director has recognized the potential problem and taken proper steps to avoid any appearance of impropriety by directing the spouse not to participate in the bond conference of the spouse judge. However, it is incumbent upon the inquiring judge to be constantly vigilant in monitoring whether or not the spouse is participating in the process. If the judge, at any time, concludes that the spouse is involved in the process, the judge should ask the Chief Judge to provide other judicial coverage of bond conferences.

A review of past opinions regarding employment of the judge's spouse in a related field suggests that the result depends upon the relationship of the employing entity to the judge and the spouse's degree of participation. This Committee has opined that a judge is not disqualified merely because the judge's relative is employed by the State Attorney's Office (Fla. JEAC Op. 77-12), the Public Defender's Office (Fla. JEAC Op. 77-4), Legal Services Corporation (Fla. JEAC Op. 83-10), or Legal Aid (Fla. JEAC Op. 97-25). This Committee has opined that a judge is subject to disqualification if the judge's relative is the Public Defender (Fla. JEAC Op. 01-05), an assistant to the director of a pre- trial intervention program (Fla. JEAC Op.84- 2), an employee of a law firm that appears in the judge's court (Fla. JEAC Op. 97-8), or an attorney or manager with HRS involved in dependency cases when the spouse is a dependency judge (Fla. JEAC Op. 90-23 and 93-51).

The foregoing opinions demonstrate that inquiries of this nature must be resolved on a case by case basis and are fact specific. Therefore, this Committee cannot establish a bright line standard that applies to all cases. In cases such as this in which the judge's spouse is employed by the judicial branch of government, and whose duties are marginally related to the judge's duties, it is incumbent upon the judge and Chief Judge to determine whether or not a specific employment violates the spirit of the Code of Judicial Conduct. If the judge's spouse performs work and makes decisions affecting the inquiring judge's decisions, there is an appearance of impropriety. If the judge's spouse does not perform work nor make decisions affecting the judge's decisions, there is no appearance of impropriety, and there is no violation of the Code of Judicial Conduct.

A minority of the participating members of the JEAC (consisting of five members) disagree with this conclusion. As one dissenting member aptly stated:

I do not believe that this...judge should preside over 'conferences' during which one of three assessment officers, who are supervised by the judge's spouse, make recommendations concerning pre-trial release. The cast here is just too small. No reasonable person would believe that the supervisor is never involved in the decisions or recommendations eventually heard by the supervisor's spouse, considering the fact that there are only three other assessment officers. Moreover, this judge is setting [himself/herself] up for a ton of trouble just as soon as [he/she] makes a release decision based upon a serious crime. The other side of the coin is just as unattractive. A defendant who is denied pretrial release in the face of a recommendation otherwise, or who is given an inordinately high bond, could easily complain that the judge was influenced because her husband supervises the office that gives pre-trial advice, and the judge has unfairly bent over backwards in order to avoid bad publicity in a difficult case.
REFERENCES

Florida Code of Judicial Conduct Canons 1, 2, and 2A.

Fla. JEAC Op. 02-02, 01-05, 97-25, 97-8, 93- 51, 90-23, 84-02, 83-10, 77-12, 77-4.

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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 The Honorable Scott J. Silverman, Chairman, Judicial Ethics Advisory Committee, The Richard E. Gerstein Justice Building, 1351 NW 12th St #712, Miami, FL 33125

Participating Members: Judges Davidson, Kahn, Kotey, Levy, Rodriguez, Silverman, Smith, Swartz, Thompson, Townsend and Attorney Graham

Copies furnished to:
Chief 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)