FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2003-08
Date of Issue: June 5, 2003

DISQUALIFICATION OF JUDGE WHEN SPOUSE IS "CHILD VICTIM SPECIALIST" IN STATE ATTORNEY'S OFFICE

ISSUES

1. Does the Code of Judicial Conduct require disqualification in all criminal cases that the judge's spouse is a "Child Victim Specialist" in the state attorney's office? If not, is the Code of Judicial Conduct satisfied if the judge only discloses the relationship in those cases in which there are allegations of sexual abuse to a child?

ANSWER: No; Yes.

2. Does the Code of Judicial Conduct mandate the disqualification of a criminal division judge whose spouse is a "Child Victim Specialist" in cases in which the spouse has no involvement and in which there are no allegations of sexual abuse to a child?

ANSWER: No.

3. Does the Code of Judicial Conduct mandate the disqualification of a criminal division judge whose spouse is a "Child Victim Specialist" in cases in which the spouse has no involvement, but in which there are allegations of sexual abuse to a child?

ANSWER: No.

FACTS

The inquiring judge is currently assigned to a busy criminal division. The judge's spouse is employed by the state attorney's office as a "Child Victim Specialist." The job requires the judge's spouse to conduct interviews of children who are allegedly victims of sexual abuse. The judge's spouse is not an attorney. Occasionally the judge's spouse testifies in deposition or in open court. It is unlikely that cases involving the judge's spouse will fall before the judge's division. Should that rare occasion occur, the judge will sua sponte enter an order of disqualification.

The judge is cognizant of JEAC Op. 97-10 and Canon 3E (impartiality reasonably be questioned). Based upon the judge's interpretation of that opinion and canon, the judge discloses (either orally or by using a Notice of Disclosure) the relationship in cases in which children are allegedly victims of sexual abuse. The judge asks whether disclosure of the relationship is required in other types or kinds of cases.

DISCUSSION

Canon 3E of the Code of Judicial Conduct provides that:

(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) the judge served as a lawyer or was the lower court judge in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it;

(c) the judge knows that he or she individually or as a fiduciary, or the judge's spouse, parent, or child wherever residing, or any other member of the judge's family residing in the judge's household has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding;

(d) the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(I) is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) is acting as a lawyer in the proceeding;

(iii) is known by the judge to have a more than de mimimus interest that could be substantially affected by the proceeding;

(iv) is to the judge's knowledge likely to be a material witness in the proceeding.

(2) A judge should keep informed about the judge's personal and fiduciary economic interests, and make a reasonable effort to keep informed about the economic interests of the judge's spouse and minor children residing in the judge's household.

The employment of a judge's spouse or other relatives can create an ethical violation for the judge if the employment is sufficiently involved or related to the judge's particular court or its operation. As this committee recognized in Florida JEAC Opinion 2002-15, the result depends upon the relationship of the employing entity to the judge and the spouse's degree of participation. This committee noted that inquiries of this nature are fact specific and must be resolved on a case by case basis.

This Committee opined in Fla. JEAC Op. 77-12 that a judge is not disqualified merely because the judge's relative is employed by the State Attorney's Office, 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).

In Opinion 2002-15, a majority of this Committee opined that a judge whose spouse is the supervisor/coordinated of a pre-trial services assessment division may preside over a conference in which an assessment officer, under the supervision of the spouse, makes recommendations regarding the likelihood of defendant's complying with non-monetary conditions of bail. In that case the judge's spouse was directed by her supervisor not to participate in the bond conference. In the instant case, the inquiring judge clearly recognizes that the judge cannot sit in any case where the spouse is a participant.

In Opinion 2002-02, this Committee opined that it is a violation of the Code of Judicial Conduct for the spouse of the Administrative Judge of the Family Division to be employed by the Court Administrator's office as a case manager in the family law division. In that opinion this Committee relied upon an admission by the inquiring judge that the spouse would perform work and would make decisions that would affect the inquiring judge's division. In the instant case the inquiring judge enters an order of disqualification in any case where the spouse is involved. Thus, this case is factually distinguishable from Opinion 2002-02.

There is no requirement that the inquiring judge make disclosure in all criminal cases. However, the judge should make the disclosure in cases involving allegations of sexual abuse to a child so that the defendant and the state can determine whether the judge's spouse is, or will be, involved in the case. There is no requirement that the judge disqualify himself in criminal cases where the spouse has no involvement and there are no allegations of sexual abuse to a child.

The Code of Judicial Conduct does not mandate disqualification of the judge in a criminal case in which the spouse has no involvement, but in which there are allegations of sexual abuse to a child.

REFERENCES

Florida Code of Judicial Conduct, Canon 3E

Fla. JEAC Op. 77-4

Fla. JEAC Op. 77-12

Fla. JEAC Op. 83-10

Fla. JEAC Op. 84-2

Fla. JEAC Op. 90-23

Fla. JEAC Op. 93-51

Fla. JEAC Op. 97-8

Fla. JEAC Op. 97-10

Fla. JEAC Op. 97-25

Fla. JEAC Op. 01-05

Fla. JEAC Op. 02-02

Fla. JEAC Op. 02-15

_____________

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 Phyllis D. Kotey, Judicial Ethics Advisory Committee, Eighth Judicial Circuit, Alachua County Courthouse, 201 East University Avenue, Room 205, Gainesville, Florida 32601.

Participating Members:
Judge Lisa Davidson, Judge Charles Kahn, Judge Phyllis Kotey, Judge Melanie May, Judge Jose Rodriguez, Judge McFerrin Smith, Judge Jeffrey Swartz, Judge Emerson Thompson, Judge Richard Townsend, and Ervin Gonzalez, 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)