FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2004-13
Date of Issue: April 5, 2004

ISSUES

May a judge, who recused himself/herself from a case respond to the Florida Parole Commission's request for input on a defendant's request for waiver of rules of executive clemency?

ANSWER: Yes.

FACTS

The Inquiring Judge received a request from the Florida Parole Commission regarding an inmate's request for waiver of the rules of executive clemency. The Parole Commission is seeking "any information or recommendation" that the Inquiring Judge may wish to submit. The inmate's case involved a homicide that the Inquiring Judge presided over in the early 1990s. The Inquiring Judge remembers the inmate's case well. After the inmate's second degree murder conviction, and after the sentence was affirmed by the district court of appeal, the inmate began filing "abusive" materials with the Inquiring Judge. As a result of these actions by the inmate, the Inquiring Judge recused himself/herself from presiding over any further matters in the case.

The Inquiring Judge questions whether he/she can respond to the Parole Commission's inquiry for information or recommendations about this case in light of the fact that he/she has recused himself/herself.

DISCUSSION

A judge shall perform the duties of judicial office impartially. Fla. Code Jud. Conduct, Canon 3. A judge is required to recuse himself/herself when his/her impartiality might reasonably be questioned. Fla. Code Jud. Conduct, Canon 3E(1). Due to the "abusive" materials that the inmate filed with the Inquiring Judge's office, the Inquiring Judge recused himself/herself from all post-conviction proceedings pertaining to the inmate's case. Consequently, on his/her own initiative, the Inquiring Judge, removed himself/herself from the role of the "impartial magistrate" in the defendant's case to comply with Canon 3E.

However, the request that the Inquiring Judge received from the Parole Commission does not require the Inquiring Judge to act in the role of an impartial magistrate. The inquiry asks the Judge for any information or recommendations he/she has on this matter. A judge may respond to a formal request from a sentencing judge or a probation officer or a corrections officer regarding information about a defendant. See Fla. Code Jud. Conduct, Commentary to Canon 2C. The same would hold true for a request from the Florida Parole Commission regarding information about an inmate. (See JEAC Opinion 2002-04 in which the Committee stated that a chief judge of a circuit could respond in writing to applications for clemency filed by convicted defendants with the Office of Executive Clemency or to requests from the Florida Parole Commission for written objections to parole release.)

The Committee finds that the Inquiring Judge's recusal from handling post- conviction matters regarding the inmate's second degree murder conviction does not preclude him/her from answering the formal inquiry of the Parole Commission.

REFERENCES

Fla. Code Jud. Conduct,

Commentary to Canon 2C Fla. Code Jud. Conduct,

Canon 3E(1)

JEAC Opinion 2002-04

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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 Richard R. Townsend, Acting Chair, Judicial Ethics Advisory Committee, Post Office Box 1018, Green Cove Springs, Florida 32043.

Participating Members:
Judge Robert Benton, Judge Karen Cole, Judge Lisa Davidson, Judge Phyllis Kotey, Judge Melanie May, Judge Jose Rodriguez, Judge McFerrin Smith, III, Judge Jeffrey D. Swartz, Judge Emerson R. Thompson, Jr. Judge Richard R. Townsend, and Marjorie Gadarian Graham, Esquire.


Copies furnished to:
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator
(Name of inquiring judge deleted from this copy)