FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2005-03
Date of Issue: February 8, 2005

ISSUES

May a judge serve as a guardian of the person for a child who is not a member of the judge’s family?

ANSWER: No.

FACTS

A child has been left without a parent as a result of his mother’s recent death. His father abandoned the family and fled the United States fifteen years ago as a result of a pending criminal prosecution. There are no other viable family options and the child has resided with and been friends of the inquiring judge’s family. Thus, the inquiring judge wants to become the guardian of the child (person only; not assets).

DISCUSSION

Canon 5(E)(1) provides:

(1) A judge shall not serve as executor, administrator or other personal representative, trustee, guardian, attorney in fact or other fiduciary, except for the estate, trust or person of a member of the judge's family, and then only if such service will not interfere with the proper performance of judicial duties. (Emphasis added).

In Fla. JEAC Op. 97-4, the committee was posed with a similar question: may a judge continue to serve in the capacity of a guardian of the property of a physically disabled man after assuming the bench? The committee concluded that under Canon 5(E)(1) the judge could not continue to serve as guardian. Under the factual scenario presented in this inquiry, the plain language of the Code of Judicial Conduct prohibits a judge from serving as a fiduciary, when the child is not a member of his family, whether the guardianship is of the person or the property. There is no limitation made within Canon 5(E)(1) as to what type of fiduciary capacity a judge may hold. On the contrary, Canon 5(E)(1) language “other fiduciary” is all inclusive. Thus, the language of this Canon is clear and unambiguous and conveys a clear and definite meaning. Hence, the Canon must be given its plain and obvious meaning. Accordingly, the appointment of the inquiring judge as a guardian of the person of a minor child is not permissible under Canon 5(E)(1), unless the minor child is a member of his family.

A minority of the Committee suggests that the child may classify as a family member, as that term is defined under the Code. A “member of the judge’s family” denotes a spouse, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship (emphasis added). See Definition Section of Fla. Code Jud. Conduct.1 If the child is a “member of the judge’s family” the inquiring judge may be appointed guardian.

REFERENCES

Fla. Code Jud. Conduct, Canon 5(E)(1).

Fla. JEAC Op. 97-4 and 04-05.

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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 Melanie May, Judge Michael Raiden, Judge Jose Rodriguez, Judge McFerrin Smith, III, Judge Emerson R. Thompson, Jr. Judge Richard R. Townsend, Judge Dorothy Vaccaro, Ervin Gonzalez, Esquire, 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)

1. In Fla JEAC Op. 2004-05, this Committee opined that “member of the judge’s family” under the Code contemplated a close familial relationship of the kind that exists within the immediate family.