FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2010-01
Date of Issue: January 21, 2010

ISSUE

Whether a judge may rent a room in the judge’s home to a non-related individual who is on community control.

ANSWER: No. Such an action, even if well-intentioned, reasonably could place the judge in situations undermining the integrity and impartiality of the judge’s judicial office and creating the appearance of impropriety.

FACTS

The inquiring judge presides over a criminal division which includes defendants on felony probation, but not community control.  The inquiring judge also presides over first appearances which includes defendants arrested for violations of community control.  The inquiring judge is considering renting a room in the inquiring judge’s home to a non-related individual who is on community control in the jurisdiction in which the inquiring judge sits.  The inquiring judge has discussed this question with the jurisdiction’s administrative judge, who has responded that, if the individual was arrested for a violation of community control, the administrative judge would assign a different judge to preside over the individual’s first appearance.

DISCUSSION

Discussion of the issue requires a basic description of “community control.”  Community control means a form of intensive, supervised custody upon an offender in the community, including surveillance on weekends and holidays, administered by Department of Corrections probation officers with restricted caseloads. See § 948.001(2), Fla. Stat. (2009). Community control is an individualized program in which the freedom of an offender is restricted within the community, home, or noninstitutional residential placement, and specific sanctions are imposed and enforced.  Id.  For an offender placed into community control, a sentencing court shall require intensive supervision and surveillance, which may include but is not limited to: (1) specified contact with the probation officer; (2) confinement to an agreed-upon residence during hours away from employment and public service activities; (3) mandatory public service; (4) supervision by the Department of Corrections by means of an electronic monitoring device or system; and (5) the standard conditions of probation set forth in section 948.03, Florida Statutes. See § 948.101(1)(a), Fla. Stat. (2009).

If a judge rented a room in the judge’s home to a non-related individual who is on community control, we reasonably can foresee that the judge could become a witness to the individual’s conduct.  The judge possibly would observe whether the individual is complying with, or violating, the terms of community control.  The judge possibly would have contact with the probation officers supervising the individual’s community control.  The judge also would have a financial interest in rent which may compete with the individual’s requirement to pay supervision fees and other monetary conditions.

As a result, the judge potentially could be placed in problematic situations:

• If a judge witnesses the individual violate community control, the judge “must not initiate the communication of information to a sentencing judge or a probation or corrections officer.”  Canon 2B, Comment, Fla. Code Jud. Conduct.  The judge may only provide such information to such persons in response to a formal request.  Id.

• If probation officers seek information from the judge, the probation officers may feel influenced by the judge’s judicial office and the judge’s financial interest in rent in evaluating the information which the judge provides.

• If the state accuses the individual of violating community control, the individual may call the judge as a witness in defense against the alleged violation.

• If the judge witnessed the individual violating community control, the state may call the judge as a witness in the prosecution of the violation.

• Even though “[a] judge may . . . testify when properly summoned,” “a lawyer who regularly appears before the judge may be placed in the awkward position of cross-examining the judge.”  Canon 2B, Comment, Fla. Code Jud. Conduct.

In all of these situations, the judge’s personal credibility and, indirectly, that of the judge’s judicial office, could be an issue.  Thus, a judge who potentially could be placed in these situations by renting a room in the judge’s home to a non-related individual who is on community control likely would violate Canons 2A, 2B, 5A, and 5D(1)(a) of the Code of Judicial Conduct.

Canon 2A states:

A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

“This provision is not an aspirational principle but a clear and unequivocal mandate.”  In re Henderson, 22 So. 3d 58 (Fla. 2009) (citation omitted).  The commentary to Canon 2A further explains:

Irresponsible or improper conduct by judges erodes public confidence in the judiciary.  A judge must avoid all impropriety and the appearance of impropriety.  A judge must expect to be the subject of constant public scrutiny.  A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.  . . .

The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge.

Canon 2B states, in pertinent part:

A judge shall not lend the prestige of judicial office to advance the private interests of the judge . . . .

Canon 5A states, in pertinent part:

Extrajudicial Activities in General. A judge shall conduct all of the judge’s extra-judicial activities so that they do not:

(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge;

(2) undermine the judge's independence, integrity, or impartiality;

(3) demean the judicial office;

. . . or

(6) appear to a reasonable person to be coercive.

Canon 5D(1)(a) states:

A judge shall not engage in financial and business dealings that may reasonably be perceived to exploit the judge’s judicial position.

To the extent that probation officers may perceive the judge as unduly influencing their decision whether to charge the individual with violating community control due to the judge’s judicial office and financial interest in rent, such a perception could undermine public confidence in the integrity of the judiciary, create an appearance of impropriety, and appear to a reasonable person to be coercive.  Having a judge testify in a violation of community control hearing for the state or a defendant further could undermine public confidence in the impartiality of the judiciary, create an appearance of impropriety, and demean the judicial office.

Given the foregoing discussion, we find the possibility of a judge renting a room in the judge’s home to a non-related individual who is on community control to be the type of conduct which Canons 2A, 2B, 5A, and 5D(1)(a) restrict.  Even if a judge views such a restriction as burdensome to the judge’s well-intentioned personal conduct, the judge must accept that restriction, and should do so freely and willingly.

In re Henderson is instructive.  In that case, a judge formed a relationship with a person who was formerly a defendant in her court and was a convicted felon with substance abuse problems.  22 So. 3d 58 (Fla. 2009) at *1-2.  The individual, while in an impaired and disorderly state, came to the judge’s residence in the early morning hours, prompting the judge to call 911.  Id. at *2.  After the individual left, the judge advised law enforcement that help was no longer needed, and that she would not fill out a complaint affidavit.  Id.  On a later date, the individual, while drunk and disorderly, created a disturbance at the judge’s chambers.  Id.  After the individual was arrested, the judge chose not to make a statement about the incident.  Id.  The Judicial Qualifications Commission (“JQC”) found that those actions, as well as other actions, violated the Code of Judicial Conduct, including Canons 2A, 2B, and 5A.  Id.  After reviewing the record, the Supreme Court concluded there was sufficient evidence to support those findings.  Id. at *4.  The court agreed with the JQC that the judge’s conduct was “misguided, [but] it was not ill intentioned.”  Id. at *6 (alteration in original).  However, the court noted that, “even in private life, a judge must accept restrictions, even on well-intentioned conduct, that are not imposed on the ordinary citizen, in order to avoid both impropriety and the appearance of impropriety.”  Id. at *4.

Although Henderson did not involve the individual residing as a  tenant in the judge’s home, we can foresee that the tenancy relationship to which the inquiring judge refers here could result in situations akin to those in Henderson if the individual violates community control.  Thus, to avoid violating the Code of Judicial Conduct as in Henderson, we find that judges should not place themselves in potentially similar situations by renting a room in the judge’s home to a non-related individual who is on community control.

In rendering this opinion, our conclusion is not changed by the inquiring judge’s caveat that the judge currently sits in a criminal division.  Even if the judge sat in a non-criminal division, we would reach the same opinion.  Our conclusion also is not changed by the judge’s caveat that, if the individual was arrested for a violation of community control, a different judge would preside over the individual’s first appearance.  As stated above, we reasonably foresee other situations which could undermine the integrity and impartiality of the judge’s judicial office and create the appearance of impropriety.

REFERENCES

22 So. 3d 58 (Fla. 2009)
Fla. Code Jud. Conduct:  Canons 2A, 2B, 5A, 5D(1)(a)

_____________

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 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. See Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualifications Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. See Id.

The opinions of this Committee express no view on whether any proposed conduct of an inquiring judge is consistent with the substantive law which governs any proceeding over which the inquiring judge may preside.  This Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with the issue of whether the proposed conduct violates a provision of that Code.

For further information, contact: Judge T. Michael Jones, Chair, Judicial Ethics Advisory Committee, 190 Governmental Center, M.C. Blanchard Judicial Building, Pensacola, Florida  32502.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Jose′ Rodriguez, Judge Richard R. Townsend, and Judge Dorothy Vaccaro.


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
Inquiring Judge (Name of inquiring judge deleted from this copy)