FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2010-09
Date of Issue: April 19, 2010

ISSUE

Whether a judge married to the elected public defender in the judge’s circuit may preside over cases to which the public defender is assigned in the juvenile and mental health divisions, if private attorneys handle the cases under case-by-case contracts, and the public defender does not exercise any supervisory authority over those attorneys.

ANSWER: No.

FACTS

The inquiring judge is married to the elected public defender.  The inquiring judge informs us that, when the public defender is assigned to cases in the circuit’s juvenile and mental health divisions, private attorneys handle the cases under case-by-case contracts, and the public defender does not exercise any supervisory authority over those attorneys.  Given those facts, the inquiring judge wants to know whether the judge can preside over cases to which the public defender has been assigned in the juvenile and mental health divisions.

DISCUSSION

The inquiring judge may not preside over cases to which the public defender was assigned in the juvenile and mental health divisions, even if private attorneys handle those cases under case-by-case contracts, and even if the public defender does not exercise any supervisory authority over those attorneys.  By law, the public defender ultimately is responsible for those cases, and for the employment of persons handling those cases.  See § 27.51(1), Fla. Stat. (2009) (“The public defender shall represent … any person deemed to be indigent … and:  … [a]lleged to be a delinquent child ... [or] [s]ought by petition … to be involuntarily placed as a mentally ill person … .”);  § 27.53(1), Fla. Stat. (2009) (“The public defender … is authorized to employ … assistant public defenders and other staff and personnel … .”).  Thus, if the inquiring judge were to preside over those cases, the inquiring judge may violate four canons of the Code of Judicial Conduct:

Canon 2A, which states, in pertinent part:  “A judge ... shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  Canon 2A’s commentary further explains:  “A judge must avoid all impropriety and the appearance of impropriety.”;

Canon 2B, which states, in pertinent part:  “A judge shall not allow family ... relationships to influence the judge’s judicial conduct or judgment.”;

Canon 3B(5), which states, in pertinent part:  “A judge shall perform judicial duties without bias … .”; and

Canon 3E(1)(d)(ii), which states, in pertinent part:  “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might be questioned, including but not limited to instances where … the judge’s spouse … is acting as a lawyer in the proceeding … .”

If the inquiring judge were to preside over cases to which the judge’s public defender-spouse was assigned, and for which the public defender-spouse ultimately is responsible, the inquiring judge reasonably may create the appearance of impropriety any time the judge rules in favor of the defendant whom the public defender was assigned to represent.  Further, it reasonably may appear that the judge allowed a family relationship with the public defender to influence the judge’s judgment.  Conversely, any time the judge rules in favor of the state, it reasonably may appear to the defendant that the judge allowed a family relationship with the public defender to influence the judge’s judgment in an effort to avoid the appearance of impropriety.  In sum, if the judge were to preside over cases to which the public defender was assigned, it reasonably may appear that the judge was performing the judge’s judicial duties with bias because of a relationship with the public defender, who ultimately is acting as the defendant’s lawyer in the proceeding.

Our opinion today is consistent with our prior opinion in Fla. JEAC Op. 01-05, in which we advised that a judge who was married to the public defender in the judge’s circuit could not preside over cases to which the public defender was assigned in the criminal division.  There, the public defender attempted to remove herself from direct and indirect supervision of the assistant public defenders who appeared before the judge.  However, the judge noted that, even though the public defender was not directly involved in supervision of a given case, “it is clear that she is the boss.”  Citing sections 27.51 and 27.53, Florida Statutes, we advised that Canon 3E(1)(d)(ii) disqualified the judge from hearing cases involving the public defender because the public defender:  (1) is the attorney of record in cases where the public defender has been assigned; (2) is in charge of all assistant public defenders; and (3) appointed the assistant public defenders at her sole discretion.  We further noted:

[T]he remittal of disqualification procedure of Canon 3F is apparently available to this inquiring judge.  Nevertheless, because the judge would know in advance that he would be disqualified from a large number of criminal cases, the procedure of remitting disqualification would be quite burdensome, and perhaps completely ineffective.  Moreover, the Committee is concerned that the appearance of impropriety created where the presiding judge’s spouse is the elected public defender, would militate in favor of blanket disqualification.

Given the similarity of Fla. JEAC Op. 01-05 to this case, we advise the inquiring judge not to preside over cases to which the public defender is assigned in the juvenile and mental health divisions.

REFERENCES

Fla. Stats., Sections 27.51(1), 27.53(1) (2009)
Fla. Code Jud. Conduct, Canons 2A, 2B, 3B(5), 3E(1)(d)(ii), 3F
Fla. JEAC Op. 01-05

_____________

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 Jonathan D. Gerber, Judge T. Michael Jones, Judge José Rodriguez, Judge C. McFerrin Smith III, Judge Richard R. Townsend, 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)