FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2010-37
Date of Issue: November 18, 2010

ISSUE

Whether a judge may allow juveniles to perform their community service hours by participating in a jogging program with him.

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

FACTS

The inquiring judge is assigned to a juvenile division in which the judge sometimes orders juveniles to perform community service hours as a condition of probation.  The judge wants to create a program allowing juveniles to perform their community service hours by jogging with the judge at a school near the juvenile courthouse.  The judge states that the program would be optional, and that law enforcement and juvenile probation officers would be present to certify the juveniles’ presence so that the judge would not become a potential witness if an issue arises about a juvenile’s involvement in the program.  The judge would not engage in conversation with the juveniles about their cases.  The judge further states that if any case raises conflict issues, the judge would enter an order of recusal.

The judge wishes to create this program to serve juveniles in several ways:  curb their delinquency; improve their health; give them a more positive self-image; and provide them with positive role models.

DISCUSSION

It appears that the judge’s desire to create this program is well-intentioned.  However, the judge’s participation in such a program likely would violate Canons 2A, 2B, 3B(7), and 5A(1), (2), (5) & (6) of the Code of Judicial Conduct.

Canon 2A 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.

“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:

A judge shall not allow . . . relationships to influence the judge’s judicial conduct or judgment.

Canon 3B(7) states, in pertinent part:

A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding.

Canon 5A states, in pertinent part:

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 indepen-dence, integrity, or impartiality; . . .

* * *

(5)           lead to frequent disqualify-cation of the judge; or

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

Here, we foresee the judge’s impartiality being questioned in several ways.  Although the judge states that the program would be optional, the judge should consider the perspective of the juvenile who is unwilling or unable to participate in the program.  That juvenile reasonably may suspect that he or she will receive less favorable treatment than those who participate in the program.  See Canons 2A, 5A(1) & (2).  To the extent that suspicion leads a juvenile to participate in the program, the program may “appear to a reasonable person to be coercive.”  See Canon 5A(6).  The state also reasonably may suspect that the judge will provide more favorable treatment to juveniles who participate in the program than those who do not.  See Canons 2A, 2B, 5A(1) & (2).

As the inquiring judge recognizes, the judge may have personal knowledge of the juveniles’ involvement in the program.  If a dispute arose regarding that involvement, the judge would be required to enter an order of recusal regardless of whether law enforcement and juvenile probation officers were present to serve as witnesses.  See Canon 3E(1)(a) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including . . . where . . . the judge has . . . personal knowledge of disputed evidentiary facts.”).  Even if the judge did not have personal knowledge of the disputed facts, the judge may create the appearance that the judge's relationships with those involved will influence the judge's decision.  See Canons 2A, 2B, 5A(1) & (2).

As the inquiring judge also recognizes, although the judge would not initiate conversation with the juveniles about their cases, the program creates an opportunity for juveniles to initiate conversation with the judge.  Thus, the judge would be creating a situation permitting ex parte communi-cations.  See Canon 3B(7).  Even if the judge later informed the state that the ex parte communications would not be considered, the state reasonably may suspect that the judge is unable to exclude such communications from consideration, thereby casting doubt on the judge's capacity to act impartially.  See Canons 2A, 5A(1) & (2).

In re Henderson is instructive.  In that case, a judge formed a relationship with a former defendant who had substance abuse problems.  22 So. 3d at 60.  The judge agreed to act as the man’s friend and mentor to assist him in living a straight, sober, and productive lifestyle.  Id. at 61.  The judge’s participation in that relationship resulted in a series of actions and events, not necessarily relevant here, which violated Canons 2A, 2B, and 5A.  Id. at 62.The Supreme Court recognized that the judge’s conduct was “not ill intentioned.”  Id. at 65. 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 64.

The actions and events in which Judge Henderson ultimately engaged in that case were much more serious than the jogging program which the inquiring judge desires to create here.  However, the import of Henderson is that a judge who wishes to participate in a defendant's rehabilitation may be better served by limiting his or her relationship with that person to the courtroom and its rules.  Otherwise the judge runs the risk of creating a relationship, or the appearance of a relationship, which undermines the judge’s impartiality.

Our opinion is not changed by the inquiring judge’s caveat that if any cases raise conflict issues, the judge simply would enter an order of recusal. Such behavior likely would violate Canon 5A(6), which states that “[a] judge shall conduct all of the judge’s extra-judicial activities so that they do not . . . lead to frequent disqualification of the judge.”

REFERENCES

Cases:  In re Henderson, 22 So. 3d 58 (Fla. 2009).

Code of Judicial Conduct:  Canons 2A, 2B, 3B(7), 3E(1)(a), 5A(1), (2), (5) & (6).

_____________

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 Kerry I. Evander, Chair, Judicial Ethics Advisory Committee, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, Florida  32114-5002.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge Jonathan D. Gerber, Patricia Lowry, Esquire, Judge T. Michael Jones, Judge Jose′ Rodriguez, Judge C. McFerrin Smith, III, 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)