FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Recedes from Opinions 77-12 and 77-04
Opinion Number: 2011-21
Date of Issue: December 20, 2011
May a judge preside over felony arraignments in a county where the judge’s spouse is the supervisor of the State Attorney’s Office?
The inquiring judge will sit in two counties within the same circuit. While in one county, the inquiring judge will preside over the felony arraignment docket. The inquiring judge’s spouse is the supervisor of the State Attorney’s Office in that county.
Canon 3E of the Florida Code of Judicial Conduct sets forth those instances under which a judge must disqualify himself or herself in a proceeding. Specifically, Canon 3E (1) provides that a judge “shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .” Such a proceeding includes one where the judge’s spouse “is acting as a lawyer.” Fla. Code Jud. Conduct, Canon 3E (1)(d)(ii).
Moreover, Canon 2A states that “[a] judge shall . . . act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,” with the comments to that Canon clarifying that a judge must “avoid all impropriety and appearance of impropriety.” Fla. Code Jud. Conduct, Canon 2A and comments thereto.
It should be noted that although this Committee has issued opinions suggesting that a judge is disqualified where the judge’s spouse is an attorney with a law firm appearing before the judge, see Fla. JEAC Ops. 97-8; 84-24, this Committee has also opined that employment by the Public Defender’s Office and the State Attorney’s Office is not the same as employment with a law firm. See Fla. JEAC Ops. 08-06 n.2; 97-25 (“At a very early date this Committee took the position that the employment by the public defender or state attorney was not the same as a law firm.”).
In this regard, the Committee has previously advised that a judge assigned to the juvenile division was not required to recuse from cases handled by the Public Defender’s Office, where his brother was the chief assistant public defender in the juvenile division and was responsible for assigning the public defenders who would appear in the juvenile division. Fla. JEAC Op. 77-4; see also Fla. JEAC Op. 77-12 (judge would not be disqualified from criminal cases where his brother was the administrative division chief for the State Attorney’s Office).
More recently however, in Fla. JEAC Op. 01-05, the Committee advised a judge who was married to the elected public defender in the judge’s circuit that he could not preside over cases in the criminal division to which the public defender was assigned. The inquiring judge stated that his spouse had attempted to remove herself from direct and indirect supervision of the assistant public defenders appearing before the inquiring judge, but that even though the public defender may not have been directly involved in supervision of the given case, “it is clear that she is the boss.” In reaching its conclusion, the Committee relied in part on the fact that the public defender is in charge of all of the assistant public defenders. Likewise, in Fla. JEAC Op. 10-09, the Committee determined that the inquiring judge, who was married to the elected public defender in the judge’s circuit, may not preside over cases to which the public defender was assigned, even where those cases were handled by private attorneys over which the public defender did not exercise any supervisory authority.
Similarly, the Committee has decided that a judge should recuse himself or herself where a spouse has a supervisory role in a state agency. In Fla. JEAC Op. 90-23, the Committee advised that a judge should not preside over “any case over which your spouse has supervisory authority” as the district program administrator of the Department of Health & Rehabilitative Services, in which position the judge’s spouse supervised attorneys. In another opinion, Fla. JEAC Op. 93-51, the Committee found that it would be improper for the inquiring judge to undertake an assignment into the dependency division of the court where his wife was employed by the Department of Health & Rehabilitative Services as the managing attorney for dependency. Although the wife’s duties were almost completely administrative, attorneys appearing in court would be under the judge’s wife’s chain of command. Cf. Fla. JEAC Op. 97-25 (judge assigned to family division was not required to automatically recuse himself in all cases where a party is represented by Legal Aid where wife was an attorney employed by Legal Aid working in the housing benefits section).
Here, although the inquiring judge states that the prosecutor who will be covering the felony arraignments is supervised by the chief assistant, and not the inquiring judge’s spouse, it remains true that the spouse is the supervisor of that county’s State Attorney’s Office, and that the chief assistant would logically fall under the spouse’s chain of command. Even if the spouse may not be involved in the direct supervision of the attorneys appearing for the felony arraignments and has a limited caseload, as in opinion 01-05, it is clear that the spouse “is the boss” of that county’s State Attorney’s Office. Consistent with the reasoning in Committee opinions 01-05 and 10-09, and the standards set forth in Canons 3E (1)(d)(ii) and 2A, the appearance of impropriety created when the presiding judge’s spouse is in a position of authority over that county’s State Attorney’s office militates in favor of a blanket disqualification from all felony arraignments in that county for the inquiring judge.
In reaching this opinion, the Committee expressly recedes from Fla. JEAC Ops. 77-12 and 77-4.
Fla. Code of Jud. Conduct: Canons 2A, 3E, and Application of The Code of Judicial Conduct.
Fla. JEAC Ops. 10-09, 08-06 n.2, 01-05, 97-25, 97-8, 93-51, 90-23, 84-24, 77-12, 77-4.
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 Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law. The 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: Patricia E. Lowry, Esquire, Chair, Judicial Ethics Advisory Committee, Squire, Sanders & Dempsey (US) LLP, 777 South Flagler Drive, Suite 1900 West, West Palm Beach, Florida 33401.
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa, Patricia E. Lowry, Esquire, 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)