FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2012-33
Date of Issue: October 23, 2012

ISSUE

Whether a judge who serves in the circuit criminal division is required to disclose that the judge’s spouse is employed as a “sworn legal counsel” to the local sheriff’s office.

ANSWER: Yes, but only in cases where the sheriff’s office is the investigating or arresting agency, or in cases in which the judge is aware of some other involvement by the sheriff’s office and the judge believes that the parties or their lawyers may consider the circumstances of the employment relevant to the issue of disqualification.

FACTS

The inquiring judge serves in the circuit criminal division.  The judge’s spouse is employed as a “sworn legal counsel” to the local sheriff’s office.  The spouse is a salaried employee and handles primarily issues regarding labor and employment.  However, the judge’s spouse can be called upon to render legal advice on any issue as needed by the sheriff.  The judge’s spouse does not appear in criminal court.   

DISCUSSION

Canon 3E(1) of the Florida Code of Judicial Conduct provides in pertinent part:

A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:

. . .

(c) the judge knows that he or she individually or as a fiduciary, or the judge’s spouse, parent, or child wherever residing, or any other member of the judge’s family residing in the judge’s household has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding:

(d) the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) is a party to the proceeding, or an officer, director, or trustee of a party . . .

The Commentary to Canon 3E(1) says in pertinent part:

Under this rule, a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply.  . . .

A judge shall disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.  The fact that the judge conveys this information does not automatically require the judge to be disqualified upon a request by either party, but the issue should be resolved on a case-by-case basis. 

(Emphasis added.)

The Committee has addressed the questions of disqualification and disclosure a number of times over the years.  In reaching our opinion here we have focused on three prior opinions of the Committee, and have followed the guidance of the Supreme Court of Florida in In re Frank, 753 So. 2d 1228, 1239 (Fla. 2000), as well as the Commentary to Canon 3E(1).

In Fla. JEAC Op. 12-02, the Committee advised that a county court judge whose child works in the state attorney’s office in the same county is not automatically disqualified in all criminal cases, but the judge should inform the parties that the child works for the state attorney, citing to the Commentary to Canon 3E(1).

As we said in Op. 12-02, our Supreme Court has made clear “that different standards apply for disqualification and disclosure.”  In re Frank, 753 So. 2d 1228, 1239 (Fla. 2000).  The Frank court explained that

the standard for disclosure is lower.  In other words, a judge should disclose information in circumstances even where disqualification may not be required.  This view is supported by several decisions from other jurisdictions.  See O’Neill v. Thibodeaux, 709 So. 2d 962, 967-68 (La.Ct.App.1998) (finding that trial judge correctly disclosed that he occasionally played cards with one of the parties, even though the judge was not required to disqualify himself from presiding over the case on that basis); Collier v. Griffith, 1 No. 01-A-01-9109-CV00339, 1992 WL 44893 at *4-*5 (Tenn.Ct.App. March 11, 1992) (analyzing Comment to Canon 3 of the Code of Judicial Conduct and stating that “[g]iven the seminal importance of impartiality, both in fact and in appearance, we find that judges should disclose any information that the parties or their lawyers might consider relevant to the disqualification issue”).

To like effect, Comment [5] to Rule 2.11 of the Annotated Model Code of Judicial Conduct (2d edition) says a judge “should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to the possible motion for disqualification.”  (Emphasis added.)

In Op. 12-02, the Committee concluded that because the inquiring judge’s child’s employment may entail the child’s having some involvement in a criminal case the judge is hearing – an involvement of which the judge may well be wholly unaware – the better practice is for the judge to disclose the fact that the judge’s child works for the state attorney’s office. 

After determining in Op. 12-02 that the employment of the child was a fact that the parties may consider relevant to the issue of disqualification, consistent with the Commentary we made clear that disqualification is not required solely because of the disclosure.  Rather, we advised that if a motion for disqualification is filed, the judge should carefully consider whether the motion is legally sufficient and rule on the motion as a matter of law. 

A minority of the Committee voiced disagreement in Op. 12-02.  The minority expressed that it did not agree that a bright line rule requiring disclosure was necessary.  The minority said it would be more appropriate for the Committee to advise that the judge should disclose the judge’s relationship if the judge believes that the parties or their lawyers may consider the circumstances of the employment relevant to the issue of disqualification.  The minority also relied on the Commentary in reaching its conclusion, but felt that the judge should be aware of any unique circumstance which may be relevant to the issue of disqualification.

In another pertinent opinion, Fla. JEAC Op. 07-11, the Committee advised that the fact that the inquiring judges’ family members were employed with the local sheriff’s office does not in and of itself create grounds for disqualification.  There, the Committee determined that family members have only a de minimis interest and no ownership interest in the agency since their salaries would be a tiny fraction of the overall budget of any sheriff’s agency.  As long as the family members had no direct financial interest in the outcome of the matter, disqualification was not required.

The Committee went on to say that disclosure is not necessary unless the judge believes that the judge’s impartiality might reasonably be questioned, citing to Fla. JEAC Op. 97-25 (where wife was employed by Legal Aid, advising disclosure in any case where the judge reasonably believes that any semblance of an impropriety might be perceived), and the Commentary to Canon 3E(1).  The Committee further opined in Op. 07-11 that this would appear to be the case only if the family member was directly or indirectly involved in the case pending before the judge.  The Committee did not expressly address the issue of whether the judge may not be aware of the family member’s involvement in the case. 

In Fla. JEAC Op. 03-08, we opined that the Code does not require disqualification in all criminal cases simply because the judge’s spouse is a “Child Victim Specialist” in the state attorney’s office.  Rather, we said that the Code is satisfied if the judge discloses the relationship in those cases in which there are allegations of sexual abuse to a child “so that the defendant and the state can determine whether the judge’s spouse is, or will be, involved in the case.”   Fla. JEAC Op. 03-08.  Because the judge could not say with absolute assurance that the spouse had no involvement in such cases, disclosure was required.

There, the Committee went on to say that the employment of a judge’s spouse or other relatives can create an ethical violation for the judge if the employment is sufficiently involved or related to the judge’s particular court or its operation.  Referencing Fla. JEAC Op. 02-15 (judge not disqualified from presiding over bond conferences when judge’s spouse supervised assessment officers for Pretrial Services Assessment Division who appeared before judge), the Committee noted that the result depends upon the relationship of the employing entity to the judge and the spouse’s degree of participation, and stated that inquiries of this nature are fact specific and must be resolved on a case by case basis.

Here, the inquiring judge has informed the Committee that the spouse handles primarily issues regarding labor and employment, but as “sworn legal counsel” for the sheriff’s office, can be called upon to render legal advice on any issue as needed by the sheriff.  Accordingly, and consistent with our opinion in Fla. JEAC Op. 12-02, we believe the better practice is for the judge to disclose the spouse’s employment in all cases in which the sheriff’s office is the investigating or arresting agency, or has played some other role in the case of which the judge is aware and the judge believes that the parties or their lawyer may consider the circumstances of the employment relevant to the issue of disqualification. 

We are not willing to assume that the judge will be aware of every issue upon which the judge’s spouse may have rendered legal advice.  We believe this is consistent with the Court’s reasoning in In re Frank:  “Judges must do all that is reasonably necessary to minimize the appearance of impropriety.  They must remain cognizant of the fact that even in situations where they personally believe that their judgment would not be colored, public perception may differ.”  753 So. 2d at 1240 (emphasis added). By making the disclosure, the defendant and the state can determine whether the judge’s spouse is, or will be, involved in the case.  We emphasize, however, that disqualification does not necessarily follow.    

To the extent today’s opinion is inconsistent with Fla. JEAC Op. 07-11, we recede from Fla. JEAC Op. 07-11 as to the disclosure issue only.  We believe that because the judge may not be aware of the spouse’s involvement in any given case that comes before the judge, in keeping with Fla. JEAC Ops. 12-02 and 03-08, the judge should make the disclosure in all cases in which the sheriff’s office is the investigating or arresting agency or there are other circumstances which the judge believes the parties or their lawyers might consider relevant to the question of disqualification.  

    

 

REFERENCES

In re Frank, 753 So. 2d 1228 (Fla. 2000).

Fla. Code  Jud. Conduct, Canon 3E(1); Commentary to Canon 3E (1).

Fla. JEAC Ops. 12-02, 07-11, 03-08, 02-15, 97-25.

_____________


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 which governs any proceeding over which the inquiring judge may preside. 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 the Committee Chair: Judge Jonathan D. Gerber, Chair, Judicial Ethics Advisory Committee, Fourth District Court of Appeal, 1525 Palm Beach Lakes Boulevard, West Palm Beach, Florida 33401.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jack Espinosa, Jr., Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa, Patricia E. Lowry, Esquire, Judge Michelle T. Morley, Judge Richard R. Townsend, and Judge Dorothy Vaccaro.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator