FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2019-13
Date of Issue: April 5, 2019

ISSUES

1. Whether circumstances have changed from when Fla. JEAC op. 00-03 was issued so that a judge must now use the form provided by DCF when reporting instances of child abuse, neglect, or abandonment that are brought to the judge's attention, pursuant to section 39.201, Florida Statutes (2019).

ANSWER: No.

2. May a judge make inquiries of any kind, such as the names of children, to complete the mandatory reporting requirements of section 39.201?

ANSWER: No.

3. May a judge summarize allegations of abuse, abandonment, or neglect in making such a report?

ANSWER: Yes, subject to compliance with Florida Code of Judicial Conduct Canon 2A and chapter 39 of the Florida Statutes.

4. Whether the answer to the third issue is different if the allegations are made in court documents or in a hearing or trial.

ANSWER: No.

5. Whether a judge who is assigned a case based upon a report that the judge made to DCF must disclose to the parties that he or she made the report.

ANSWER: No.

6. Whether mandatory reporting under section 39.201 by a judge creates a legally sufficient basis for the reporting judge to be disqualified from a case.

ANSWER: Yes.

7. Whether mandatory reporting under section 39.201 is a permitted ex parte communication under Canon 3B(7)(e).

ANSWER: Yes. However, a judge must not engage in investigatory ex parte communications.

 

FACTS

During a recent educational presentation, one of the speakers suggested that judges must report child neglect, abuse, or abandonment using a reporting form provided by the Department of Children and Families. This form, which was attached to the inquiring judge's letter, requests information from professionally mandated reporters. The form requests detailed information about the reporter and the victims, and asks the reporter to answer the following questions about the incident:

WHAT happened?

Description of injuries/threat of harm:

WHEN and WHERE did the incident occur?

Additional Addresses (e.g. day-care, school)

Where will the victim be for the next 24 hours?

Does anyone in the household have any disabilities?

Are there any dangers to a protective investigator?

FOR ADULT VICTIMS ONLY: Describe how the adult victim's ability to care for or protect self is impaired.

The form also asks for information about other individuals who might be aware of the neglect, abuse, or abandonment.

It is not clear from the inquiring judge's letter who instructed those attending new judge school to use the DCF form. Nevertheless, the inquiring judge reports that this instruction has set off a "lively discussion among . . . judges," culminating in the submission of these inquiries reflecting concerns expressed by several judges regarding issues of judicial ethics associated with reporting these matters. The inquiring judge has asked that these questions concerning judicial ethics be answered before an upcoming collaborative judicial training seminar presented by the Office of State Court Administration and DCF regarding how to identify and report abuse, neglect, or abandonment allegations.

 

DISCUSSION

The JEAC is only authorized to provide advice regarding the ethics of contemplated action by inquiring judges. In order to provide a meaningful background for discussing the issues of judicial ethics involved here, we will mention certain statutory provisions. If a judge "knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected," he or she must report the abuse, abandonment, or neglect to DCF "in the manner prescribed in [section 39.201(2)]." See § 39.201(1)(a); see also Fla. Code of Jud. Conduct, Canon 2A ("A judge shall respect and comply with the law . . . ."). Contrary to the instruction that was reported above, there is no statutory requirement that a judge use a form provided by DCF, a point that this committee has made before: "Section 39.201 does not require the judge to use the form provided by the Department of Children and Family Services." See Fla. JEAC Op. 00-03. Section 39.201(2)(a) provides that "reports may be made on the single statewide toll free number or via fax, web-based chat, or web-based report." A report made pursuant to this statute is a permissible ex parte communication. See Fla. Code of Jud. Conduct, Canon 3B(7)(e) ("A judge may initiate or consider any ex parte communications when expressly authorized by law to do so."). Once a judge has made his or her report in compliance with section 39.201(2)(a), however that report is made, he or she has discharged both the statutory and ethical duty to report. See § 39.201(1)(a); Fla. Code of Jud. Conduct, Canon 2A.

The inquiring judge has indicated that some judges fax arrest reports from first appearance hearings or pleadings to DCF, while others summarize the allegations in their reports. The inquiry raises the concern of whether providing a summary of the allegations to DCF constitutes making a judgment on what allegations rise to abuse, neglect, or abandonment, so that it is not simply reporting that allegations have been made. Again, section 39.201 does not prescribe which form the report should be made in, and we do not believe that choosing a particular form to submit a report to DCF raises an ethical quandary. Once the judge has made the report pursuant to section 39.201, it is then "the sole responsibility of the Department of Children and Family Services to conduct all necessary investigations." See Fla. JEAC Op. 00-03. DCF's investigation, however it may proceed, is not a matter that touches upon the Florida Code of Judicial Conduct. Thus, we do not perceive any appreciable circumstances that would warrant our reconsideration of the guidance we provided in our opinion in Fla. JEAC Op. 00-03.

The inquiry raises the concern that a report void of meaningful details would make it difficult for DCF to investigate the matter. That may be. However, the statute only authorizes a judge to make a report of what he or she has learned; it does not authorize a judge to utilize the power of the court to engage in an independent investigation-in the latter instance, the prohibition against ex parte communications would be applicable: "[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 proceedings . . ." Fla. Code of Jud. Conduct, Canon 3B(7); cf. Albert v. Rogers, 57 So. 3d 233, 236 (Fla. 4th DCA 2011) ("By initiating communication with the children's school administration and independently investigating the facts, the trial judge abandoned his role as a neutral arbiter of the dispute."). Attempting to gather information beyond that which may organically arise in the course of a proceeding would assuredly require the reporting judge "to conduct extensive inquiries of various people, possibly including the child, by way of ex-parte communications." See Fla. JEAC Op. 00-03. "Such an inquiry would place the judge in an unwarranted adversarial position . . ." Id. While Canon 3B(7)(e) permits a judge to initiate ex parte communications when expressly authorized by law to do so, no portion of chapter 39 provides authorization to judges to initiate such communications for the purpose of investigating a potential instance of abuse.

The inquiring judge has asked whether compliance with section 39.201 mandates disqualification of a judge whose report is the basis for a case that is assigned to the judge. We discern two ways this issue could arise: on the motion of a party; or on the judge's own motion. If a party moves to disqualify the judge on the basis that he or she made the underlying report to DCF and that report concerns the party or the party's case, the judge must disqualify him or herself if the motion complies with the requirements of Florida Rule of Judicial Administration 2.330(c) and (d) and the allegations in the motion would meet the standard of disqualification. Depending upon the manner in which the information came before the reporting judge, we believe the reporting judge's "impartiality might reasonably be questioned" in most instances. See Florida Code of Jud. Conduct Canon 3E(1).

If a reporting judge is assigned to a case and he or she learns (or recalls) that the case was based upon an investigation from the judge's prior report, the judge is not legally required to disclose that he or she filed the report. The confidentiality of abuse reporters is protected by statute. See § 39.202(5). Given the generality of the inquiring judge's inquiry, we are hesitant to broach the issue of whether that statutory privilege of confidentiality impacts a judge's obligation to "disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification." See Florida Code of Jud. Conduct Canon 3E(1). We would note, however, that Florida Rule of Judicial Administration rule 2.330(i) permits a judge "to enter an order of disqualification on the judge's own initiative." If the particular circumstances of the judge's underlying report would warrant his or her disqualification, it would be prudent for the judge to simply enter an order of disqualification. For example, if a judge received direct knowledge in the course of a proceeding that prompted the filing of a report to DCF concerning a party, and that same party were to come before that judge in a criminal case that came about as a result of DCF's investigation, such a circumstance would very likely warrant an order of disqualification. See Florida Code of Jud. Conduct Canon 3E(1).

 

REFERENCES

§ 39.201, Fla. Stat. (2019)
§ 39.202, Fla. Stat. (2019)
Fla. R. Admin. P. 2.330
Albert v. Rogers, 57 So. 3d 233, 236 (Fla. 4th DCA 2011)
Fla. Code Jud. Conduct, Canon 2A
Fla. Code Jud. Conduct, Canon 3B
Fla. Code Jud. Conduct, Canon 3E
Fla. JEAC Op. 00-03

_____________


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 to 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 of 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 whether the proposed conduct violates a provision of that Code.

For further information, contact Judge James A. Edwards, Judicial Ethics Advisory Committee Chair, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, FL 32114.

Participating Members:
Judge Michael Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Judge David Green, Mark Herron, Esquire, Judge Jeffrey T. Kuntz, Judge Matthew C. Lucas, Judge Michael Raiden, and Charles Reynolds, Esquire.


All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady, Justice Liaison
John A Tomasino, Clerk of Supreme Court
All Committee Members
Executive Director of the Judicial Qualifications Committee
Office of the State Courts Administrator