February 16, 1984
Opinion No. 84/3
This is in response to your inquiry of January 17th, 1984. You and a friend have developed a device which would be of interest to the criminal justice system. It consists of a small unit which is strapped to the leg of a person who has been sentenced to "house arrest." It is used in connection with the telephone in the person's home. He is required to remain within a certain distance of the telephone. If he moves out of that range, that fact is noted on a computer. Likewise, if he removes or tampers with the device that information will be transmitted to the computer.
This device is, of course, useful to the criminal justice system in that it provides a measure of confinement without the expense of housing and feeding prisoners. The use of such a device is particularly attractive in an era of federally mandated jail caps and court orders ordering the release of defendants.
You have begun to receive inquiries from other jurisdictions as to the availability of this device. If possible you would like to enjoy the financial fruits of your efforts to improve the criminal justice system. You posed the hypothetical question in which Thomas Edison was a sitting judge at the time of the invention of the light bulb. You asked the question whether Edison could have been denied his interest in General Electric, or whether Edison could have been denied his interest in General Electric, or whether the New Jersey Courthouse should go without lights.
Of the eight members of the Committee on Standards of Conduct Governing Judges who responded to your inquiry, all were generally of the opinion that you could enjoy the financial fruits of your endeavors, but not without problems. The problem was best stated by one of our members as follows:
"Canon 4...encourages a judge to engage in activities to improve the law and the administration of justice. Unquestionably, the concept of an electronic monitoring device has great potential for improvement of our legal/judicial/penal system. By the provisions of Canon 5C, however, the judge must refrain from financial and business dealings which tend to reflect adversely on his impartiality. Will his rulings in Criminal Division cases affect whether such a device is purchased by his County of the State and the number of units that are purchased? It appears to me that the answer is 'yes' and that such appearance would also occur to the public at large."
That member went on to state that he would encourage you to continue your involvement in the development and marketing of the security device, but would stress that such marketing would not be undertaken within the confines of your jurisdiction. In the alternative, he suggested if the marketing is to be undertaken within your jurisdiction you should refrain from handling any criminal division cases.
Another member stated as follows:
"...since the judge proposes that his invention be used in (the) County, where he is an important part of the criminal justice system and would have the option of sentencing a defendant to electronic incarceration, knowing that each such incarceration would ultimately inure to his financial benefit, I can see immediate problems, perhaps insurmountably ones, to his both serving as a judge and participating in profits from any type of business entity which was benefiting from sales of these devices in (that) County."
One other member simply suggested you invest in the device but avoid actively advancing sales within the judicial sphere. I am not sure how Edison would have handled the question.
James T. Carlisle
Chairman, Committee on Standards of
Conduct Governing Judges
cc: All Committee Members
All reference to the inquiring judge is deleted from the copies sent to the following individuals.
Mr. Sid White, Clerk of the Supreme Court of Florida
Linda Yates, Managing Editor, The Florida Bar Journal
Mark Hulsey, Esq., Chairman, Judicial Qualifications Commission.
Hon. Howard T. Markey, Chairman, Ethics Advisory Panel of the Judicial Conference of the United States .
Jeffrey M. Shaman, Esquire, Director, Center for Judicial Conduct Organizations
Ms. Jean Underhill, Librarian, Broward County Law Library
Mr. Robert Wallace, Librarian, Dade County Law Library
Mr. Brian Polley, Librarian, Supreme Court of Florida
Participating members: Judges Booth, Carlisle, Green, Grube, Hewitt, Letts, Tedder and Attorney Samuel J. Powers, Jr.