May 19, 1995
PERSONAL AND CONFIDENTIAL
(Judge Shareholder in
(Subchapter S Family Corporation
In re: Committee on Standards of Conduct Governing Judges
Your Inquiry Dated March 27, 1995
You are a shareholder in a subchapter S family corporation that may become involved in litigation against the State of Florida. You currently sit in a criminal division and inquire whether you should disclose the issues to parties or voluntarily recuse and be transferred to another division.
All eight responding member of the Committee agreed that upon review of Canon 3E, and commentary of Canon 3E, that you need not recuse yourself at this time for several reasons.
1. At present there is no action pending, only the possibility of a suit
2. Even if the action were pending with the Florida Department of Environmental Protection, the issue would be so remote that it would be unlikely that your "impartiality might reasonably be questioned" on a typical criminal case.
3. However, if a criminal case involving the Florida Department of Environmental Protection came before you after the action became pending, you should recuse yourself.
Pursuant to the commentary to Canon 3E(1), in an abundance of caution, it would seem that once litigation commences, you should disclose the status of the litigation and any information that the parties or the lawyers may consider relevant, even though you may believe there is no basis for disqualification.. It should be noted that pursuant to Opinion 93-56, "...if a judge discloses a possible conflict, then, upon Motion, the judge should recuse regardless of the legal sufficiency of the Motion."
The 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 judges, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 327 So.2d 5 (Fla. 1976).
Very truly yours,
Steve Rushing, Chairman
Committee on Standards of Conduct
CC: All Committee Members
Office of the State Courts Administrator
(Name of judge deleted from this copy)
Participating Members:Judges Doughtie, Green, Kahn, Lynch, Patterson, Rushing, Silverman and Tolton