May 29, 1996
Bailiff also a process server
Re: Committee on Standards of Conduct Governing Judges
Your inquiry dated March 29, 1996
Your bailiff is a licensed process server and has been for more that 20 years. The bailiff serves process on his own time, separate and apart from his duties as bailiff. The bailiff's clients are almost all civil trial lawyers. You have been assigned to the felony division since taking the bench, but you have been informed that you may be transferred to the civil division next January. You inquire whether it would violate the Canons for you to employ your bailiff under these circumstances or whether you should merely prohibit your bailiff from action as process server on cases assigned to you.
All nine responding members agree that it would not necessarily violate the Canons for you to employ a bailiff who also acts as a process server on his own time. Canon 3E states "[a] judge shall disqualify himself or herself I a proceeding in which the judge's impartiality might be reasonably questioned..." Four of the responding members think that you would be required to disqualify yourself in cases assigned to you where your bailiff was employed by one of the attorneys as a process server. Your impartiality could reasonably be questioned in a particular case where your bailiff was employed by one of the attorneys to serve process in the case. A fifth member also agrees that you must disqualify yourself in cases where your bailiff was employed as a process server, provided that your bailiff is able to determine which judge the cases is assigned to prior to service of process. Therefore, it may be vest or you to ask your bailiff not to work as a process server in cases assigned to you.
The four remaining members believe that there is no need for a blanket recusal ia all cases assigned to you in which your bailiff was employed as a process server. One member stated: "disputes over service of process are few and far between. In the event such a dispute arises in a particular case, [you] could then recuse [yourself] as to that issue." Stated another: "I do not believe I would go so far as to say that a judge would be in violation of the canons and subject to sanctions if the judge presided over a case in which a bailiff, who is assigned by the sheriff to work in that judge's court, had been a process server in a case before the judge." All four of these members suggest that you recuse yourself should a dispute over service of process arise. Further, tow of these four members agree with that statement that it may be best for you to ask your bailiff not to work as a process server in cases assigned to you.
None of the responding members thought that you would have to disqualify yourself where your bailiff was employed by attorneys to serve process in cases not assigned to you.
Finally, under Canon 3F, you may be able to have the attorneys and the parties waive the disqualification after disclosing to them that your bailiff worked for one of the attorneys as a process server in the case.
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 judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions issued by the committee. Petition of the Committee on Standards of Conduct for Judges, 327 So.2d 5 (Fla.1976).
Oliver L. Green, Jr.
Chairman, Committee on Standards of Conduct Governing Judges
cc: All Committee Members
Office of the State Courts Administrator
(name of judge deleted from this copy)
Participating Members: Judges Dell, Doughtie, Green, L. Kahn, Patterson, Rushing, Silverman, Tolton and Attorney Novicki