August 16, 1996

Opinion 96-15

Son is legal advisor to Sheriff
and full-time deputy
Canon 3E

Re: Committee on Standards of Conduct Governing Judges
Your inquiry dated June 11, 1996


You are assigned to the criminal division for Levy, Gilcrist and Alachua counties. Your assignment in the criminal division will continue at least until July, 1997. Your son is an attorney who was recently hired by the Levy County Sheriff's department. Your son will serve in a dual role as a legal advisor to the Sheriff and as a full-time deputy sheriff. Your son will not appear in court as an attorney. You inquire whether you are now precluded from hearing any criminal cases made by the Sheriff's department or only cases in which your son has participated. You inquire whether you are precluded from hearing cases made by other law enforcement agencies.

Canon 3E governs this inquiry. Specifically, Canon 3E(1)(d) state that a judge shall disqualify himself where

(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 person:

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

(ii) is acting as a lawyer in the proceeding;

(iii) is known by the judge to have more than a de minimis interest that could be substantially affected by the proceeding;

(iv) is to the judge's knowledge likely to be a material witness in the proceeding.



The commentary to Canon 3E(1) provides that "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. [Editor's note: quotation mark is in the original.]

The nine responding members unanimously agree that you would be disqualified in any case in which your son participates in either of his dual roles with the Sheriff's department. The nine responding members do not think the parties can waive this disqualification under section 3F. As to cases brought by the Sheriff where your son is not involved, the nine responding members do not think that you must disqualify yourself. See Opinion 93-13 in which we held that a part-time traffic magistrate need not recuse herself in cases involving the Sheriff's office, even though her husband was a deputy sheriff. Finally, the nine responding members believe that you do not have to disqualify yourself in cases not involving the Sheriff's department or inform the parties that your son is employed by the Sheriff.

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


Enclosure
cc: All Committee Members
Office of the State Courts Administrator
(name of judge deleted from this copy)


Participating Members: Judges Dell, Green, C. Kahn, L. Kahn, Patterson, Rushing, Silverman, Tolton and Attorney Novicki