SUBJECT: Should a judge who is, or plans to be
a candidate for judicial appointment recuse
himself from cases before him in which
a member of the JNC is involved?
The inquiring judge has previously applied for nomination to the district court of appeal and intends to reapply if another seat becomes vacant. He has recused himself from cases being handled by a member of the Judicial Nominating Commission. The judge states he feels "more comfortable recusing on this attorney's cases during the pendency of her term on the Judicial Nominating Commission in order to avoid the appearance of any impropriety." Nevertheless, he asks for an opinion of the Committee as to whether recusal is appropriate.
Under Canon 3E(1), a judge is "disqualified" in a proceeding in which the judge's impartiality might reasonably be questioned. This Canon, by its very nature, requires case-by-case decisions. The Code does not disqualify a potential candidate for judicial appointment from all cases in which a member of the Judicial Nominating Commission is involved. The inquiring judge must determine whether disqualification is appropriate on a case-by-case basis. One Committee member states that if the inquiring judge feels more comfortable not hearing this attorney's cases, "he has already answered the question. He should disqualify himself."
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).
Dated the 23rd day of June, 1997.
Charles J. Kahn, Jr.
Chairman, Committee on Standards of Conduct Governing Judges
Participation Members: Judges Cardonne,Dell, Green, C. Kahn, L. Kahn, Patterson, Rushing, Silverman, Smith, Tolton and Attorney Novicki
cc: All Committee Members
Justice Charles T. Wells
Office of the State Courts Administrator
(name of judge deleted from this copy)