SUBJECT: Can a judge issue a marriage license to a couple when
the female is a pregnant minor, and her mother is pressuring
her to have an unwanted abortion? In such a case, is the
judge obligated to report a violation of section 827.04(3)?
Would it be proper for a judge to refer the minor female to an
agency that may recommend and arrange for adoption.
The inquiring judge correctly observes that section 827.04(3), Florida Statutes (Supp. 1966), states that a male, 21 years or older, who impregnates a girl under 16 is guilty of a third-degree felony. The inquiring judge also correctly observes that section 741.0405(3), Florida Statutes (1995), allows a county judge discretion to issue a marriage license to a female under 18 and a male over 18 if the female is pregnant. The inquirer poses the following questions:
1. May a county judge exercise statutory judicial discretion for humane reasons and ignore the criminal statute, section 827.04(3), Florida Statutes, and issue a marriage license to a pregnant female age 15 and a male age 24, if the girl's parents consent and agree the judge should issue the license?
2. If the mother of the pregnant female (15) does not consent and the female testifies the mother is violently pressuring her to have an unwanted abortion, can the judge still exercise statutory judicial discretion to issue a license so a baby is not born out of wedlock and the male's willingness to assume the responsibility of marriage and fatherhood is given legal recognition?
3. Should a judge or can a judge contact the state attorney's office to report a violation of section 827.04(3), Florida Statutes, when it comes to the attention of the judge as the result of an application for a marriage license?
4. Would it be improper for a judge to intervene and refer the pregnant female to an agency such as the Children's Home Society that may recommend and arrange for the female to have the baby and place it up for adoption?
This Committee would decline to answer the first two questions. Question 1 recognizes the potential conflict between the statutes, and its proper answer would require a legal, rather that an ethical, analysis. Question 2 raises the question of the judge's authority to exercise discretion and raise potential implications of constitutional rights, including the right to privacy.
This Committee finds no provision in the Code of Judicial Conduct that would prohibit a judge form contacting the State Attorney's Office to report a violation of section 827.04(3). Another state ethics committee observed that although the Code does not require a judge to report illegal activity, neither does it prohibit such a report, and accordingly it is within the judge's sound discretion to do "as judgment and conscience dictate" Arizona Advisory Opinion 92-15. This Committee's interpretation of the Code would not obligate the judge to report a violation of section 827.04(3) when such information has come to the judge as a result of a marriage license application. See Florida Advisory Opinion 78-4 (Judge not obligated to report to the appropriate authorities a party's under reporting of income on federal income tax returns).
A clear majority of the Committee does not find any provision in the code that would prohibit a judge form counseling the pregnant girl concerning that alternative of adoption, as opposed to marriage or abortion. One member of the committee does not see it as "intervention" when a judge advises those before him with respect to social services. This same member, however, states that the judge should not make any referrals to such social services unless the issue is officially before him. One member of the committee believes that a judge should stay away from the area mentioned by inquiry number 4 because it does not encompass a judicial function.
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 7th day of July, 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, Tolton and Attorney Novicki
cc: All Committee Members
Office of the State Courts Administrator
Justice Charles T. Wells (name of judge deleted from this copy)