SUBJECT: Brother of county judge is defendant
in criminal prosecution for DUI manslaughter;
responsibility of chief judge

The chief judge of a judicial circuit requests an opinion concerning a county judge in his jurisdiction. The county judge has a brother who was recently charged with DUI, DUI manslaughter and leaving the scene of an accident with personal injury of death. The county judge in question accompanied his brother back to the scene of the accident where law enforcement had already arrived. The inquiring chief judge believes that the county judge will be called as a witness in his brother's case. Upon this factual background, the inquiring judges asks the following questions:

1. Whether or not during the pendency of his brother's criminal prosecution, does the chief judge have the affirmative ethical obligation to remove the judge from presiding in cases involving DUI/leaving the scene of an accident?

2. Whether or not the county judge individually, or on his own initiative has the ethical obligation to recuse himself from those cases.

Canon 3E governs the question of disqualification. It provides that a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned. The Canon goes on to enumerate certain circumstances in which disqualification is called for; however, none of these circumstances are present in this inquiry. Only the county judge in question may determine, by reference to his own feelings and the closeness of his involvement with his brother's case, whether his impartiality might reasonable be questioned in other cases involving similar charges against other defendants. The question of whether a judge is disqualified because of prejudice for or against a party is a legal question controlled by section 38.10, Florida Statutes (1995), and it is beyond the scope of this Committee's charge.

Accordingly, under the facts as set out by the inquiring judge, the chief judge does not have an affirmative ethical obligation to remove the county judge from cases involving DUI/leaving the scene of an accident, nor does the county judge, on his own initiative, have an immediate ethical obligation to disqualify himself from those cases. Nevertheless, the circumstances of the county judge's involvement in his brother's case may be such that his impartiality might reasonably be questioned in similar cases, and were that situation to develop, disqualification under Canon 3E would be called for. This is, however, a call to be made by the individual judge. Certainly the inquiring chief judge should counsel very closely with the county judge in question.

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 19th day of August, 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)