Opinion Number: 98-29
Date of Issue: November 18, 1998
WHETHER A JUDGE MAY INDIRECTLY REFER A DEFENDANT OR RESPONDENT IN
A DOMESTIC VIOLENCE CASE TO A DOMESTIC VIOLENCE PROGRAM OWNED AND OPERATED
BY A COUNTY JUDGE AND HIS SPOUSE?
Whether a judge may indirectly refer a defendant or respondent in a domestic
violence case to a domestic violence program owned by a county judge and
his spouse, and operated within the same county and circuit in which the
county judge presides?
ANSWER: No
Whether a judge may indirectly refer a defendant or respondent in a
domestic violence case to a domestic violence program owned by a county
judge's spouse and operated within the same county and circuit in which
the county judge presides? ANSWER: Yes.
The inquiring judge asks whether it is proper for defendants in criminal
cases and respondents in domestic violence cases, pursuant to court order,
to attend a domestic violence program owned and operated by a sitting county
judge and his spouse. The program is operated within the same county and
circuit in which the county judge presides. Defendants and respondents are
referred to probation, and the probation office gives the defendants and
respondents a list of domestic violence programs to attend. The defendant
or respondent may choose which program from the list he/she wishes to attend.
The judge also asks whether the Committee's opinion would be different if
the county judge divests himself of any ownership in the domestic violence
program, but his wife continues her ownership in the program. The judge
is concerned that even under those circumstances the county judge's wife
and her employees may become witnesses in court cases as to whether the
defendant/respondent has complied with the program.
The inquiring judge does not personally select the domestic violence
program to which a defendant/respondent is referred nor do any of the judges
in the inquiring judge's circuit. Judges in the inquiring judge's circuit
refer offenders to the probation office. The probation office maintains
a list of approved programs, and the defendant or respondent in a domestic
violence case selects which program he/she wishes to attend.
It would be ethically improper for a judge to be a shareholder and/or member
of the board of directors of such a program, as explained in Opinion
87-12. In that Opinion, the Committee found a judge barred from being a
shareholder and/or member of the board of directors of a corporation designed
to provide assistance to first time cocaine users. The Committee found the ownership
to be a violation of Florida Code Jud. Conduct, Canons 2(B), 5(C)(1)[now numbered
as Canon 5(D)(1) and 5(D)(2)], and Canon 5(C)(2)[now Canon 5(D)(2) and 5(D)(3)].
In Opinion 84-3 the judge and a friend had
developed a device which would be strapped to the leg of person sentenced to
"house arrest." It would notify a computer if the person moved outside
a certain distance. The judge asked the Committee if he could enjoy the financial
fruit of his invention. Eight members of the Committee stated that the judge
could enjoy the financial fruit of his endeavors but not without problems. The
problem was best stated as follows:
Canon 4 ...encourages a judge to engage in activities to improve the
law and the administration of justice. Unquestionably, the concept of an
electronic monitoring device has great potential for improvement of our
legal/judicial/penal system. By the provisions of Canon 5C, however, the
judge must refrain from financial and business dealings which to tend to
reflect adversely on his impartiality. Will rulings in Criminal Division
cases affect whether such a device is purchased by his County of the State
and the number of units that are purchased? It appears to me that the answer
is 'yes' and that such appearance would also occur to the public at large.
That same public perception of impropriety would occur if judges in
the county judge's jurisdiction were indirectly through probation referring
defendants/respondents to a domestic violence program in which the county
judge had an ownership interest and thereby would be directly financially
benefiting.
The Committee does not perceive a conflict with the Judicial Code and the referral
of cases to the domestic violence program, if the program is owned and operated
by the judge's spouse and not the judge. There are a several opinions in which
the Committee concluded that a judge did not have to recuse himself or herself
in situations in which the judge's spouse had a financial interest in a program
or business utilized by the criminal justice system. For the judge in each case,
the Committee urged caution on the judge's part to avoid the appearance of impropriety.
See opinions 87-7 and 87-8.
In 87-8 the judge's spouse was becoming
a Florida bondsman, and he had signed a contract for employment with a bonding
company located in the counties that the judge served. The judge stated that
when setting a bond for a criminal defendant that she referred to a bond list
that established the usual or recommended bonds for every criminal offense and
that she generally followed this list unless there appeared aggravating or mitigating
circumstances. There were four major bonding companies in the counties that
she served. She stated that she would have no idea which bonding company a defendant
would select. The Committee found there was no prohibition that would require
her to refrain from setting bonds at first appearance hearings. The majority
of the Committee did state that the judge should recuse herself on any case
in which her husband had bonded the defendant. See also Opinion
84-2.
The inquiring judge expressed concern over the possibility of the judge's
spouse or employees appearing as witnesses as to whether the offender complied
with the terms of the domestic program. In such a circumstance, it would
be up to the individual judge to decide whether recusal would be necessary.
One member of the Committee commented:
...I hope that the county judge in question (obviously not the inquiring
judge) fully realizes the potential pitfalls invited by the domestic violence
program, that no doubt will be shortly owned entirely by his wife. For instance,
a county judge will attend regular meetings of circuit and county judges.
It is completely conceivable that various domestic violence programs in
the circuit would be discussed and even informally be evaluated during the
course of such meetings. The county judge in question would then become
privy to this information. The information would be of immediate economic
value to the wife, if it is improperly conveyed to the wife. I would also
note the difficulty of explaining the situation to a person actually ordered
to attend a domestic violence program and finding out after the fact that
he had attended a program owned and operated by the wife of a colleague
of the judge who sentenced him to attend
Another committee member felt that if the matter was within the jurisdiction
of the Department of Corrections that this might not be a matter for this
committee's consideration.
In conclusion, a judge may order domestic violence offenders to attend a
domestic violence program owned and operated by a judge's spouse, and not
the judge, when the actual selection of the program is made by the defendant
or respondent from a list of approved programs provided by the probation
office.
Florida Code of Judicial Conduct Canons 2(B), 5(D)(1), 5(D)(2) and 5(D)(3).
Florida Judicial Ethics Advisory Committee Opinions 84-2, 84-3, 87-7, 87-8 and 87-12.
The Judicial Ethics Advisory 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 by the Committee. Petition of
the Committee on Standards of Conduct Governing Judges, 698 So.2d 834
(Fla. 1997). However, in reviewing the recommendations of the Judicial Qualification
Commission for discipline, the Florida Supreme Court will consider conduct
in accordance with a Committee opinion as evidence of good faith. Id.
For further information, contact The Honorable Lisa D. Kahn, Chair, Judicial
Ethics Advisory Committee, Harry T. & Hariette V. Moore Justice Center,
2825 Judge Fran Jamieson Way, Viera, Florida, 32940-8006.
Participating Members: Judges Dell, C. Kahn, L. Kahn, Patterson, Rodriguez, Rushing, Smith, Swartz, Tolton and Attorney Blanton.
Copies furnished to:
Justice Charles T. Wells
All Committee Members
All Members of the J.Q.C
Office of the State Courts Administrator (Name of inquiring judge deleted
from this copy)