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?
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)