Opinion Number: 98-30
Date of Issue: November 23, 1998
WHETHER A JUDGE MAY FACILITATE BATTERERS' GROUPS IN HIS SPOUSE'S PROGRAM ?
WHETHER A JUDGE'S SPOUSE MAY OWN AND OPERATE A DOMESTIC VIOLENCE PROGRAM
IN THE CIRCUIT IN WHICH THE JUDGE PRESIDES?
Whether a judge may be facilitator for a batterers' intervention program
within the same county and circuit in which the county judge presides?
ANSWER: No.
Whether a judge's spouse's batterers' intervention program can remain
on a list of certified programs from which batterers can choose to attend
if they are court ordered to do so or if they are required to attend pursuant
to their enrollment in pretrial intervention? ANSWER: Yes.
The inquiring judge was recently elected to the county court bench. His
spouse runs a state certified batterers' intervention program. The judge-elect
is a state certified facilitator and facilitates classes on weekends and
evenings within the program. The program is operated within the same county
and circuit in which the county judge will preside. 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
and respondent may choose which program from the list he/she wishes to attend.
The inquiring judge asks whether he may continue to facilitate batterers'
groups in his spouse's programs. He also asks whether his spouse's program
can remain on the list of certified programs from which batterers may choose.
Canon 5A(1) states that a judge shall conduct all of the judge's extra-judicial activities so that they do not cast reasonable doubt on the judge's capacity to act impartially as a judge. A judge facilitating batterers' intervention groups would certainly cast reasonable doubt on the judge's capacity to act impartially as a judge in any judicial matter where there are allegations of domestic violence.
In addition, there are a multitude of potential conflicts for a judge
if he or she is involved in rendering counseling, education, treatment or
anything of this nature with parties in any court case. One example of a
conflict that could occur in domestic violence cases is that batterers'
intervention programs may frequently be involved in violation of probation
hearings or contempt hearings regarding whether a defendant or respondent
fulfilled his or her court ordered obligation to attend and complete the
program. Consequently, the inquiring judge may find that if he is a facilitator
in such a program, he (individually) and/or other members of the program
that he facilitates for are involved as witnesses. The other potential conflicts
are too numerous to enumerate.
Canons 5D(1)(a) & (b) also preclude the inquiring judge from facilitating
batterers' intervention groups. A judge shall not engage in financial and
business dealings that may reasonably be perceived to exploit the judge's
judicial position or involve the judge in frequent transactions or continuing
business relationships with persons likely to come before the court on which
the judge serves. Defendants and respondents are generally required to pay
for their participation in these programs. The judge would be financially
aiding the program by being a facilitator. The judge as a facilitator in
a batterers' intervention program would be having business dealings with
defendants or respondents who would be required by the Court to attend and
complete these programs. Canon 5D(4) requires a judge to manage his or her
financial interests to minimize the number of cases in which the judge is
disqualified. Depending on which division the judge is assigned and the
type of cases encompassed by that division, the judge could be required
to recuse himself from a substantial number of cases.
In Opinion 90-14 the Committee held that a
judge could not be a paid consultant to a profit making enterprise. As a paid
consultant the judge would evaluate the enterprise's drug rehabilitation and
related activities outside the county in which the judge sat. The judge in that
opinion had even agreed that he would refrain from this activity if the enterprise
moved into the county where he presided.
In Opinion 87-12 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,
Canon 2B, 5C(1)[now numbered as Canon 5D(1) and 5D(2)], and Canon 5C(2)[now
Canon 5D(2) and 5D(3)].
The Committee does not perceive a conflict per se with the Judicial Code
if the inquiring judge's spouse owns and operates a batterers' intervention
program in the county where the judge is sitting. There are 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.
In Opinion 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, 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 that 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.
In the present case, the inquiring judge should recuse himself in cases
assigned to him in which the defendant or respondent in a domestic violence
case attended the program operated by the judge's spouse.
In conclusion, a judge may not act as a facilitator in a domestic violence
program owned by his spouse. A domestic violence program operated by a judge's
spouse may remain on the list of certified programs from which batterers
may choose, as long as the actual selection of the program is made by the
defendant or respondent from a list of approved programs provided by the
probation office. The inquiring judge, however, must recuse himself from
cases that are in his division in which defendants or respondents choose
to attend his spouse's program.
Florida Code of Judicial Conduct Canons 2B, 5A(1) 5D(1)(a) & (b), 5D(2),
5D(3), and 5D(4).
Florida Judicial Ethics Advisory Committee Opinions 84-2,
87-8, 87-12,
and 90-14.
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. & Harriette V. Moore Justice Center,
2825 Judge Fran Jamieson Way, Viera, Florida, 32940-8006.
Participating Members: Judges Dell, C. Kahn, L. Kahn, 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)