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?
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,
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.
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)