FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 2000-11
Date of Issue: June 2, 2000

WHEN A JUDGE'S SON-IN-LAW HAS ANNOUNCED THAT HE WILL RUN FOR ELECTION AGAINST THE INCUMBENT PUBLIC DEFENDER, IS THE JUDGE DISQUALIFIED FROM HEARING ANY CASES INVOLVING THE PUBLIC DEFENDER'S OFFICE?

ISSUE

When a criminal division judge's son-in-law has qualified as a candidate for election to the Office of Public Defender, is the judge required to disqualify himself from all cases involving the public defender's office or to request a transfer to a non-criminal division?

ANSWER: NO, with certain qualifications.

FACTS

The inquiring judge is assigned to the criminal justice division of the circuit court. Most of the defendants in the division are represented by the Public Defender's Office. Recently the judge's son-in-law qualified as a candidate for election to the Office of Public Defender in opposition to the incumbent public defender, who has announced his intention to run for re-election. The inquiring judge has made a disclosure in each public defender case and now asks whether he should simply request a transfer to a non-criminal justice division.

DISCUSSION

Under the Florida Code of Judicial Conduct, a judge is disqualified "in a proceeding in which the judge's impartiality might reasonably be questioned . . . ." Canon 3E(1), Florida Code of Judicial Conduct. Although none of the subsections of Canon 3E specifically covers the situation now before the Committee, Canon 3E(1)(a) provides that a judge is disqualified where "the judge has a personal bias or prejudice concerning a party or a party's lawyer. . . ."

In opinion 84-12, the inquiring judge stated that a local attorney had announced the intention to oppose the judge for re-election. The Committee unanimously stated that the inquiring judge should be disqualified in cases involving the political opponent. A majority of the Committee felt that the inquiring judge should "follow the usual avenues of disqualification on a case-by-case basis." A minority of the Committee felt that the judge would be automatically disqualified in all cases handled by the political opponent.

In opinion 93-47, the inquiring circuit judge had learned that an assistant public defender would be running against the judge the following year. The assistant public defender/candidate also had sought support and advice from the state attorney in the judge's circuit. The Committee unanimously found that the judge should disqualify himself pursuant to Canon 3. The Committee also stated, however, that the judge should work with the chief judge and the public defender in order to attempt to find an "administrative solution" to the problem. In the meantime, the judge would be able to hear and decide cases involving the political opponent when failure to hear the case would result in an injustice. In all such cases, the judge should disclose the situation.

In opinion 94-28, the sole county judge in a county discovered that the chief assistant state attorney would be a political opponent for the judge's position. The majority of the Committee felt that automatic disqualification would not be called for, but rather, the rule of necessity would control or disqualification would result in an injustice to either the defendant or the state. The Committee also noted that the problem would be eliminated were the political opponent to be transferred to the state attorney's office in another county. In cases where the political opponent did not actually appear before the judge, but merely supervised other assistants or signed motions, disqualification would not be required.

The Committee has also issued opinions in the analogous situation where lawyers practicing before the judge are involved in Judicial Qualifications Commission proceedings against the judge. In opinion 91-12, the judge learned that members of the state attorney's office would be adverse witnesses before the JQC. The Committee decided that the judge should disqualify himself from any cases handled by the particular assistant state attorney involved in the JQC proceeding. The Committee also stated that if the judge felt subjective discomfort in hearing cases involving the state attorney's office, the judge should step down voluntarily. In opinion 95-20, the inquiring judge asked whether an automatic order of disqualification would be required where a party or a party's counsel had filed a complaint against the judge with the JQC. The Committee unanimously agreed that disqualification would be called for under these facts and split on whether this disqualification would be automatic or on a case-by-case basis.

In the present case, the judge must be guided by the Code's attempt to establish an objective standard, i.e., whether the judge's impartiality could reasonably be questioned. The inquiring judge should certainly disqualify himself from any case in which the public defender is actually involved. The question of involvement by assistant public defenders is not so clear cut. If the chief judge of the circuit is able to reassign the inquiring judge to a non-criminal division, this would eliminate any possibility of impropriety, as well as any question as to the judge's impartiality. If the judge is required to remain in the criminal division, disqualification should not be automatic. Instead, the judge should continue to disclose the situation in cases in which the public defender's office is involved. Nevertheless, facts could develop that would change the resolution of this inquiry. For instance, if the public defender's office divides into factions, with one side supporting the judge's son-in-law and the other side supporting the incumbent, the judge should thereafter be disqualified. Also, individual members of the public defender's office could well become involved on one side or the other of the campaign, without the development of factions. In these cases, the judge should be disqualified on a case-by-case basis.

REFERENCES

Florida Code of Judicial Conduct Canons 3E, 3E(1), 3E(1)(a).

Florida Judicial Ethics Advisory Committee Opinions: 84-12, 91-12, 93-47, 94-28, 95-20.

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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 C. McFerrin Smith, III, Chair, Judicial Ethics Advisory Committee, 130 West New York Avenue, DeLand, Florida, 32720.

Participating Members: Graham, Attorney at Law and Judges Cardonne, C. Kahn, L. Kahn, Kotey, Levy, Rodriguez, Silverman, Smith, Swartz and Thompson.

Copies furnished to:
Justice Peggy Quince
All Committee Members
All Members of the J.Q.C.
Office of the State Courts Administrator (Name of inquiring judge deleted from this copy)