FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2002-04
Date of Issue: March 12, 2002

CHIEF JUDGE RESPONDING TO APPLICATIONS FOR CLEMENCY OR REQUESTS FROM THE FLORIDA PAROLE COMMISSION

ISSUES

May the Chief Judge of a circuit respond in writing to applications for clemency filed by convicted defendants with the office of executive clemency or to requests from the Florida Parole Commission for written objections to parole release for specific inmates when the Chief Judge does not have personal knowledge of the cases?

ANSWER: Yes. The Code of Judicial Conduct does not prohibit a Chief Judge from responding as long as the Chief Judge makes clear that the recommendation is based solely upon a review of the court file.

FACTS

The inquiring Chief Judge receives frequent requests to support or object, in writing, to applications for clemency filed by convicted defendants with the Office of Executive Clemency. Further, the Chief Judge frequently receives requests from the Florida Parole Commission for written objections to parole release for specified defendants. This Chief Judge is concerned because this Chief Judge was not the sentencing judge and has no personal knowledge of the cases. The Chief Judge writes that the only response that could be given would be based upon an independent review of the court file. The Chief Judge receives these requests because the sentencing judge is no longer on the bench.

DISCUSSION

We believe that the only canon which may have significance is Canon 2. Canon 2 of the Code of Judicial Conduct is entitled, "A Judge Shall Avoid Impropriety And the Appearance of Impropriety in All of the Judge's Activities." Canon 2A provides:

A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

Here, Florida law contemplates that a Chief Judge will respond or direct that a circuit judge respond to inquiries from the Parole Commission or the Clemency Board.

Chapter 947 describes the duties of the Parole Commission. Section 947.16(4), Florida Statutes, discusses inmates who are eligible for release and the procedure that must be followed before they can be released. Subsections 947.16(4)(d)-(f) provide that in the case of retained jurisdiction, a notice must be sent to the sentencing judge, the Chief Judge or a circuit judge selected by the Chief Judge for a response. The judge or Chief Judge can then elect to respond or not respond. If the Chief Judge or designated circuit judge determines a response is appropriate, Section 947.16(d), mandates prescribed time periods for response.

Similarly, section 940.03 contemplates notification of the trial judge in connection with requests for executive clemency. In our view, the Chief Judge may respond when the trial judge is not available.

After reviewing the Code of Judicial Conduct, we find no prohibition against the Chief Judge responding. The response is contemplated by statute and a Chief Judge is bound by Canon 3 to discharge the duties of office. However, the Chief Judge must state that the Chief Judge was not the trial judge, and the recommendation is based solely upon a review of the court file. One member of the committee adds that the Chief Judge should forward these requests to the trial judge, assuming the trial judge is still serving.

REFERENCES

§940.3, §947.16(4)(c)-(g), Florida Statutes.

Florida Code of Judicial Conduct: Canon 2.

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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 Scott J. Silverman, Chairman, Judicial Ethics Advisory Committee, The Richard E. Gerstein Justice Building, 1351 NW 12th St #712, Miami, FL 33125

Participating Members:Judges Cardonne, Kahn, Davidson, Kotey, Levy, Townsend, Silverman, Smith, Swartz, and Thompson; and attorney Graham

Copies furnished to:

Chief Justice Charles T. Wells
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)