FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2002-05
Date of Issue: April 08, 2002

WHETHER A JUDGE IN A FAMILY DIVISION MUST DISCLOSE THAT HE/SHE IS DIVORCED AND MAY POTENTIALLY BE INVOLVED IN LITIGATION CONCERNING HIS/HER CHILDREN?


WHETHER A JUDGE IN A FAMILY DIVISION MUST RECUSE HIMSELF/HERSELF IN LITIGATION CONCERNING CHILDREN, WHEN THE JUDGE MAY POTENTIALLY BE INVOLVED IN SIMILAR LITIGATION?

ISSUES

 

Whether a judge in a family division must disclose that he/she is divorced and may potentially be involved in litigation concerning his/her children?

ANSWER: No.

Whether a judge in a family division must disqualify himself/herself in litigation concerning children, when the judge may potentially be involved in similar litigation?

ANSWER: No.
FACTS


The inquiring judge is a circuit judge recently assigned to the family division. A fair number of the dissolution, post-dissolution and domestic violence cases the judge hears involve issues of visitation, parental responsibility, primary residence, and issues concerning the best interests of the children. The judge is a divorced parent of minor children. The judge may be filing a post- judgment proceeding involving the former spouse and issues of parental responsibility, parental decision making, and issues related to the health, safety and welfare of the children. The judge asks whether the potential litigation must be disclosed to attorneys and pro se litigants. If the judge must disclose, the judge also asks whether he/she must necessarily disqualify.

The inquiring judge further states, "Obviously, if I hear an individual case and feel that my personal situation might influence my decision, I would voluntarily disqualify myself on my own accord."

DISCUSSION

 

"A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification." W.I. v. State, 696 So. 2d 457, 458 (Fla. 4th DCA 1997); Commentary, Canon 3E(1). A judge is not required to per se disclose personal family matters. For example, in JEAC Op. 95-15, the inquiring judge asked whether he needed to disclose the representation by an attorney regarding the custody of the judge's son, which occurred eight years previously. A majority of the Committee found that the judge was not required to disclose the past relationship.

In the present case, the Committee sees no requirement for a judge to disclose a personal family matter, or for the judge to automatically disqualify himself/herself based on the judge's personal family matter. The Committee does not find that this is a situation where the judge's impartiality might reasonably be questioned. Canon 3E(1). Clearly, if the judge's personal matter does result in litigation and if attorneys representing the judge or his former spouse appear before the judge, then disclosure or recusal is warranted. Berry v. Berry, 765 So. 2d 865 (Fla. 5th DCA 2000) (When the trial judge established his own attorney/client relationship with the attorney of a litigant appearing before the judge, the trial judge had an obligation to disclose the relationship immediately upon its creation.) See also JEAC Op. 99-13, which found that a judge must automatically recuse if his/her attorney appears before the Court, even if the parties do not request recusal.

In the present situation, the mere specter of pending child litigation does not require disclosure or recusal. It is sufficient that the inquiring judge on the judge's own motion would disqualify himself/herself if the judge thought that a decision in a case would be influenced by the judge's personal situation.

One member of the Committee notes that the disqualification standard of Canon 3E is an objective standard. The member notes that under those circumstances, the question is not simply whether the inquiring judge could be fair, but whether the judge's impartiality might reasonably be questioned. While this committee member is in full agreement with this opinion, the member wants to clarify any questions that may arise from the preceding paragraph that suggests that the judge should disqualify himself if "the judge thought that a decision in a case might be influenced by the judge's personal situation."

REFERENCES

Florida Code of Judicial Conduct Canon 3E(1).

Florida Code of Judicial Conduct Canon 3E(1), Commentary.

Florida Judicial Ethics Advisory Committee Opinions: 95-15 and 99-13.

Berry v. Berry, 765 So. 2d 865 (Fla. 5th DCA 2000).

W.I. v. State, 696 So. 2d 457 (Fla. 4th DCA 1997).

_____________

 

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 Davidson, Kahn, Kotey, Levy, Silverman, Smith, Swartz, Thompson, Townsend and Attorney Graham

Copies furnished to:
Chief 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)