FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2004-10
Date of Issue: February 25, 2004

ISSUES

Should a retired judge who presides as a senior judge from time to time resign from the board of the homeowners' association in the judge's community, where the homeowners' association is being sued by a homeowner.

ANSWER: Yes.

FACTS

The inquiring judge is a retired (senior) judge who is the vice president and member of the board of a homeowners' association in the community in which the judge resides. A homeowner in the community has filed suit against the homeowners' association in the circuit in which the senior judge sometimes presides over cases. This is the only suit which has ever been filed against the homeowners' association in the twelve years of its existence. The senior judge has never presided over civil cases, and does not do so now.

DISCUSSION

Canon 5C(3), Fla. Code Jud. Conduct, states in material part:

(3) A judge may serve as an officer, director, trustee or non-legal advisor of...[a] civic organization not conducted for profit, subject to the following limitations and the other requirements of the Code.

(a) A judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization

(I) will be involved in proceedings that would ordinarily come before the judge, or

(ii) will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.

Homeowners' associations are involved in litigation far more frequently than are individual homeowners. In Fla. JEAC Op. 81-07, the Committee on Standards of Conduct Governing Judges (the predecessor to the Judicial Ethics Advisory Committee hereinafter "the Committee") unanimously concluded that Canon 5 prohibited a judge from serving as director of a condominium association. It observed that, because of "the many adverse interests in that type of association, it...[was] likely the association would be regularly engaged in adversary proceedings before the courts."

In Fla. JEAC Op. 84-01, the Committee reaffirmed its adherence to this position, and unanimously stated that "experience has shown that the volume of litigation involving associations so far exceeds litigation arising out of individual home ownership that no realistic comparison can be made of the likelihood of judicial conflict."

In Fla. JEAC Op. 81-07, the Committee relied upon the same rationale in advising that a judge should not serve as president of a village association or on the board of directors of a townhouse association. See also Fla. JEAC Op. 02-17, in which the Judicial Ethics Advisory Committee cited approvingly to the conclusion reached in Fla. JEAC Op. 81-07.

Although the opinions identified above dealt with a judge serving on the board of a condominium association or a townhome association, the concern expressed applies equally to all homeowners' associations. Although the association on which the inquiring judge serves has not previously been involved in litigation, in the experience of this committee and previous committees, the likelihood of future litigation is high, simply because of the nature of the association.

The fact that the senior judge has not presided and does not preside over civil cases does not alter the fact that the homeowners' association is engaged in litigation before the court of which that judge is a member, and is likely in the future to be frequently involved in such litigation.

Further, for the judge to maintain his positions as an officer and board member of the homeowners' association as that entity litigates in the court of which he is a senior member creates the appearance of impropriety in violation of Canon 2 ("A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All of the Judge's Activities") of the Code of Judicial Conduct.

As a senior judge, the inquiring judge is subject to the limitations of the Code provisions identified above. See "Application of the Code of Judicial Conduct," Section B ("Retired/Senior Judge"), located in the Code of Judicial Conduct, after Canon 7.

Consequently, the inquiring judge should resign from the board of the homeowners' association and as vice-president of that organization.

REFERENCES

Canon 2, 5, and 7

Fla. Code of Jud. Conduct

Fla. JEAC Ops. 02-17, 84-01, and 81-07

_____________

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 Judge Richard R. Townsend, Acting Chair, Judicial Ethics Advisory Committee, Post Office Box 1018, Green Cove Springs, Florida 32043.

Participating Members:
Judge Robert Benton, Judge Karen Cole, Judge Lisa Davidson, Judge Phyllis Kotey, Judge Melanie May, Judge Jose Rodriguez, Judge McFerrin Smith, III, Judge Jeffrey D. Swartz, Judge Emerson R. Thompson, Jr. Judge Richard R. Townsend, Ervin Gonzalez, Esquire, and Marjorie Gadarian Graham, Esquire.


Copies furnished to:
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator
(Name of inquiring judge deleted from this copy)