FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2007-19
Date of Issue: December 5, 2007

ISSUES

(1) Whether a judge may review sworn arrest reports and other probable cause documents and make a preliminary probable cause finding prior to a defendant’s first appearance hearing.

ANSWER: Yes.

(2)  Whether a judge may enter his or her preliminary probable cause finding on a final nonadversarial probable cause determination form prior to a defendant’s first appearance hearing.

ANSWER: No.

FACTS

The Inquiring Judge, when handling felony first appearance hearings, wishes to conclude them in a timely and efficient manner.  The current practice in the Inquiring Judge’s jurisdiction is to review the sworn arrest reports and other available probable cause documents prior to the first appearance hearing and to make a preliminary finding as to whether probable cause exists.  This preliminary finding is entered on a final nonadversarial probable cause determination form.  The Inquiring Judge asks whether there would be any impropriety in reviewing these documents prior to the first appearance hearing, making a preliminary finding, and entering that preliminary finding onto a final nonadversary probable cause determination form.  The Inquiring Judge emphasizes that entries on this form are not final until the entire form is filled out and signed by the judge at the first appearance hearing, after the parties have had an opportunity to object and to make arguments regarding whether the arrest documents allege sufficient facts to establish probable cause.  The Inquiring Judge is concerned that making a preliminary probable cause determination outside of the defendant’s presence may violate the Canons or other ethical obligations.

 

DISCUSSION

Canon 3B(7) explicitly provides that “[a] judge shall not initiate, permit, or consider ex parte communications” except under certain circumstances, which are listed as exceptions.  For the purposes of this opinion, the Committee assumes that sworn arrest reports and other probable cause documents provided to the court by the State qualify as ex parte communications.  One of the exceptions to the prohibition against ex parte communication addressed in Canon 3B(7), is when a judge is “expressly authorized by law to do so.” Canon 3B(7)(e), Fla. Code  Jud. Conduct.  Since there is an exception to the prohibition against ex parte communications when authorized by Florida law, we must determine whether Florida law authorizes the first appearance judge to review the arrest documents and to make preliminary findings ex parte.

Florida law expressly allows judges to base their nonadversarial probable cause determinations on a review of sworn arrest reports and other probable cause documents.  See Fla. R. Crim. P. 3.133(a)(3) (stating that the judge’s findings leading to nonadversary probable cause determinations “may be based on sworn complaint, affidavit, deposition under oath, or, if necessary, on testimony under oath properly recorded”); see also Evans v. Seagrave, 922 So. 2d 318, 321 (Fla. 1st DCA 2006) (holding that “[f]indings under Rule 3.133(a) may be based on ex parte sworn complaints, other affidavits, or depositions under oath, and need not (but may also be) based on competent evidence”).  Thus, it is clear that Florida law permits a judge to review documents that qualify as ex parte communications in making a probable cause determination at a defendant’s first appearance hearing.  We see no difference whether the first appearance judge reviews the documents before or after he or she enters the courtroom, as long as the review is confined to the documents provided to the State, defense, and trial court for that purpose.

While the first appearance judge may review the probable cause documents provided by the State to the court and the defense prior to the hearing, Florida law requires that a nonadversary probable cause determination be made at the time of the first appearance hearing, not before.  Fla. R. Crim. P. 3.133(a)(1). 

The Inquiring Judge also asks whether there would be any impropriety in reviewing these documents prior to the first appearance hearing, making a preliminary finding, and entering that preliminary finding onto a final non- adversary probable cause determination form. The Inquiring Judge emphasizes that the entries on this form do not constitute a final determination, and are subject to change at the first appearance hearing.   While this practice likely complies with Florida Rule of Criminal Procedure 3.133(a)(1), and does not violate Canon 3, the Committee’s concern is that the preliminary finding made by the trial court prior to the first appearance hearing, without the opportunity for input from the state and the defense, may violate Canon 2.  See, e.g., Fla. JEAC Op. 99-10 (confirming that although a judge’s actions are in compliance with the letter of Canon 3, those same actions may violate the spirit of Canon 2).

Canon 2 provides that “[a] Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge’s Activities.”  This prohibition “applies to both the professional and personal conduct of a judge.”  Commentary to Canon 2A, Fla. Code Jud. Conduct.  As described above, the instant inquiry does not appear to involve actual impropriety in the form of a violation of a law or rule.  However, whether the Inquiring Judge’s current practice creates the appearance of impropriety is a closer question.

“The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.”  Commentary to Canon 2A, Fla. Code Jud. Conduct.  The Committee concludes that the conduct described in the instant inquiry creates the appearance of impropriety.  By making a preliminary probable cause determination outside the presence of the accused without the benefit of argument by the State or the defense, and placing that preliminary finding on a final nonadversary probable cause determination form, the Inquiring Judge creates the perception that the trial court has prejudged the merits of the cause, and that the arguments of counsel are superfluous.  While the reality may differ from the perception, it is the perception that controls.

However, two members of the Committee believe the procedure followed by the judge would not create "the appearance of impropriety" in that no reasonable person, with knowledge of the relevant circumstances, would perceive that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.  These members assert that there is nothing improper about a judge reviewing paperwork, making a preliminary determination as to probable cause on a form as long as this preliminary determination is not released to anyone and is not a final determination as to probable cause until the judge has conducted the hearing and given appropriate consideration to the matters presented there.

REFERENCES

Fla. R. Crim. P. 3.133(a)(1), (3)

Canons 2, 3B(7), Commentary to Canon 2A, Code of Judicial Conduct.

Fla. JEAC Opinion 99-10.

Evans v. Seagrave, 922 So. 2d 318 (Fla. 1st DCA 2006).

_____________

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 the judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and 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 Qualifications 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 Lisa Davidson, Chair, Judicial Ethics Advisory Committee, The Moore Justice  Center, 2825 Judge Fran Jamieson Way, Viera, FL 32940.

Participating Members:
Judge Robert T. Benton, II, Judge Lisa Davidson, Judge Kerry I. Evander,  Judge T. Michael Jones, Judge Michael Raiden, Judge Jose Rodriguez,  Judge Leslie B. Rothenberg, Judge McFerrin Smith, Judge Richard R. Townsend, Judge Dorothy Vaccaro, Marjorie Gadarian Graham, Esquire, & Patricia E. Lowry, Esquire.


Copies furnished to:
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Inquiring Judge (Name of inquiring judge deleted from this copy)