FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2009-02
Date of Issue: February 17, 2009

ISSUE

Whether the inquiring judge may require DUI probationers to pay for and attend a victim impact panel course where the course is presented by Mothers Against Drunk Drivers and where the fee paid to MADD will help fund its operations.

ANSWER: Yes.

FACTS

It has been suggested to the inquiring judge that judges presiding over DUI cases within the county require DUI probationers to attend a victim impact panel [VIP] course presented by Mothers Against Drunk Drivers [MADD].  The VIP course is a sentencing tool whereby DUI offenders are presented with the consequences of drunk driving by way of classroom presentations from individuals who have lost loved ones or have been impacted by a driving-while- impaired crime.  According to the inquiring judge, the cost of the course would be set on a sliding scale of up to $40.00 and those funds would be paid directly to MADD and would help fund its work in the county.

DISCUSSION

The courts have ruled that special conditions of probation may be imposed on a criminal defendant where the conditions reasonably relate to the defendant's present criminal conduct or future criminality, or pertain to conduct which is itself criminal.  See, e.g., Brock v. State, 688 So. 2d 909 (Fla. 1997); Biller v. State, 618 So. 2d 734 (Fla. 1993).  This committee makes no determination whether, as a matter of substantive law, a DUI offense probationer can be required to attend and complete a VIP course.  In determining the ethical propriety of requiring a probationer to do so, the committee believes that there is a significant distinction between ordering a defendant to "complete a VIP course" and ordering a defendant to "complete a VIP course presented by MADD."  In the first instance, the court order reflects a judge's determination that the defendant's completion of the course, based on the contents of the course, would serve a valid sentencing purpose.  This special condition of probation would be analogous to a court order requiring a litigant to submit to psychological counseling even though the order might ultimately result in the litigant paying a private entity for such counseling.

            By contrast, a court order requiring a DUI probationer to complete a MADD-sponsored VIP course could well be perceived as lending the prestige of the judicial office to advance the interests of MADD.  This committee has previously cautioned judges against lending the prestige of the judicial office to further the interest of advocacy groups such as MADD.  See, e.g., JEAC Op. 06-17 (judge may participate in panel discussion on the problem of underage drinking sponsored by MADD provided the event is not a fund raiser and would not risk portraying the judge as a public supporter of the organization).  The fact that MADD may be the only entity presenting a VIP course in a particular county does not alter this committee's conclusion. A judge's sentencing options should not be limited solely because only one organization in a county has sought to provide this particular program.  Of course, should other entities be willing to present a court-approved VIP course, then the probationer should be given the opportunity to choose between the providers.

            We also caution that the sentencing judge must ensure that the program's costs are reasonable and that the primary purpose of the course is to serve legitimate sentencing goals. Otherwise, the court's imposition of this special condition of probation might create the appearance that the judge is using the judicial office for the purpose of raising money for MADD.  See, e.g., JEAC OP. 87-6 (judge may not, as a condition of probation, require defendant to contribute a sum certain to a charitable organization because doing so would create the appearance that the judge was using the judicial office for the purpose of raising funds for a charity in contravention of Canon 5B2, now Canon 5C(3)(b)(iii)).

One member of the committee dissents, with the following comments: The majority finds a “significant distinction” between ordering a defendant to “complete a VIP course” and ordering a defendant to “complete a VIP course presented by MADD,” and acknowledges that the latter language could well be perceived as lending the prestige of the judicial office to advance the interests of MADD – a well-known advocacy organization. This distinction is too ephemeral to exempt the inquiring judge from the ethical dilemma. First, the inquiry specifically asks the committee’s opinion about a suggestion whereby “each DUI probationer [would] be required to attend a victim impact panel course [VIP] presented by . . . MADD at a sliding cost of up to $40 per person. Those funds would be paid directly to MADD and would be used to fund their work in our county.” The direct answer to the inquiry is “No.” Judges should not lend the prestige of the judicial office to promote the private interests of another – and certainly not an advocacy group – and certainly not by dipping into the pockets of a defendant over whom the judge exerts the threat and power of incarceration. Second, the committee is unaware of any other entity offering a victim impact panel course. Thus, the practical effect of this is that the defendant will have to attend the MADD-sponsored VIP. Thus, the majority’s response does not solve the inquiring judge’s concerns. If the inquiry stated that some of the costs may inure to the benefit of other activities of the VIP provider, even though the cost of the VIP program is reasonably related to the actual expenses incurred in maintaining it, then it would pass the de minimis test. However, the inquiry specifically states that the cost of the program funds the advocacy group’s other activities in the county. And that is precisely the problem.

REFERENCES

See Brock v. State, 688 So. 2d 909 (Fla. 1997); Biller v. State, 618 So. 2d 734 (Fla. 1993).  Fla. Code Jud. Conduct, Canons 5B2 now Canon 5C(3(b)(iii).; Fla. JEAC Op. 06‑17; Fla. JEAC Op. 87-6.

_____________

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 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. See 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. See Id.

The opinions of this Committee express no view on whether any proposed conduct of an inquiring judge is consistent with the substantive law which governs any proceeding over which the inquiring judge may preside.  This Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with the issue of whether the proposed conduct violates a provision of that Code.

For further information, contact: Judge C. McFerrin Smith, III, Chair, Judicial Ethics Advisory Committee, 101 N. Alabama Avenue, Suite 437, Deland, FL 32724.

Participating Members:
Participating Members: Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge T. Michael Jones, Patricia E. Lowry, Esquire, Judge C. McFerrin Smith, III, Judge Richard R. Townsend, Judge Dorothy Vaccaro.


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
Inquiring Judge (Name of inquiring judge deleted from this copy)