FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2018-13
Date of Issue: June 8, 2018

ISSUE

Whether a judge married to a public defender may preside over the criminal mental health, drug, and veteran diversion courts where the judge’s spouse is responsible for the supervision of the public defender’s assigned to represent defendants in the respective diversion courts.

ANSWER

This Committee recommends that the Inquiring Judge not preside over cases where the Inquiring Judge’s spouse is the attorney of record, or cases which the spouse supervises. As long as there is compliance with CanonĀ  2B, 3E(1) and 3E(1)(d), the Inquiring Judge may preside over a criminal docket, first appearance, plea hearings, or cover for colleagues where the Inquiring Judge’s spouse is not the attorney of record or in a supervisory position over the assigned assistant public defenders. The Inquiring Judge may also refer cases to an appropriate diversionary court presided by another judge, and accept cases returned to the trial division from a diversionary court.

FACTS

The Inquiring judge asks about the propriety of presiding over cases involving the Inquiring Judge’s spouse who is an assistant public defender (APD), and a supervisor over the criminal mental health, drug, and veteran diversion courts. The judge’s spouse also supervises the APDs assigned cases in these diversion courts, and travels with them daily throughout the circuit representing defendants and attending the diversionary courts within the same jurisdiction as the Inquiring Judge. The Inquiring Judge asks the following questions:

  1. I know that I cannot preside over any criminal matter in which my [spouse] is physically representing the defendant, whether . . . the APD of record, or merely covering or supervising one of [the] colleagues, correct?
  2. May I preside over any diversionary court, that would have other APDs physically representing the defendants in court on any particular day, if my [spouse] previously filed a notice of appearance, memo, motion or the like on behalf of [the PD’s] office in the case?   Does that answer change if [my spouse] does not ever physically appear or file anything in the case, but is the APD’s supervisor back in office or if my [spouse] spoke with or represented the client previously in the same or any prior matter?   Does either of those answers change if I am regularly assigned to the bench in that court, or just covering for one of my colleagues on a temporary basis?
  3. May I preside over a regular criminal docket, that is not a diversionary court, and therefore not supervised by my [spouse], but of course, where other APDs would regularly appear?  If so, may I refer cases from there to a diversionary court that my [spouse] supervises with another judge? If so, may I accept a case back that was rejected or removed from the diversionary court by that other judge?
  4. May I preside over first appearances or changes of plea or any other stage of criminal proceedings that are not a regular docket when covering for one of my colleagues on a temporary, or semi-recurring basis?

DISCUSSION

The following Canons are applicable to this Inquiry:

Canon 2A, which states, in pertinent part: “A judge ... shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

Canon 2A’s commentary further explains: “A judge must avoid all impropriety and the appearance of impropriety.”

Canon 2B, which states, in pertinent part: “A judge shall not allow family ... relationships to influence the judge’s judicial conduct or judgment.”

Canon 3B(5), which states, in pertinent part: “A judge shall perform judicial duties without bias . . .”; and Canon 3E(1)(d)(ii), which states, in pertinent part: “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might be questioned, including but not limited to instances where . . . the judge’s spouse . . . is acting as a lawyer in the proceeding . . .

  1. In response to the first question, the Inquiring Judge may not preside over any criminal matter in which the APD spouse is representing the defendant, or is the APD of record. If the Inquiring Judge were to preside over a defendant’s case assigned to the judge’s public defender spouse, the inquiring judge may create the appearance of impropriety and bias, and the judge’s impartiality questioned. See Fla. JEAC Op. 11-21.
  2. In response to question two, the Inquiring Judge states that the spouse oversees the daily operations of the circuit’s criminal mental health, drug, and veteran diversion courts for the circuit, and supervises the APD’s assigned to those courts. Therefore, it follows that these diversion court APDs fall under the spouse’s “chain of command.” The Inquiring Judge should not preside in any case over which the Inquiring Judge’s spouse has supervisory authority. Consistent with the reasoning in Florida Judicial Ethics Advisory Committee Opinions 11-21 (judge advised against sitting on cases for which the judge’s spouse had supervisory responsibility in the state attorney’s office), 10-09, 01-05 and the standards set forth in Canons 3E (1)(d)(ii) and 2A, the appearance of impropriety created when the presiding judge’s spouse is in a position of supervisory authority militates in favor of the Inquiring Judge’s recusal from criminal mental health, drug, and veteran diversion courts.

This analysis has been similarly applied where a spouse has a supervisory role in a state agency that comes before the judge. In Florida Judicial Ethics Advisory Committee Opinion 90-23, the Committee advised that a judge should not preside over “any case over which your spouse has supervisory authority” as the district program administrator of the Department of Health & Rehabilitative Services, in which position the judge’s spouse supervised attorneys. In Florida Judicial Ethics Advisory Committee Opinion 93-51, the Committee found that it would be improper for the inquiring judge to undertake an assignment in the dependency division of the court where his wife was employed by the Department of Health & Rehabilitative Services as the managing attorney for dependency. Although the wife’s duties were almost completely administrative, attorneys appearing in court would be under the judge’s wife’s “chain of command.” In keeping with these opinions, this Committee recommends that the Inquiring Judge not preside over cases where the judge’s spouse supervises the APDs assigned to the criminal mental health, drug, and veteran diversion courts.

3. & 4. In response to the third and fourth questions, as long as there is compliance with Canon 2B, 3E(1), and 3E(1)(d), the Inquiring Judge may preside over a criminal docket, first appearance, plea hearings, or cover for colleagues where the Inquiring Judge’s spouse is not the attorney of record or in a supervisory position over the APDs. The Inquiring Judge may also refer cases to an appropriate diversionary court presided over by another judge, and accept cases returned to the trial division from diversionary court.

 

REFERENCES

Fla. Code Jud. Conduct, Canons 2A, 2B, 3B(5), 3E(1), 3E(1)(d), 3E(1)(d)(ii).
Fla. JEAC Ops. 11-21, 10-09, 01-05, 93-51, 90-23.

_____________


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

For further information, contact Judge Miguel de la O, Chair, Judicial Ethics Advisory Committee, Eleventh Circuit, Miami-Dade County Courthouse, 73 W. Flagler Street, Room 1407, Miami, FL 33130.

Participating Members:
Judge Michael F. Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Mark Herron, Esquire, Judge Barbara Lagoa, Judge Spencer D. Levine, Judge K. Douglas Henderson, Patricia E. Lowry, Esquire, and Judge Michael Raiden.


All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady, Justice Liaison
John A Tomasino, Clerk of Supreme Court
All Committee Members
Executive Director of the Judicial Qualifications Committee
Office of the State Courts Administrator