July 7, 1994

(Opinion 94-28
(Recusal when chief
(assistant state attorney is
(opposing candidate


PERSONAL AND CONFIDENTIAL

RE: Committee on Standards of Conduct Governing Judges
Your inquiry dated May 26, 1994

Dear Judge

You have requested an opinion from our committee concerning the following situation: You are the sole county judge for your county. An assistant state attorney who is the chief assistant in charge of the State Attorney's office in your county has announced her candidacy for county judge. She functions primarily as a supervisor but she does sign informations and files an occasional written motion. You personally fee that you could be fair to the interests of the State of florida without disqualifying yourself, however, you feel that there may be an appearance of impropriety when you preside over cases involving your opponent. A majority of our committee members feel that you should not necessarily disqualify yourself in all cases in which this assistant state attorney appears in you court. You should follow the rule of necessity. There may be cases where disqualification would result in an injustice either to the defendant or the State. For example, a bond hearing should probably not be continued or delayed because this could result in injustice to a defendant. Several committee members point out that a lawyer or litigant should not be able to voluntarily undertake an activity and thereby automatically cause recusal of a judge. Any problems could be eliminated by transferring the assistant state attorney to another county.

All of our committee members responding that it is not necessary for you to disqualify yourself from all criminal cases simply because the assistant state attorney supervises other assistants that appear before you. Also, you could continue to preside over cases where the assistant state attorney simply signs informations or motions.

The 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 issued by the committee. Petition of the Committee on Standards of Conduct for Judges, 327 So.2d 5 (Fla.1976).

Very truly yours,

 

Nath C. Doughtie, Chairman
Committee on Standards of Conduct Governing Judges

NCD/pds

cc: All Committee Members
Office of the Courts Administrator (name of judge deleted from this copy)

Participating members: Judges Doughtie, Farina , Goldstein, Green, Kahn, Rushing, Taylor, Tolton and Edwards, Esq.