FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2021-18
Date of Issue: November 3, 2021

ISSUES

1. Must a judge who is assigned to a felony criminal division recuse himself/herself in all criminal cases because the judge's spouse is employed as an administrative assistant at the State Attorney's office prosecuting the cases over which the judge presides?

ANSWER: No.

2. Whether the judge must disclose in every criminal case that the judge's spouse is employed as an administrative assistant at the State Attorney's office prosecuting the cases over which the judge presides?

ANSWER: No.

3. Must the judge recuse himself/herself when the judge's spouse has notarized an information/indictment in the case over which the judge will be presiding?

ANSWER: No.

4. Must the judge disclose to the parties involved in felony criminal cases that appear before him/her that his/her spouse who works as an administrative assistant in the State Attorney's office has notarized an information/indictment in the case over which the judge will be presiding?

ANSWER: Yes.

5. Must the judge recuse/disqualify himself/herself from presiding in sex offender/predator failure to register cases where the underlying sex offense convictions that formed the basis of the registration requirement were initially charged by the inquiring judge when he/she was an assistant state attorney before taking the Bench?

ANSWER: No.

6. Must the judge disclose to the parties in such a case that he/she made the charging decision in the sex offense case that formed the basis of the registration requirement?

ANSWER: Yes.

FACTS

The inquiring judge is currently assigned to preside over felony criminal cases. The judge's spouse is employed as a supervising administrative assistant at the State Attorney's office in the county where the judge presides. The judge's spouse works specifically for the prosecutor who makes charging decisions and handles presentments before the grand jury as well as indictments. The judge's spouse, as the supervising administrative assistant, routinely notarizes circuit criminal information and indictments in the county in which the judge presides. The judge's spouse does not make any executive decisions regarding the filing of the charging documents, but performs the administrative function of notarizing the documents for the attorney/decision maker.

In addition, for seven years prior to the judge taking the Bench, the judge was an assistant state attorney in the county over which he/she now presides and made virtually all of the charging decisions regarding sex crimes submitted for prosecution to the State Attorney's office. Although the judge engaged in significant investigations on some of these cases before making the charging decisions, he/she did not prosecute such cases, nor did he/she supervise any attorneys who did.

As a judge assigned to preside over felony criminal cases, the judge is now assigned sex offender/predator failure to register cases where the underlying sex offense conviction that forms the basis for the registration requirement is a case that was initially charged by the inquiring judge.

 

DISCUSSION

Canon 3E provides, in pertinent part:

(1) a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceedings;

(b) the judge served as a lawyer or was the lower court judge in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it;

(c) the judge knows that he or she individually . . . , or the judge's spouse . . . has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding.

Issues 1-4: Spouse Related Issues

Issues 1 and 3: Whether Disqualification is Required

The employment of a judge's spouse or other relatives can create an ethical violation for the judge if the employment is sufficiently involved or related to the judge's particular court or its operation. As this Committee recognized in Fla. JEAC Op. 02-15, “the result depends upon the relationship of the employing entity to the judge and the spouse's degree of participation.”

A judge is not disqualified merely because the judge's relative is employed by the State Attorney's office (Fla. JEAC Op. 77-12) or the Public Defender's office (Fla. JEAC Op. 77-4). However, this Committee has opined that a judge is subject to disqualification if the judge's relative is the Public Defender. See Fla. JEAC Op. 01-05.

Similarly, this Committee has rendered opinions that the judge should recuse himself or herself where a spouse has a supervisory role in a state agency. See Fla. JEAC Op. 90-23(judge's spouse was the district program administrator of the Department of Health and Rehabilitative Services and supervised attorneys appearing before the judge); Fla. JEAC Op. 93-51(judge's spouse was employed by the Department of Health and Rehabilitative Services as the managing attorney for dependency where dependency attorneys were under the spouse's chain of command).

From the facts presented by the inquiring judge, it does not appear that the judge's spouse works in a supervisory capacity over lawyers who would appear on cases in the judge's division, and his/her involvement in any case is merely notarizing a supervisor's signature on a charging document. As such, disqualification would not be required under these circumstances.

However, it should be noted that if the judge's spouse gains pertinent information concerning any such case and communicates the information to the judge, this would likely lead to a different result.

The Committee believes that recusal or disqualification is not required under the circumstances described by the inquiring judge.

Issues 2 and 4: Whether Disclosure is Required

The judge also inquires whether disclosure would be appropriate.

The Commentary to Canon 3E(1) provides, in pertinent part:

A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.

The Committee is of the opinion that the spouse's mere employment with the State Attorney's office does not need to be disclosed unless the judge believes that his/her impartiality might reasonably be questioned.

As to the circumstance where the spouse has notarized an indictment or information that is before the judge, the Committee believes that disclosure would be appropriate. Even though the spouse serves in an administrative capacity by notarizing charging documents and does not make any charging decisions, disclosure would be required because the spouse would be technically considered “directly or indirectly” involved in the case pending before the judge. See Fla. JEAC Op. 18-26.

Issues 5 and 6: Issues Related to the Judge Being a Former Prosecutor

Issue 5: Whether Disqualification is Required

The next issue is whether the judge should recuse/disqualify himself/herself from presiding over sex offender/predator failure to register cases where the underlying sex offense conviction that forms the basis of the registration requirement was initially chargedby the inquiring judge when he/she was an assistant state attorney.

It should be noted that Canon 3E(1)(b) provides that “a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where (b) the judge served as a lawyer . . . in the matter in controversy. . . .” (Emphasis added).

The facts provided suggests that the inquiring judge, when employed by the State Attorney's office made the charging decisions, but did not prosecute the cases or supervise the attorneys who did. The inquiring judge investigated many of these cases by interviewing witnesses, consulting with law enforcement, and seeking search warrants. However, after making the charging decision, he/she had no further involvement or responsibility in the case.

When applying the plain reading of Canon 3E(1)(b), the inquiring judge did not serve as a lawyer in the matter in controversy, as the matter in controversy is a failure to register charge and not the original sexual offense. That being said, if the judge's investigation before making the charging decision has caused the judge to develop a personal bias or prejudice concerning a particular party, or the judge has personal knowledge of disputed evidentiary facts related to the pending charges, disqualification would be required.

The Committee does not believe that recusal is necessary or required in the circumstances provided by the inquiring judge.

Issue 6: Whether Disclosure is Required

The Committee believes that the judge's involvement in making the charging decisions in the underlying sex cases makes disclosure necessary. As we said in Fla. JEAC Op. 12-02, “[o]ur Supreme Court has made clear that different standards should govern for disqualification and disclosure." (citing In re Frank, 753 So. 2d 1228, 1239 (Fla. 2000)). The Frank court explained as follows:

[T]he standard for disclosure is lower. In other words, a judge should disclose information in circumstances even where disqualification may not be required. This view is supported by several decisions from other jurisdictions. See O'Neill v. Thibodeaux, 709 So. 2d 962, 967-68 (La.Ct.App.1998) (finding that trial judge correctly disclosed that he occasionally played cards with one of the parties, even though the judge was not required to disqualify himself from presiding over the case on that basis); Collier v. Griffith, 1 No. 01-A-01-9109-CV00339, 1992 WL 44893 at *4-*5 (Tenn.Ct.App. March 11, 1992) (analyzing comment to Canon 3 of the Code of Judicial Conduct and stating that "[g]iven the seminal importance of impartiality, both in fact and in appearance, we find that judges should disclose any information that the parties or their lawyers might consider relevant to the disqualification issue").

Likewise, “a judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.” Comment to Rule 3E(1) of the Fla. Code of Jud. Conduct (emphasis added).

 

CONCLUSION

In conclusion, the judge's spouse's employment with the State Attorney's office in the county in which the judge presides does not prevent the judge from presiding over felony criminal cases in that county, nor does it require disclosure. The spouse's notarization alone of charging documents in cases that come before the judge should be disclosed as the judge's spouse would be technically considered directly or indirectly involved in that case. Such notarization alone would not call for recusal. If the judge's spouse shares any information with the judge concerning a specific case, recusal would be in order.

The judge is not required to recuse himself/herself from a failure to register case where the judge made the charging decision relating to the sex crimes that formed the basis of the registration requirement. However, if the judge developed a personal bias or prejudice concerning the defendant as a result of his/her investigation in determining whether to charge the defendant with an offense, he/she should recuse. Nonetheless, the judge should disclose that he/she made the charging decision in the underlying sex offense case.

 

REFERENCES

In Re: Frank, 753 So. 2d 1228, 1239 (Fla. 2000).
Fla. Code Jud. Conduct, Canon 3E(1)(a)(b)(c)
Commentary to Fla. Code Jud. Conduct, Canon 3E(1).
Fla. JEAC Op. 18-26, 12-02, 02-15, 01-05, 93-51, 90-23, 77-12, and 77-4.

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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 futher information, contact Judge Nina Ashenafi-Richardson, Chair of the Judicial Ethics Advisory Committee, 301 S. Monroe Street, Room 265-B, Tallahassee, FL 32301 or JEAC@flcourts.org.

Participating Members:
Judge Michael Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Judge David Green, Mark Herron, Esquire, Judge Jeffrey T. Kuntz, Judge Matthew C. Lucas, Judge Michael Raiden, and Charles Reynolds, Esquire.

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)
Chief Justice Charles T. Canady, Justice Liaison
John A Tomasino, Supreme Court Clerk
All Committee Members
Alexander J. Williams, General Counsel of the J.Q.C.
Melissa Hamilton, Staff Counsel