January 30, 1984

Opinion No. 84/2
Spouse's employment in pretrial intervention program

Dear Judge

This is in response to your inquiry of November 29, 1983. You want to know if you can handle criminal cases if your wife is employed as an assistant to the director of a pretrial intervention program.

Of the eight members of the Committee on Standards of Conduct Governing Judges who responded to your inquiry seven felt this situation would present the appearance of impropriety. Section 944.025(2) F.S. provides that the consent of four individuals is required before a defendant may be received into a pretrial intervention program. Those individuals are: (1) the administrator of the program (presumably the individual whom the judge's wife will assist), (2) the victim, (3) the judge, and (4) the state attorney. The discretion of any or all of these individuals to accept or reject a proffered defendant appears to be absolute, without provision for judicial review. See Cleveland v. State, 417 So.2d 653 (Fla. 1982). This situation could give the appearance of impropriety if a defendant, who had been rejected from the program were to point to the relationship of the judge's wife to the program and the relationship of the judge to the system which provides the area in which the defendant must now meet his accusers.

One member felt that despite Section 944.025(2) F.S., in actual practice trial court judges do not see the day-to-day workings of pretrial intervention. While they are aware that some defendants are diverted into pretrial intervention they are seldom aware of trying a case in which the defendant was offered or rejected from pretrial intervention. Other than reducing their caseload, the fact of pretrial intervention does not come to their attention. While this member recognized that a defendant who had been rejected from the program could point out the relationship between the judge and an employee of the program, he felt the idea of impropriety arising from that relationship to be too tenuous and something of a non sequitur.

Yours truly,

James T. Carlisle
Chairman, Committee on Standards of
Conduct Governing Judges

cc: All Committee Members

All reference to the inquiring judge is deleted from the copies sent to the following individuals.

Mr. Sid White, Clerk of the Supreme Court of Florida
Linda Yates, Managing Editor, The Florida Bar Journal
Mark Hulsey, Esq., Chairman, Judicial Qualifications Commission.
Hon. Howard T. Markey, Chairman, Ethics Advisory Panel of the Judicial Conference of the United States .
Jeffrey M. Shaman, Esquire, Director, Center for Judicial Conduct Organizations
Ms. Jean Underhill, Librarian, Broward County Law Library
Mr. Robert Wallace, Librarian, Dade County Law Library
Mr. Brian Polley, Librarian, Supreme Court of Florida

Participating members: Judges Booth, Carlisle, Dell, Green, Grube, Hewitt, Letts, and Attorney Samuel J. Powers, Jr.