Note: Opinion 2010-25 recedes from this opinion
March 28, 1989
Opinion No. 89/5
Interest in bank
Your inquiry stems fro the ownership of stock in a bank by you, your wife, your daughter (your daughter is not a member of your household) and her husband. The questions you have posed are as follows:
1. Does the Code of Judicial Conduct require that I disqualify myself in dissolution of marriage proceedings, enforcement of support proceedings and other such actions, under circumstances where the trial court may be called upon to determine or assign responsibility and/or enforce the payment of a liability from one or both of the party litigants to the Bank when the Bank is not itself a party litigant or participant in the judicial proceeding before the court?
2. Does the fact of my ownership of stock in the Bank constitute a "financial interest in the subject matter in controversy" (or in a party to the proceeding) when the Bank is not a party litigant or participant in the proceeding, but may be advantaged or disadvantaged incidentally by the outcome of the proceeding by reason of a debtor-creditor relationship between one or more of the litigants and the Bank?
3. Is my stock ownership in the Bank the legal equivalent of the "similar proprietary interest" referred to in Canon 3C(3)(c)(iii) as that term is used in the Code of Judicial Conduct or is the ownership of such bank stock considered to be a dissimilar proprietary interest to those referred in the subject Canon?
4. If the Code of Judicial Conduct requires that I disqualify myself in all domestic relations actions before my court in which one or both of the parties are indebted to the Bank, would the need or requirement for disqualification continue to exist if my wife and I sell or dispose of our stock ownership in the Bank while my daughter and son-in-law, who are not members of my household, continue to hold stock in such Bank?
5. If my ownership of stock in the Bank does not require my disqualification under the provision of Canon 3C of the Code of Judicial Conduct, are there any other provisions of the Code which require that I disqualify myself from the trial or handling of such domestic relations cases where a party is indebted to the Bank?
6. If the Code of Judicial Conduct disqualifies me from presiding over a dissolution of marriage or enforcement of support action where the trial judge will be called upon to make a decision with respect to the determination of, or enforcement of, the responsibility for the payment by one or both or the party litigants of indebtedness to the Bank, would such circumstance also require that I disqualify myself and refrain from presiding in any dissolution of marriage action or proceeding where the party litigants, by mutual stipulation, have requested the court to approve and make a part of the final judgment a separation and property settlement agreement which fixes responsibility for the payment of the indebtedness due by one or both of the parties to the bank?
The last paragraph of your inquiry describes the practice you have been following:
Until such time as I can receive the benefit of the Committee's guidance on this matter, I have determined that I will not preside in any dissolution of marriage or domestic relations case which requires that I enter an order enforcing the payment of, or determining the responsibility for the payment of financial obligations of a party to the Bank unless the parties and their counsel agree in writing (after a disclosure of my ownership interest and that of my family in the Bank) that I preside over the controversy and render a decision notwithstanding any possible conflicts of interest. Because this procedure will entail some inconvenience and possible expense and delay to litigants indebted to the Bank, I am naturally desirous of having your help and assistance in resolving this matter as soon as reasonably possible.
Five members of the Committee find that the course you have followed is appropriate and perhaps the safest.
One member of the Committee, who concurs in the view that the technique you have been observing offers a resolution to the concerns has also stated as follows:
I do not believe disclosure is mandated by the Code in every case. Canon 3C(1)(c) states that "a Judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned" and particularly when the Judge has a financial interest that could be "substantially affected" by the outcome of the proceeding. It does not seem reasonable to me that every time the Judge in domestic relations cases enters an order enforcing payment or determines responsibility for payment to the bank, the Judge and his wife's financial interest in the bank is "substantially affected." I believe it depends on the amount involved in every case. Also it may depend on the percentage of the total bank stock owned by the Judge and his family. Moreover, the bank is not a party in the cited cases.
Disclosure is the same as an offer to recuse or disqualify. Frequent cases of disclosure would cause Canon 5C(3) to come into play. Then the Judge and his wife may be required to divest themselves of the bank stock because of frequent disqualification.
This member has also observed that:
If the Judge and his wife dispose of the bank stock, and his daughter and son-in-law do not, I believe the Code does not require disclosure unless the matter in controversy is such that the Judge's ruling can reasonably be said to substantially affect his daughter's financial interest. Canon 3C(1)(d)(iii).
In sum, a majority of the Committee's members endorse the practice you have been following which appears to satisfy Canon 3 generally and 3D specifically.
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 So2d 5 (Fla. 1976).
Richard H. Frank, Chairman
Committee on Standards of Conduct Governing Judges
cc: All Committee Members
Participating Members: Judges Green, Tolton, Booth, Dell, Doughtie,Frank, Simons, Shutter, Goldstein, and Clarke, Esquire.
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
Brooke S. Kennerly, Executive Director, Judicial Qualifications Commission.
Hon. Walter K. Stapleton, 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
Mr. Richard Kuhn, Court Administrator, Lee County
Hon. Thomas H . Barkdull , Jr ., Third District Court of Appeal
Ms. Georgeanne Marsh, Center for Professional Responsibility, American Bar Association