October 13, 1992
You have asked whether you can hear certain cases involving violation of community control in juvenile court.
You state you are a former chief assistant public defender who had supervisory responsibility for assistant public defenders assigned to juvenile cases.
Further, an issue has arisen regarding juveniles who were placed on community control while being represented by an assistant public defender who was under your supervision. You as whether in instances when you had no direct involvement with the representation of the juvenile in the prior proceeding, you may hear violations of community control proceedings based upon alleged violation of community control that occurred subsequent to your departure from the Public Defender's Office.
The applicable provision of the Code is Canon 3C(1) - a judge should disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned. Also, the commentary to 3C(1) applies - "a judge formerly employed by a governmental agency, however, shall disqualify himself in a proceeding if his impartiality might reasonably be questioned because of such association."
Given that the violation hearings are essentially new charges or cases and you had no direct involvement with prior representation of the juveniles and you have no knowledge of the juveniles that came from your prior employment, the majority of the Committee believes that your disqualification is not required by the Code. The given facts do not indicate a situation of personal bias, prejudice or personal knowledge of relevant evidentiary facts. However, disclosure of you prior employment may be required when appropriate.
Two members of the Committee believe that prior opinions 91-17 and 77-11 apply. In 91-17, the Committee opined that a former assistant public defender could not preside over cases which were in the public defender's office when the inquiring judge was employed in that office. In opinion 77-11, the committee found a judge should excuse himself in all cases which were in his or her law firm prior to the time the judge assumed the bench. They believe the better practice would be for you to not hear any case which was in the public defender's office at the time you assumed the bench regardless of your involvement to avoid any appearance of impropriety.
Also, you have inquired whether you and your wife can donate one week's use of your beach house to a non-profit organization that works to prevent drug or alcohol abuse.
The Committee unanimously agrees that Canon 5B permits the proposed activity. However, in prior Committee opinion 75-11, the Committee suggested that the judge not use the title "Judge" but use "Mr. and Mrs." in any news release or other publicity.
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).
With regards, I remain,
Yours very truly,
Jere Tolton, Chairman
Committee on Standards of Conduct Governing Judges
cc: All Committee Members
Participating members: Judges Tolton, Green, Levy, Booth, Dell, Doughtie, Goldstein, Farina, Rushing and Clarke, Esq.
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
Judson Orrick, Managing Editor, The Florida Bar
Brooke S. Kennerly, Executive Director, Judicial Qualifications Commission.
Hon. Walter K. Stapleton, Chairman, Ethics Advisory panel of the Judicial Conference of the United States .
Cynthia Grey, Director, American Judicature Society
Ms. Jean Underhill, Librarian, Broward County Law Library
Mr. Robert Wallace, Librarian, Dade County Law Library
Ms. Joan D. Cannon, Librarian, Supreme Court of Florida
William D. Wilkinson, Court Administrator, Lee County
Hon. Thomas H. Barkdull, Jr. , Third District Court of Appeal
Lynda Glyman, Esq. Center for Professional Responsibility, American Bar Association
Hon. Charles McClure, Chief Judge, Second Judicial Circuit
Office of State Court Administrator, Legal Affairs &Education