No Room At The Judge’s Home

A judge may not rent a room to a non-related person who is subject to community control, according to a recent opinion of the Florida Judicial Ethics Advisory Committee. The committee expressed the following concerns:

Discussion of the issue requires a basic description of “communitycontrol.”  Community control means a form of intensive, supervisedcustody upon an offender in the community, including surveillance onweekends and holidays, administered by Department of Correctionsprobation officers with restricted caseloads…Community control is an individualized program in whichthe freedom of an offender is restricted within the community, home,or noninstitutional residential placement, and specific sanctions areimposed and enforced.  Id.  For an offender placed into communitycontrol, a sentencing court shall require intensive supervision andsurveillance, which may include but is not limited to: (1) specifiedcontact with the probation officer; (2) confinement to an agreed-upon residenceduring hours away from employment and public service activities; (3)mandatory public service; (4) supervision by the Department ofCorrections by means of an electronic monitoring device or system; and(5) the standard conditions of probation…

If a judge rented a room in the judge’s home to a non-relatedindividual who is on community control, we reasonably can foresee thatthe judge could become a witness to the individual’s conduct.  Thejudge possibly would observe whether the individual is complying with,or violating, the terms of community control.  The judge possibly wouldhave contact with the probation officers supervising the individual’scommunity control.  The judge also would have a financial interest inrent which may compete with the individual’s requirement to paysupervision fees and other monetary conditions.

As a result, the judge potentially could be placed in problematic situations:

• If a judge witnesses the individual violate community control, thejudge “must not initiate the communication of information to asentencing judge or a probation or corrections officer.”  Canon 2B,Comment, Fla. Code Jud. Conduct.  The judge may only provide suchinformation to such persons in response to a formal request.  Id.

• If probation officers seek information from the judge, theprobation officers may feel influenced by the judge’s judicial officeand the judge’s financial interest in rent in evaluating theinformation which the judge provides.

• If the state accuses the individual of violating communitycontrol, the individual may call the judge as a witness in defenseagainst the alleged violation.

• If the judge witnessed the individual violating community control,the state may call the judge as a witness in the prosecution of theviolation.

• Even though “[a] judge may . . . testify when properly summoned,”“a lawyer who regularly appears before the judge may be placed in theawkward position of cross-examining the judge.”  Canon 2B, Comment,Fla. Code Jud. Conduct.

In all of these situations, the judge’s personal credibility and,indirectly, that of the judge’s judicial office, could be an issue. Thus, a judge who potentially could be placed in these situations byrenting a room in the judge’s home to a non-related individual who ison community control likely would violate Canons 2A, 2B, 5A, and5D(1)(a) of the Code of Judicial Conduct.

The committee opines that the result would be the same whether the judge sat in a civil or criminal assignment. (Mike Frisch)