When A Juvenile Judge’s Child Gets Arrested

A judge assigned to a juvenile division is not required to recuse in juvenile delinquency cases if the judge’s child was arrested or charged for a crime by the State Attorney’s Office in the county where the judge presides, but the judge must disclose such facts for a reasonable period of time.

Issue

1. Must a judge who is assigned to a juvenile delinquency division recuse from all juvenile delinquency cases in his/her division if a child of the judge has been arrested in the county where the judge presides?

ANSWER:  No.

2. Must the judge disclose the arrest of his/her child to the parties in the juvenile delinquency division in which the judge presides?

ANSWER: Yes.

3. If the judge’s child is charged with a crime by the State Attorney’s Office, must the judge recuse on all juvenile delinquency cases in the juvenile division in the county where the child was charged?

ANSWER: No.

4. May the judge serve in a division where the charges are filed if there is a reassignment of the case involving the judge’s child to another circuit?

ANSWER: Yes. 

5. Must the judge disclose to the parties in a juvenile delinquency division in which the judge presides that the judge’s child has been charged with a crime and is being prosecuted by the State Attorney’s Office?

ANSWER:  Yes.

Facts

A child of a judge who presides over a juvenile delinquency division has been arrested in the county where the judge presides.  The child has yet to be charged by the State Attorney’s Office.  The inquiring judge requests an opinion on whether the judge must recuse from serving in the juvenile delinquency division.  Further, the judge inquires as to whether the judge must disclose to the parties in the juvenile delinquency division that the judge’s child has been arrested.  Finally, if charged by the State Attorney’s Office, the judge inquires whether recusal or disclosure is necessary.  If charged, the judge will be hiring legal counsel for the child and will not be utilizing the services of the Public Defender’s Office.  

Discussion

Canon 2 of the Florida Code of Judicial Conduct provides that a judge should avoid impropriety and the appearance of impropriety in all of the judge’s activities.  The Commentary to Canon 2 describes the test for appearance of impropriety as “whether the conduct would create in reasonable minds, with knowledge of all of the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.”  Canon 3E(1) requires a judge to disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific instances listed in Section 3E(1) apply.

At the time of the issuance of this opinion, the judge’s child has been arrested, but not yet charged by the State Attorney’s Office.  This Committee addressed a similar situation in Fla. JEAC Op. 2002-05.  In that opinion, a judge in a family law division was divorced and was contemplating potential litigation concerning the judge’s children.  Suit had not yet been filed.  The Committee determined that the judge’s situation was not one where the judge’s impartiality might reasonably be questioned, and that there was no requirement for a judge to disclose a personal family matter, or for a judge to disqualify himself/herself based on the judge’s personal family matter.

The facts of the current inquiry are different in that the judge presides in the division where prosecutors would make the charging decision regarding the judge’s child’s case.  The Committee believes the judge has a duty to disclose the arrest until such time as the case is no actioned or the charges resolved, because of the perception that the judge could have an incentive to not “rock the boat” with the State Attorney’s Office in the hopes of obtaining favorable treatment on the judge’s child’s case.  Further, the judge must recuse if asked to do so.  Disclosure would not be required if the State Attorney’s Office recused itself and asked the Governor to reassign the case to another state attorney.

The judge further inquires whether recusal in juvenile delinquency cases would be required if the judge’s child was charged by the State Attorney’s Office.  A judge is not required to recuse in all cases where the judge or close family member of the judge has been a party in a suit in the division in which the judge presides.  See Fla. JEAC Op. 2016-04 (Judge not required to recuse from all Engle progeny cases assigned to the judge where a member of the judge’s family brought  an Engle progeny suit against a tobacco company within the same judicial circuit, but before a different judge, even if some lawyers representing the parties in the judge’s family member’s case appear before the judge); Fla. JEAC Op. 2015-14 (Judge not required to recuse on all foreclosure cases involving the same lawyers, lenders or assignees who were involved in the judge’s personal foreclosure case in which the judge was a defendant, unless the judge determines that the judge has a personal bias or prejudice against the lawyers, lenders or assignees); Fla. JEAC Op. 2011-17 (Judge not required to recuse when attorney appearing before a judge is the spouse of an attorney representing the judge in an unrelated civil matter where the spouses are and always have been in different firms).  The question is whether a disinterested person aware of the relevant facts would reasonably question the judge’s impartiality.

The opinion most on point with the inquiry at hand, assuming that the judge’s child is charged by the State, is Fla. JEAC Op. 2017-21.  In that opinion, the brother-in-law of a general magistrate who presided over Marchman Act cases became a respondent in a Marchman Act case before another magistrate.  The attorney who regularly appeared before the inquiring magistrate was appointed to represent the magistrate’s brother-in-law.  This Committee determined that the general magistrate was not required to recuse from presiding over Marchman Act cases or cases where the court-appointed attorney who appeared before the general magistrate represented the general magistrate’s brother-in-law in a Marchman Act case before another magistrate.  However, the Committee  concluded that if the general magistrate determined that a personal bias or prejudice existed, the magistrate should recuse from cases involving the brother-in-law’s attorney. 

The inquiring judge intends to hire legal counsel to represent the judge’s child, should the child be charged.  The judge should recuse from cases where the attorney who was hired to represent the judge’s child is appearing in a case before the judge.  See JEAC Op. 1999-13 (Judge should recuse where an attorney from the firm who represents the judge, appears before the judge, because an impermissible appearance of impropriety applies to all members of the attorney’s firm); Fla. JEAC Op. 2001-17 (Judge should be disqualified from hearing cases in which one of the parties was represented by a law firm currently representing the judge’s spouse’s law firm in a malpractice action); Fla. JEAC Op. 2005-15 (Judge must recuse when lawyer and/or members of lawyer’s firm who represented judge in civil action appears before the judge); Fla. JEAC Op. 2012-37 (Judge was required to recuse from all cases involving the attorney and firm that represented the judge, judge’s mother and brother in a personal injury suit against them.

As far as disclosure if the child has been charged, this Committee in Fla. JEAC Op. 2017-21 determined that even though recusal was not required, the magistrate had a duty to disclose facts and information relevant to the parties’ consideration of whether the magistrate should be disqualified, even if the magistrate believes there is no real basis for disqualification.  As such, if the State Attorney’s Office files formal criminal charges against the judge’s child, then disclosure is warranted, and should be for a reasonable period of time during and following the conclusion of the matter.  This Committee has previously suggested that a reasonable period of time is from several months to one year, depending upon the unique facts and circumstances of the representation.  Fla. JEAC Ops. 1986-09, 1993-19, 2001-17, 2011-17, 2012-09, 2012-37 and 2016-04.

(Mike Frisch)