Spousal Interest Disqualification

A recent opinion of the Florida Judicial Ethics Advisory Committee

Judge is disqualified from serving on county election canvassing board for the specific race involving the elected county official by whom the judge’s spouse is employed as general counsel where the spouse’s continued employment in that position likely depends on the outcome of the upcoming contested election.  Judge is not disqualified from serving on the canvassing board for other races during that election cycle.

Rationale

The judge’s duties as a member of the canvassing board include many tasks that would not be perceived as affecting the outcome of any contested race.  However, the canvassing board, according to the inquiring judge and the governing statute, may determine whether an absentee vote was properly executed or timely received and may also be called upon to determine the voter’s intent if the voter’s ballot was not clearly marked.  The judge acknowledged that some races can be decided by a very close margin, meaning that any decision by the canvassing board regarding even a single ballot could conceivably change the outcome of any given race. 

Because the judge’s spouse’s continued employment as general counsel is likely contingent on the outcome of that specific election, that means that the judge’s spouse has more than a de minimis interest and indeed has an economic interest in the proceedings, should there be any contested or questioned ballots.  Returning to Fla. JEAC Op. 92-32, if the act of simply signing a candidate’s qualifying petition might reasonably create the impression of partiality of a judge who might later serve on a canvassing board, it would be hard to reach a different conclusion here.  Based on all the foregoing considerations, we conclude that the inquiring judge’s recusal or disqualification in that specific race is appropriate. 

There are occasionally circumstances that make judicial recusal impractical if it would result in delay and distant travel for the parties when there is only one county judge who would be ethically disqualified from ruling on urgent or emergency matters affecting those parties.  The commentary to Canon 3E notes that the rule of disqualification may occasionally be overridden by the rule of necessity in such situations.  However, section 102.141 has detailed provisions for how to proceed when the county judge or another member of the canvassing board is unable to serve.  Thus, the fact that the inquiring judge is the only county judge does not alter the Committee’s recommendation.

There is nothing to suggest that the judge or the judge’s spouse has any similar interest in the outcome of the other races; thus, general disqualification of the judge from serving on the canvassing board is not required by the Code of Judicial Conduct.

(Mike Frisch)