Sunday, January 31, 2010
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 “community control.” Community control means a form of intensive, supervised custody upon an offender in the community, including surveillance on weekends and holidays, administered by Department of Corrections probation officers with restricted caseloads...Community control is an individualized program in which the freedom of an offender is restricted within the community, home, or noninstitutional residential placement, and specific sanctions are imposed and enforced. Id. For an offender placed into community control, a sentencing court shall require intensive supervision and surveillance, which may include but is not limited to: (1) specified contact with the probation officer; (2) confinement to an agreed-upon residence during hours away from employment and public service activities; (3) mandatory public service; (4) supervision by the Department of Corrections 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-related individual who is on community control, we reasonably can foresee that the judge could become a witness to the individual’s conduct. The judge possibly would observe whether the individual is complying with, or violating, the terms of community control. The judge possibly would have contact with the probation officers supervising the individual’s community control. The judge also would have a financial interest in rent which may compete with the individual’s requirement to pay supervision 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, the judge “must not initiate the communication of information to a sentencing judge or a probation or corrections officer.” Canon 2B, Comment, Fla. Code Jud. Conduct. The judge may only provide such information to such persons in response to a formal request. Id.
• If probation officers seek information from the judge, the probation officers may feel influenced by the judge’s judicial office and the judge’s financial interest in rent in evaluating the information which the judge provides.
• If the state accuses the individual of violating community control, the individual may call the judge as a witness in defense against 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 the violation.
• Even though “[a] judge may . . . testify when properly summoned,” “a lawyer who regularly appears before the judge may be placed in the awkward 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 by renting a room in the judge’s home to a non-related individual who is on community control likely would violate Canons 2A, 2B, 5A, and 5D(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)