FLORIDA SUPREME COURT
JUDICIAL ETHICS ADVISORY COMMITTEE
Opinion Number: 00-36
Date of Issue: November 26, 2000
MAY A PART-TIME JUVENILE DEPENDENCY HEARING OFFICER ASSIGNED TO ONE OR MORE COUNTIES IN THE CIRCUIT REPRESENT CRIMINAL DEFENDANTS, IN COUNTY OR CIRCUIT COURT MATTERS, IN THE SAME COUNTIES IN WHICH THE HEARING OFFICER IS ASSIGNED?
MAY A PART-TIME JUVENILE DEPENDENCY HEARING OFFICER ASSIGNED TO ONE OR MORE COUNTIES IN THE CIRCUIT REPRESENT CRIMINAL DEFENDANTS, IN COUNTY OR CIRCUIT COURT MATTERS, IN COUNTIES OF THE CIRCUIT IN WHICH HE/SHE DOES NOT SIT AS THE HEARING OFFICER?
MAY A PART-TIME JUVENILE DEPENDENCY HEARING OFFICER ASSIGNED TO ONE OR MORE COUNTIES IN THE CIRCUIT REPRESENT LITIGANTS IN FAMILY LAW CASES, DOMESTIC VIOLENCE, DELINQUENCY, ETC. (OTHER THAN DEPENDENCY CASES), IN THE SAME COUNTIES IN WHICH THE HEARING OFFICER IS ASSIGNED?
MAY A PART-TIME JUVENILE DEPENDENCY HEARING OFFICER ASSIGNED TO ONE OR MORE COUNTIES IN THE CIRCUIT REPRESENT LITIGANTS IN FAMILY LAW CASES, DOMESTIC VIOLENCE, DELINQUENCY, ETC. (OTHER THAN DEPENDENCY CASES), IN COUNTIES OF THE CIRCUIT IN WHICH HE/SHE DOES NOT SIT AS A HEARING OFFICER?
All relevant facts are included in the statement of the issues above.
In Judicial Ethics Advisory Committee Opinion 95-8, this Committee determined, as a threshold matter, that the Code of Judicial Conduct applies to part-time child support hearing officers. The Committee sees no reason to take a different view with regard to juvenile dependency hearing officers. Also in Opinion 95-8, this Committee determined that part-time hearing officers should not practice law in the court in which they preside. The Committee sees no reason to depart from the reasoning in Opinion 95-8. Accordingly, the answers to inquiries 1A and 2A are no.
In Opinion 98-12, this Committee relied upon Opinion 95-8 to conclude that a part-time child support enforcement hearing officer assigned to five of six counties in the circuit should not practice family law in the sixth county of the circuit. The Committee would not apply a different rule to the present inquiry, even though question 1B involves practicing criminal law in counties where the part-time juvenile dependency hearing officer does not sit. Judicial Ethics Advisory Committee Opinion 98-12 is directly on point as to the inquiry raised in question 2B.
This Committee continues to receive a substantial number of formal and informal inquiries for opinions concerning law practice by part-time hearing officers. The Committee has been consistent in its view concerning the ethical restrictions applicable to part-time judicial-type officers. See e.g. Fla. JEAC Ops. 00-32, 98-23, 98-12, 95-23, 95-8, 93-35, 93-26, 92-48, 90-26. Information received by this Committee from the Office of the State Courts Administrator on October 30, 2000, indicates that, statewide, utilization of part-time quasi-judicial officers is as follows:
General and Special Masters, including dependency -- 18 part-time positions;
Child Support Enforcement Hearing Officers -- 68 part-time positions
Traffic Hearing Officers -- 129 part-time positions
This means that Florida now has at least 215 part- time judicial officers. The proliferation of part- time hearing officers greatly increases the chances for appearances of impropriety and conflicts condemned by Canons 2 and 3 of the Code of Judicial Conduct.
From the perspective of judicial conduct issues, full-time judicial officers are much preferable to part-time officers. The Committee sees no practical reason why a full-time hearing officer could not be employed to do the work of two or more part-time officers. The continued use of part-time quasi-judicial officers, and in ever- increasing numbers, is bound, in the view of this Committee, to create more problems in the future. Many inquiries that have come to this Committee from part-time judicial officers have apparently been based on the assumption that only persons with expertise in a particular subject matter can serve as part-time judges. Any trend toward part-time specialist judges, however, is contrary to the underlying philosophy of Article V of the Florida Constitution. Beginning in the mid-1970s, Florida's judicial system has been characterized, at least according to the dictates of Article V of the Constitution, by its use of legal generalists, as opposed to judges with niche-type experience. Accordingly, the Committee questions the assumption that, in the case of part- time traffic magistrates, only persons who practice traffic matters will serve in such positions.
Code of Judicial Conduct: Canon 2, Canon 3.
Opinions 00-32, 98-23, 98-12, 95-23, 95-8, 93- 35, 93-26, 92-48, 90-26.
The Judicial Ethics Advisory 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 by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 698 So.2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.
For further information, contact Judge Charles J. Kahn, Jr., Chairman, Judicial Ethics Advisory Committee, 301 Martin Luther King, Jr., Blvd., Tallahassee, FL 32399-1850
Judge Charles J. Kahn, Jr.
Judge Gisela Cardonne
Judge Lisa D. Kahn
Judge Phyllis D. Kotey
Judge David Levy
Judge C. McFerrin Smith, III
Judge Emerson Thompson
Judge Richard R. Townsend
Marjorie Gadarian Graham