FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2009-17
Date of Issue: September 11, 2009

ISSUE

May a magistrate and a judge communicate on a point of law at any point in a case without the communication being prohibited as ex parte?

ANSWER: No, a magistrate and a referring circuit judge should not communicate about the merits of a case referred to the magistrate without informing the parties.

FACTS

According to the inquiring circuit judge, “[o]n a regular basis . . .[a] magistrate wishes to discuss a point of law with [the inquiring judge] in pending cases.” The inquiring judge asked in a preliminary letter:

“May the magistrate consult with me on a point of law in a case pending before the magistrate:

pre-hearing?
where a hearing was held, the matter was taken under advisement, and the magistrate is uncertain as to the recommendation to submit?
post-recommendation, but pre-entry order?
post-order where exceptions have been taken, but pre-exception hearing?”

In the same preliminary letter, the inquiring judge reported finding no canonical requirement that the parties receive notice of such communications but expressed concern that “if we are allowed to consult, the magistrate agrees with my advice and makes the discussed recommendation, a party might file exceptions that would be useless.”

DISCUSSION

Although magistrates are in one sense “court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities,” Canon 3B(7)(c), magistrates are not on any one referring judge’s staff and have their own responsibilities, including conducting hearings at which evidence is taken, finding facts, and filing reports.  These responsibilities may fairly be denominated “adjudicative” in their own right.  Indeed, the Florida Rules of Civil Procedure specify:  “All grounds for disqualification of a judge shall apply to magistrates.”  Fla. R. Civ. P. 1.490(d).  The Code provides, moreover, that “Canons 1, 2A and 3, and such other provisions of” the Code of Judicial Conduct “that might reasonably be applicable” govern general and special magistrates in the discharge of their duties.  See Application Section, Fla. Code Jud. Conduct.

After appointment by the court and receipt of matters referred to them, magistrates “perform all of the duties that pertain to the office according to the practice in chancery and under the direction of the court.” Fla. R. Civ. P. 1.490(d).  The civil rules make no other reference to judicial participation until the court takes “appropriate action” after the magistrate’s report and the parties’ exceptions are filed.  Fla. R. Civ. P. 1.490(h) (“If exceptions are filed, they shall be heard [by the court] on reasonable notice by either party.”).  See also Fla. Prob. R. 5.095(h) & 5.697(f); Fla. Fam. L. R. P. 12.490(f) & 12.492(g); Fla. R. Juv. P. 8.257(e) & (f).

Although the relationship between trial court and reviewing court differs in important respects from the relationship between magistrate and circuit judge, we note that commentary to Canon 3B(7) states:  “If communication between the trial judge and the appellate court with respect to a proceeding is permitted, a copy of any written communication or the substance of any oral communication should be provided to all parties.”

The canons distinguish between ex parte communications and “other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding.” Canon 3B(7)(c) provides:

(7) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:
. . . .
 (c) A judge may consult with other judges or with court personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities.

We do not understand the inquiring judge to be asking about an ex parte communication of the kind defined as “communication between counsel and the court when opposing counsel is not present.”  Black’s Law Dictionary (8th Ed. 2004).
         
The Code does not prohibit communication between circuit judges and magistrates that is required for scheduling, administrative purposes or emergencies and that does not deal with substantive matters or issues on the merits.  Notice to the parties is not necessary in the event of such coordination, so long as no party to the proceedings is participating and the communications are not made on behalf of any party.  Cf. Fla. Code Jud. Conduct, Canon 3B(7). 

The main thrust of Canon 3B(7) is to ensure “every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law.”  Id.   In the context of proceedings referred to magistrates, interested persons are entitled to be heard by a magistrate who has not received “marching orders,” i.e., substantive direction, from the referring judge without the parties’ knowledge.  The order of reference, which may be a standing administrative order, is the appropriate vehicle for providing the magistrate any substantive direction on the merits that may be necessary.

While not ex parte, strictly speaking, communications between referring judges and magistrates about active cases do qualify as “communications made to the judge outside the presence of the parties concerning a pending or impending proceeding,”  Canon 3B(7), and so fall within the canon’s purview.  Such communications should not, at any time before the case is decided, include a discussion of the merits of the matter referred to the magistrate, unless the parties are made aware of the substance of the discussion.

REFERENCES

Florida Code of Judicial Conduct:
Canon 3B(7)(c), Commentary to Canon 3B(7),  Application Section.

Florida Court Rules:
Fla. R. Civ. P. 1.490(d) & (h), Fla. Prob. R. 5.095(h) & 5.697(f); Fla. Fam. L. R. P. 12.490(f) & 12.492(g),   Fla. R. Juv. P. 8.257(e) & (f).

_____________

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 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. See Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualifications Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. See Id.

The opinions of this Committee express no view on whether any proposed conduct of an inquiring judge is consistent with the substantive law which governs any proceeding over which the inquiring judge may preside.  This Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with the issue of whether the proposed conduct violates a provision of that Code.

For further information, contact: Judge T. Michael Jones, Chair, Judicial Ethics Advisory Committee, 190 Governmental Center, M.C. Blanchard Judicial Building, Pensacola, Florida  32502.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge T. Michael Jones, Patricia E. Lowry, Esquire, Judge C. McFerrin Smith III, Judge Richard R. Townsend, Judge Dorothy Vaccaro.


Copies furnished to:
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator
Inquiring Judge (Name of inquiring judge deleted from this copy)