FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2015-08
Date of Issue: May 8, 2015

ISSUE

May a senior judge mediate cases arising out of appeals from the circuit in which the senior judge presides?

ANSWER: No.

FACTS

The inquiring senior judge is a mediator who engages in appellate mediation. The inquiring judge contemplates requests for appellate mediation in cases arising out of appeals from the circuit in which the judge presides, but that are being heard in the District Court of Appeal headquartered outside of the circuit.

DISCUSSION

This Committee has recently addressed the application of recent amendments to the Code of Judicial Conduct and its Commentary relating to service of senior judges as mediators. In Fla. JEAC Op. 2014-21, we opined that a senior judge could not serve as a mediator in a federal court (federal district court or bankruptcy court) that was located in the geographic circuit in which the judge presides as a senior judge. We concluded that the Supreme Court, in adopting Canon 5F(2), prohibited a senior judge from serving as a mediator in any case (emphasis provided by the Supreme Court) in a circuit in which a senior judge is presiding as a judge, intended that this prohibition includes any case, federal or state, within the geographical circuit. Fla. JEAC Op. 2014-21 includes a comprehensive discussion of the rule change and the Supreme Court’s stated rationale for the change.

Although the seat of the District Court of Appeal may be located outside of the geographic circuit in which the senior judge may preside, the District encompasses all the circuits within its jurisdiction. The appellate court and trial court many times exercise concurrent jurisdiction over a case on appeal. Furthermore, it is not uncommon for a three-judge panel to hear arguments in the home circuit of the parties. Finally, regardless of where the case is scheduled to be argued, it continues to be a case from a particular circuit and eventually will be remanded back to that circuit.

Therefore, Canon 5F(2) prohibits a senior judge from mediating cases arising out of appeals from the circuit in which the senior judge presides.

REFERENCES

Fla. Code of Judicial Conduct, Canon 5F(2) and Application Section
Fla. JEAC Op. 2014-21

_____________


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.    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 Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997).

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

For further information, contact Dean Bunch, Chair, Judicial Ethics Advisory Committee, 3600 Maclay Boulevard South, Suite202, Tallahassee, Florida 32312.

Participating Members:
Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge Robert T. Benton, II, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jack Espinosa, Jr., Judge T. Michael Jones, Judge Spencer Levine, Judge Barbara Lagoa, Patricia E. Lowry, Esquire, Judge Michael Raiden, Judge Richard R. Townsend.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady, Justice Liaison
John A Tomasino, Clerk of Supreme Court
All Committee Members
Executive Director of the Judicial Qualifications Committee
Office of the State Courts Administrator