FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2017-07
Date of Issue: March 14, 2017

ISSUES

1. Whether Canon 5F(2) of the Code of Judicial Conduct applies to service as a senior judge on a District Court of Appeal.

ANSWER: Yes.

2. Whether, if Canon 5F(2) does apply, a senior judge may serve on all cases before a District Court of Appeal when the senior judge currently provides arbitration services in one of the judicial circuits within the District Court of Appeal’s jurisdiction.

ANSWER: No. Specifically, a senior judge is prohibited from serving on any case, including an appellate case pending in a District Court of Appeal, which originated in the judicial circuit where the senior judge currently provides arbitration services.

FACTS

The inquiring judge is a senior judge who has been asked to serve on a District Court of Appeal on a particular date. The cases scheduled for oral argument on that date originate from multiple judicial circuits, and the inquiring judge currently serves as an arbitrator in a case pending in one of those judicial circuits. The inquiring judge specifically asks whether Canon 5F(2) applies to service as a senior judge on a District Court of Appeal, and if so, on which of the cases set to be heard on that date may the judge serve as a senior judge.

 

DISCUSSION

The inquiring judge has asked whether Canon 5F(2), which concerns service as an arbitrator or mediator, applies to service as a senior judge on a District Court of Appeal. The Code of Judicial Conduct applies to “judges of the District Courts of Appeal, Circuit Courts, and County Courts.” See Fla. Code Jud. Conduct, Application. Additionally, senior judges subject to recall must comply with all provisions of the Code of Judicial Conduct, with limited exceptions. See Fla. Code Jud. Conduct, Application B(1) (stating that a senior judge “shall comply with all the provisions of this Code except Sections 5C(2), 5E, 5F(1), and 6A”); Fla. JEAC Op. 06-02. Because Canon 5F(2) is not one of the enumerated exceptions set forth in Application B(1) of the Code of Judicial Conduct, Canon 5F(2) applies to service as a senior judge when sitting on a District Court of Appeal.

The inquiring judge has been asked to participate in oral argument proceedings at a District Court of Appeal on a particular date, and asks whether Canon 5F(2) precludes the inquiring judge from serving as a senior judge on any of the cases set to be heard on that day. The District Court of Appeal hears appeals from multiple judicial circuits. On the date at issue, one of the cases set for oral argument originates from a judicial circuit in which the inquiring judge is currently serving as an arbitrator in a pending case.

Canon 5F(2) states that “[a] senior judge who provides mediation, arbitration, or voluntary trial resolution services shall not preside over any case in the circuit where such services are provided.” (emphasis added) In Florida Judicial Ethics Advisory Committee Opinion 14-21, this Committee strictly construed the term “any case,” as used in Canon 5F(2), concerning the prohibition against mediating any case in the same circuit where the judge presides as a senior judge. See Fla. JEAC Op. 14-21. Consistent with that interpretation, we find that “any case” includes cases heard at the appellate level. Additionally, with regard to any geographical restrictions on the prohibition set forth in Canon 5F(2), this Committee has explained, “[a]lthough 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.”  Fla. JEAC Op. 15-08.

Therefore, because the inquiring judge is currently serving as an arbitrator in one the judicial circuits within the District Court of Appeal’s jurisdiction, the inquiring judge is prohibited from serving as a senior judge on any case before the District Court of Appeal that originated from that judicial circuit. See Fla. JEAC Op. 15-08 (“Canon 5F(2) prohibits a senior judge from mediating cases arising out of appeals from the circuit in which the senior judge presides.”); Fla. JEAC Op. 16-22 (“[A] senior judge is prohibited from providing any dual services within any circuit in which the senior judge serves as a senior judge.”); cf. Fla. JEAC Op. 15-15 (“Canon 5F(2) would not bar the inquiring judge from mediating cases arising from appeals outside of the circuit in which the senior judge presides . . .”) (emphasis added). The senior judge is not precluded from serving as a senior judge on any case before the District Court of Appeal that arises outside of the circuit where the inquiring judge presides as an arbitrator.

 

REFERENCES

Fla. Code Jud. Conduct, Canon 5F(2), Application, Application B(1).
Fla. JEAC Ops. 16-22, 15-15, 15-08, 14-21, 06-02.

_____________


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 of 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 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 Judge Spencer D. Levine, Chair, Judicial Ethics Advisory Committee, Fourth District Court of Appeal, 1525 Palm Beach Lakes Blvd., West Palm Beach, FL 33401

Participating Members:
Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Lisa Davidson, Judge Miguel de la O, Judge James Edwards, Judge K. Douglas Henderson, Mark Herron, Esquire, Judge Barbara Lagoa, Judge Spencer D. Levine, Patricia E. Lowry, Esquire, and Judge Michael Raiden.


All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


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