March 12, 1985

Opinion No. 85/3
Canons 5, 7
"Compliance" section

The committee is of the unanimous opinion that the Code of Judicial Conduct does not prohibit you, as a retired circuit judge eligible for recall to judicial service, from serving as an arbitrator or hearing examiner for Dade County. The "compliance" section, which appears at the end of Canon 7, provides, in pertinent part:

C. Retired Judge. A judge who has retired from judicial service and who has complied with the procedures established by the Supreme Court of Florida so as to be eligible for recall to judicial service should comply with all the provisions of this Code except Canons 5C(1)-(7), 5D, 5E, 5G, and 6. (emphasis added)

 

This section goes on to provide that a retired judge who is subject to recall "shall not practice law" and "shall refrain from accepting any assignment in cases in which his present financial dealings or other extrajudicial activities might be affected, so as to ensure that his impartiality is not subject to question."

Among those provisions expressly made not applicable to a retired judge subject to recall are Canon 5E, which prohibits a judge from acting as an arbitrator or mediator and Canon 5G regarding extrajudicial appointments, which prohibits a judge from accepting an appointment "to a governmental committee, commission, or other position that is concerned with issues of fact or policy, etc." The Committee is of the opinion that the removal of these restrictions from a retired judge subject to recall is expressly for the purpose of allowing such a judge to accept employment as an arbitrator or for some other quasi-judicial service such as that of a hearing examiner. The retired judge is, of course,m subject to all the remaining Canons regarding proper conduct as a judicial officer and must carefully maintain both the actuality and appearance of impartiality and propriety with regard to the extrajudicial employment.

To of the members responding stressed the need to carefully avoid conflict, either direct or indirect, which might arise if you, as an arbitrator or hearing examiner, were involved in a case or matters relating thereto, which was subject to review by you as a judicial officer, and they recommend that you not sit during the same time period as judge and as arbitrator or examiner.

The Committee appreciates your inquiry and hopes that this response has been of assistance to you.

Sincerely,

Anne C. Booth, Chairman
Committee on Standards of Conduct Governing Judges

cc: All Committee Members

Participating members: Judges Booth, Dell, Turner, Tedder,
Green, Grube and Letts

All reference to the inquiring judge is deleted from the copies sent to the following individuals.

Mr. Sid White, Clerk of the Supreme Court of Florida
Linda Yates, Managing Editor, The Florida Bar Journal
Kathleen T. Phillips, Esq., Chairman, Judicial Qualifications Commission.
Hon. Howard T. Markey, Chairman, Ethics Advisory Panel of the Judicial Conference of the United States .
Jeffrey M. Shaman, Esquire, Director, Center for Judicial Conduct Organizations
Ms. Jean Underhill, Librarian, Broward County Law Library
Mr. Robert Wallace, Librarian, Dade County Law Library
Mr. Brian Polley, Librarian, Supreme Court of Florida


May 16, 1985

Ms. Linda H. Yates
Managing Editor
The Florida Bar Journal
The Florida Bar Center
Tallahassee, Florida 32301-8226

Re: Committee on Standards of Conduct Governing Judges
Opinion No. 85/3

Dear Linda:

Attached are two letters from Chief Justice Joseph A. Boyd, Jr., which have a direct bearing on the Committee's opinion dated March 12, 1985, relating to the propriety of retired judges subject to recall serving as arbitrators, special masters, etc. When Opinion No. 85/3 is published in the Bar Journal, I suggest this explanation:

After the release of the foregoing opinion, the Committee received information that the Supreme Court's policy for some time had been to remove from its list of retired judges subject to recall the names of those judges who were serving as arbitrators, special masters, or in other quasi-judicial service. The Conference Minutes of the Supreme Court for July 16, 1984, stated this policy as follows: "The Court reaffirmed its policy that retried judges who are on the Court's list of judges approved for assignment to judicial service will not be permitted to serve as special masters, commissioners or arbitrators while they are on said list."

The Chairman of the Committee wrote to the Supreme Court and received, on March 22, 1985, the following explanatory letter from Chief Justice Joseph A. Boyd, Jr. :

....Your letter pointed out that the Committee in that opinion found no impropriety under Canon 7 of the Code of Judicial Conduct in a retired judge serving as an arbitrator or hearing officer while remaining eligible for recall to active judicial service. Your letter expressed concern about the inconsistency between that opinion and this Court's policy of disallowing the employment of retired judges eligible for recall for temporary judicial assignment as arbitrators, special masters, and the like.

Let me assure you that our position in this regard is not based on any of the concerns or principles involved in Canon 7. The Court adopted this policy as a matter of administrative convenience based on concern for the sooth operation of the retired judges program. We were concerned that if judges on the active list were allowed to serve in these other capacities, we might find, at times of critical need, many retired judges serving as arbitrators or hearing officers and therefore unavailable for pressing judicial assignments.

The fact that you did not learn of the Court's policy on this matter indicates a regrettable failure of communication which I believe must be remedied in the future. However, I believe that all of the retired judges on the list of those eligible for judicial service have been made aware of our policy, as have the circuit court chief judges and trial court administrators who commonly have need of the temporary assignment of a retired judge. I have no objection, and can imagine none, to the publication of the Supreme Court minute entry along with your Committee's opinion.

Thereafter, however, the Supreme Court reconsidered that policy, and, on April 23, 1985, Chief Justice Boyd wrote the Chairman, in part, as follows:

You will recall that this Court has had a policy for several years that retired judges who are available for active judicial service will not be allowed to perform in quasi-judicial service. You will also recall that your Committee correctly held that such service was not unethical.

At our last Conference the Court changed the policy to permit the performance of such service by retired judges, except with the continuing provision that they would not be allowed to practice law.

The May 15 issue of The Florida Bar News, as you may be aware, has a write-up on the action of the Supreme Court with regard to a retired judge who asked that he be allowed to maintain his standing on the list as subject to recall and be permitted to serve as a United States alternate land commissioner. The report in the Bar News is that the Court's conference on April 22 resulted in a decision that the judge could serve as commissioner and maintain his place on the list as subject to recall.

Sincerely,

Anne C. Booth, Chairman
Committee on Standards of Conduct Governing Judges

cc: All Committee Members

Participating members: Judges Booth, Goldstein, Dell, Turner, Tedder,
Green, Grube and Letts

All reference to the inquiring judge is deleted from the copies sent to the following individuals.

Mr. Sid White, Clerk of the Supreme Court of Florida
Linda Yates, Managing Editor, The Florida Bar Journal
Kathleen T. Phillips, Esq., Chairman, Judicial Qualifications Commission.
Hon. Howard T. Markey, Chairman, Ethics Advisory Panel of the Judicial Conference of the United States .
Jeffrey M. Shaman, Esquire, Director, Center for Judicial Conduct Organizations
Ms. Jean Underhill, Librarian, Broward County Law Library
Mr. Robert Wallace, Librarian, Dade County Law Library
Mr. Brian Polley, Librarian, Supreme Court of Florida


March 22, 1985

The Honorable Anne C. Booth
Judge of the District Court of Appeal
First District, State of Florida
Tallahassee, Florida 32301

Dear Judge Booth:

Thank you for your letter of March 19, 1985, concerning Opinion 85/3 of the Committee on Standards of Conduct Governing Judges, of which you are so ably serving as Chairman. Your letter pointed out that the Committee in that opinion found no impropriety under Canon 7 of the Code of Judicial Conduct in a retired judge serving as an arbitrator or hearing officer while remaining eligible for recall to active judicial service. Your letter expressed concern about the inconsistency between that opinion and this Court's policy of disallowing the employment of retired judges eligible for recall for temporary judicial assignment as arbitrators, special masters, and the like.

Let me assure you that our position in this regard is not based on any of the concerns or principles involved in Canon 7. The Court adopted this policy as a matter of administrative convenience based on concern for the sooth operation of the retired judges program. We were concerned that if judges on the active list were allowed to serve in these other capacities, we might find, at times of critical need, many retired judges serving as arbitrators or hearing officers and therefore unavailable for pressing judicial assignments.

The fact that you did not learn of the Court's policy on this matter indicates a regrettable failure of communication which I believe must be remedied in the future. However, I believe that all of the retired judges on the list of those eligible for judicial service have been made aware of our policy, as have the circuit court chief judges and trial court administrators who commonly have need of the temporary assignment of a retired judge. I have no objection, and can imagine none, to the publication of the Supreme Court minute entry along with your Committee's opinion.

Trusting that this letter is responsive to your concern and with admiration and thanks for your fine work as Chairman of the Committee and as a Judge, I am

Sincerely,

Joseph A. Boyd, Jr.


April 23, 1985


The Honorable Anne C. Booth
Judge of the District Court of Appeal
First District, State of Florida
Tallahassee, Florida 32301

Dear Anne:

You will recall that this Court has had a policy for several years that retired judges who are available for active judicial service will not be allowed to perform in quasi-judicial service. You will also recall that your Committee correctly held that such service was not unethical.

At our last Conference the Court changed the policy to permit the performance of such service by retired judges, except with the continuing provision that they would not be allowed to practice law.

Again, let me congratulate you for ascending to the leadership of the First District Court of Appeal.

Cordially,

Joseph A. Boyd, Jr.