April 26, 1993

Opinion 93-26
Part-time judges/Traffic magistrates
Restriction on practice in DUI court

Dear Judge

You have asked the committee to reconsider Opinion 92-48 in which we opined that a traffic magistrate could not hear civil traffic cases (infractions) and also appear as defense counsel in county court DUI traffic cases pursuant to Florida Traffic Rule 6.30(i) entitled Code of Judicial Conduct.

You state you are the administrative judge for one of the largest traffic courts in the state. The great majority of your traffic magistrates are criminal defense attorneys who have expertise in the traffic court rules, criminal procedure and evidence. Many of these attorneys who receive $20 per hour for their traffic magistrate work also represent DUI defendants. If Committee Opinion 92-48 was followed, you could lose eight of your twelve traffic magistrates.

Also, you state that you and your Chief Judge do not believe Traffic Court Rule 6.630(i) precludes representation of DUI defendants by traffic magistrates. You have concluded the rule only precludes traffic magistrates from appearances in civil traffic infraction cases as opposed to criminal traffic cases.

Finally, you object to any committee assertion that the dual service as traffic magistrate and DUI defense attorney does not promote public confidence in the integrity and impartiality of the judiciary. You have never received a complaint in this regard. In fact, you state you have received comments from police officers and the public expressing confidence in the integrity and impartiality of your traffic magistrates. There have not been any problems caused by the dual activities.

All nine participating Committee members believe Florida Traffic Rule 6.630(i) clearly prohibits traffic magistrates from practicing as attorneys in the criminal traffic court. Both civil infractions and criminal traffic cases are governed by the same Florida Traffic Court Rules and tried in county court although in different divisions.

The Committee recommends and suggests that you direct your inquiry to the Florida Supreme Court's Traffic Review Committee and/or the Florida Bar's Traffic Court Rules Committee. Traffic magistrates are a statutory exception to the abolishment of part-time judges which occurred with the adoption of Article V of the Florida Constitution in 1972. Your inquiry raises a judicial policy issue, not just a judicial ethics question.

Four Committee members agree that this Committee should recede from that portion of Opinion 92-48 that suggests that the dual activity does not promote public confidence in the integrity and impartiality of the judiciary.

The Committee appreciates your inquiry and hopes this letter may be helpful.

The 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 issued by the committee. Petition of the Committee on Standards of Conduct for Judges, 327 So2d 5 (Fla.1976).

With regards, I remain,

Yours very truly,

Harvey Goldstein, Chairman
Committee on Standards of Conduct Governing Judges

JT/mc

cc: All Committee Members

Participating members: Judges Tolton, Green, Kahn, Dell, Doughtie, Goldstein, Farina, Rushing and Edwards, Esq.

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