July 10, 1995

PERSONAL AND CONFIDENTIAL

(OPINION 95-23
(Part-Time Traffic Magistrate
(Serve Part-Time Uncompensated
(Special Assistant State Attorney

In re: Committee on Standards of Conduct Governing Judges
Your Inquiry Dated May 22, 1995

As a Traffic Magistrate you inquire whether a traffic magistrate may serve as a part-time, uncompensated Special Assistant State Attorney.

In Opinion 92-48, we found that a magistrate could continue to work for the Public Defender in an administrative position as a traffic magistrate as along as he or she did not represent defendants charged with DUI or defendants in the criminal traffic division of the County Court. See also Opinion 95-8 (when the Committee found part-time hearing officers should not practice law in the court where they preside).

As noted in your letter, Canon 5C(2) would not permit a judge to serve as a Special Assistant State Attorney. However, Section A of the "Application of the Code of Judicial Conduct" provides that a traffic magistrate is not required to comply with Section 5C(2).

Five members do not believe you should serve as both Traffic Magistrate and a Special Assistant State Attorney. One judge commented, "In ..... County, traffic magistrates are used extensively in all traffic cases. It is very likely that a traffic defendant may appear in Court with a magistrate presiding--would it not look unfair for the same person to assume a prosecutorial role in another Courtroom? The ...... Circuit Special

Assistant State Attorneys was designed for participation by lawyers in private practice who are primarily civil law practitioners. The practical reality is that there ought to be enough such lawyers without the need for traffic magistrates to participate." Additionally, Article II, Section 5 of the Florida Constitution prohibits holding two public offices simultaneously. As one member observed, "I would expect, however, that the willful violations of a provision of the Florida Constitution would, at least, violate Canon 1 and Canon 2A."

Four of the responding members believe the Canons allow you to serve as both a Traffic Magistrate and a Special Assistant State Attorney, with the understanding you would not prosecute any criminal traffic offenses and with the caveat that this Committee does not have jurisdiction to render legal interpretations of the Florida Traffic Court Rules or the Florida Constitution.

One member entered a disqualification.

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 judges, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 327 So.2d 5 (Fla. 1976).

Very truly yours,

Steve Rushing, Chairman
Committee on Standards of Conduct
Governing Judges

SOR:sm

CC: All Committee Members
Office of the State Courts Administrator
(Name of judge deleted from this copy)

Participating Members:Judges Cardonne, Dell, Doughtie, Green, Kahn, Patterson, Rushing, Silverman, Tolton, and Cushman, Esq.