FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 99-16
Date of Issue: June 7, 1999

WHETHER A RETIRED JUDGE WHO MEDIATES CIRCUIT COURT CASES MAY BE RECALLED TO SERVE AS A COUNTY JUDGE IN AN OUTLYING DISTRICT?

ISSUE

Whether a retired judge who mediates circuit court cases may be recalled to serve as a county judge in an outlying district?
ANSWER: YES.

FACTS

The inquiring judge is a county court administrative judge. He asks whether it would be an ethical violation if a retired circuit court judge was appointed to hear county court civil cases in an outlying district. The retired judge would be appointed to serve for three to four months. The retired judge mediates circuit court cases filed in the downtown courthouse. The county court cases would be heard in an outlying branch courthouse. The vast majority of cases the judge would hear in the branch courthouse would be pro se and collections cases. None of these cases are the type of cases that the judge usually mediates.

DISCUSSION

Canon 5F prohibits a judge from acting as an arbitrator or otherwise performing judicial functions in a private capacity unless expressly authorized by law or Court rule. However, a retired judge may mediate cases and still be recalled to judicial service since a retired judge subject to recall is not bound by Canon 5F. See Application of the Code of Judicial Conduct, Section B.1 The Commentary to Section B notes:

"If a senior judge is rendering mediation services for compensation in civil personal injury matters, he or she should not accept a judicial assignment for that type of case in the same court where the senior judge is mediating those cases. On the other hand, the senior judge could be assigned judicial duties in other jurisdictions of that same court, e.g., criminal, family law, or probate matters, or be assigned as a senior judge in other geographic areas in which the judge does not conduct mediation proceedings."


The Committee has previously approved retired judges serving as a mediator, as an arbitrator, as a hearing examiner, and as a city hearing officer. In Opinion 94-48, the inquiring senior judge asked whether he could accept an assignment to preside over a partnership dissolution jury trial where he had mediated personal injury actions in the same circuit, but not actions involving either attorney. Since the retired judge had previously mediated only personal injury cases in that circuit and the instant assignment would be for a partnership dissolution case, seven of the eight responding members of the Committee believed the judge could accept the assignment. See also Opinion 93-3, and 91-24. In Opinion 85-3 the Committee unanimously found that the Code of Judicial Conduct did not prohibit the inquiring retired circuit judge from serving as an arbitrator or hearing examiner for Dade County. In Opinion 95-33 the Committee held that the retired senior judge subject to recall could serve as a city hearing officer to make preliminary findings relating to claims concerning vested rights.

The Committee finds that a retired judge who performs mediations of circuit cases can serve as a senior county judge in an outlying district since the type of cases that the retired judge would be presiding over would be completely different than the type of cases that the retired judge would be mediating. However, the Committee would point out that the retired judge is "still subject to the remaining provisions of the Code and must guard against the appearance of impropriety." Opinion 95-33.

REFERENCES

Florida Code of Judicial Conduct: Canon 5F, Application of the Code of Judicial Conduct, Section B and Commentary.

Florida Judicial Ethics Advisory Committee Opinions: 85-3, 91-24, 93-3, 94-48 and 95-33.

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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. Petition of the Committee on Standards of Conduct Governing Judges, 698 So.2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.


For further information, contact The Honorable Lisa D. Kahn, Chair, Judicial Ethics Advisory Committee, Harry T. and Harriette V. Moore Justice Center, 2825 Judge Fran Jamieson Way, Viera, Florida, 32940-8006.


Participating Members: Judges Cardonne, Dell, C. Kahn, L. Kahn, Patterson, Rodriquez, Rushing, Silverman, Smith and Swartz .

Copies furnished to:
Justice Charles T. Wells
All Committee Members
All Members of the J.Q.C Office of the State Courts Administrator (Name of inquiring judge deleted from this copy)

1 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 the Code except Sections 5C(2), 5E, 5F, and 6A.