FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 99-19
Date of Issue: August 6, 1999

WHETHER THERE IS AN APPEARANCE OF IMPROPRIETY WHEN LAW ENFORCEMENT OFFICERS PLACE IN THE COURT FILE THEIR UNSWORN COMMENTS THAT ARE ATTACHED TO A TRAFFIC CITATION WHEN THE COMMENTS ARE NOT DISCLOSED TO THE DEFENDANT, EVEN IF THE JUDGE DOES NOT READ THE COMMENTS?


WHETHER A JUDGE IS ENGAGING IN EX PARTE COMMUNICATIONS BY REVIEWING UNSWORN COMMENTS OF A LAW ENFORCEMENT OFFICER, ATTACHED TO A TRAFFIC TICKET, WHEN THE COMMENTS ARE NOT DISCLOSED TO THE DEFENDANT?

ISSUE

Whether there is an appearance of impropriety when there are unsworn comments of a law enforcement officer attached to a traffic citation when the comments are not disclosed to the defendant, even if the judge does not read the comments?

ANSWER: No.

Whether a judge is engaging in improper ex parte communications by reviewing unsworn comments of a law enforcement officer attached to a traffic ticket when the comments are not disclosed to the defendant?

ANSWER: Yes.
FACTS

The inquiring circuit judge is assigned to the felony division, where he regularly handles felony traffic charges that are initially filed on Uniform Traffic Citation forms issued by the Dept. of Highway Safety and Motor Vehicles. Frequently accompanying these citations is a page for officer comments, called a "Court Information Form". The inquiring judge states that law enforcement officers use the form to send to the judge factual allegations and the officer's personal opinions about the case, usually adverse to the defendant. The comments are not under oath and are not a part of the charging document. The forms are given to the clerk and placed in the court file. The defendant does not receive a copy of the form, and very often the defendant does not know these additional comments by the officer are available to the judge in the court file. The same form is also used in county traffic citation cases.

The inquiring judge states, "This is a widespread practice in my county and has been in use for many years....My concern is that in allowing law enforcement to submit these forms to the clerk, we may have institutionalized a system of improper ex parte communication between the officer who issues the citation and the presiding judge." Further, the inquiring judge is concerned that even if the presiding judge refrains from voluntarily reading the comments that there is an appearance of impropriety.
DISCUSSION

Numerous documents are filed in a court file by the litigants, witnesses and third parties that have an interest in the case. The Clerk of the Court is charged with the ministerial duty to "keep all papers filed in the clerk's office with the utmost care and security . . ." §28.13, Fla. Stat. (1997). It is the Clerk of the Court's duty to accept these papers for filing. The Court cannot direct the Clerk to refuse to accept documents for filing. See Mattson v. Kolhage, 569 So.2d 1358 (Fla. 3d DCA 1990)(Clerk was required to accept motions for filing not accompanied by a notice of hearing, despite memorandum from circuit judges not to accept for filing any circuit court civil motion not accompanied by a notice of hearing.) See also, State v Sutton, 231 So.2d 874 (Fla. 3d DCA 1970); Monroe Education Association v. Clerk, District Court of Appeal, Third District, 299 So.2d 1 (Fla. 1974); Collins v. Taylor, 579 So.2d 332 (Fla. 1st DCA 1991). The judiciary is not in control of documents accepted by the Clerk of the Court for filing. More importantly the judiciary does not have the authority to order the Clerk of the Court not to accept documents for filing. Therefore, the Committee finds there is not an appearance of impropriety in having the aforementioned comments by law enforcement officers placed in the court file.

However, the Committee finds it is improper for the presiding judge in a case to review these comments. The Code of Judicial Conduct in Canon 3B(7) states that "A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding", except in limited circumstances not applicable to the present issue. As stated in In re Clayton, 504 So.2d 394 (Fla. 1987):
"This canon implements a fundamental requirement for all judicial proceeding under our form of government. Except under limited circumstances, no party should be allowed the advantage of presenting matters to or having matters decided by the judge without notice to all other interested parties. This canon was written with the clear intent of excluding all ex parte communications except when they are expressly authorized by statutes or rules. E. Thode, Reporter's Notes to Code of Judicial Conduct (1973)."

The concern is not with whether an ex parte communication actually prejudices one party at the expense of the other. "The most insidious result of ex parte communications is their effect on the appearance of the impartiality of the tribunal. The impartiality of the trial judge must be beyond question." Rose v. State, 601 So.2d 1181 (Fla. 1992).

The Committee finds that a judge is engaging in improper ex parte communications by reviewing unsworn comments of a law enforcement officer, attached to a traffic citation, when the comments are not disclosed to the Defendant.


In addition to the ethical issues presented by the inquiring judge's questions there are evidentiary problems including but not limited to the fact that these comments are hearsay. However, evidentiary issues are beyond the jurisdiction of the Committee and therefore will not be addressed.

REFERENCES

Florida Code of Judicial Conduct Canon 3B(7).

State v Sutton, 231 So.2d 874 (Fla. 3d DCA 1970).

Monroe Education Association v. Clerk, District Court of Appeal, Third District, 299 So.2d 1 (Fla. 1974).

In re Clayton, 504 So.2d 394 (Fla. 1987).

Mattson v. Kohlage, 569 So.2d 1358 (Fla. 3d DCA 1990).

Collins v. Taylor, 579 So.2d 332 (Fla. 1st DCA 1991).

Rose v. State, 601 So.2d 1181 (Fla. 1992).

§28.13, Fla. Stat. (1997).

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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, Silverman, Swartz and Attorney Blanton.

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