FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2002-10 (Elections)1
Date of Issue:

ISSUES

WHETHER A TRAFFIC HEARING OFFICER CAN ENDORSE JUDICIAL CANDIDATES?

ANSWER: NO

WHETHER A TRAFFIC HEARING OFFICER CAN MAKE FINANCIAL CONTRIBUTIONS TO THE CAMPAIGN OF JUDICIAL CANDIDATES?

ANSWER: NO

FACTS

The inquiring party is a Traffic Hearing Officer who seeks to determine whether a Traffic Hearing Officer can make campaign contributions to judicial candidates. The inquirer also seeks to determine whether a Traffic Hearing Officer can endorse judicial candidates.

While indicating an awareness of the authority of opinions and references that would govern this inquiry, the Traffic Hearing Officer sought specific answers in light of the fact that previous opinions, predated the current version of the Code of Judicial Conduct which was not adopted until January 1, 1995.

DISCUSSION

The analyses of these issues require the examination and interpretation of three sources of authority: the Canons of the Florida Code of Judicial Conduct, Florida Statutes and the Florida Rules of Traffic Court. Canon 7 specifically provides:

Application of the Code of Judicial Conduct

1. Traffic Magistrate

A traffic magistrate:

(1) is not required to comply with Sections 5C(2), 5D(2) and (3),5F, and 5G, and Sections 6B and 6C.

Section 318.36 Florida Statutes: Code of Ethics specifically provides that:

Hearing Officers shall be subject to the Florida Bar Code of Professional Responsibility and not the Judicial Code of Ethics, except that they shall avoid practices or occupations that would constitute a conflict of interest or give the appearance of impropriety.

Additionally, Rule 6.630(i) Florida Rules of Traffic Court specifically provides that:

All traffic hearing officers shall be subject to the Code of Judicial Conduct in the same manner as part-time judges, except that they shall be exempt from Canon 6B and C and the first portion of provision A(2) of the compliance section of the code...

The applicability of the specified provisions of the Code of Judicial Conduct to Traffic Hearing Officers is unambiguously clear. The statutory provisions of §318.36 Florida Statutes and the provision of Rule 6.630(i) Florida Rules of Traffic Court both recognize a limited application of the Code of Judicial Conduct to Traffic Hearing Officers. These provisions do not appear to conflict with the language of Canon 7. Therefore, in the absence of the expressed reservation or limitation of the applicability Canon 7 to Traffic Hearing Officers, the Canon applies.

While Canon 7(E) Applicability provides that: "Canon 7 generally applies to all incumbent judges and judicial candidates" (emphasis added), this language regarding the "general" application of Canon 7, does not negate the specific applicability of the Canon 7 to Traffic Hearing Officers that is designated later in the Canon. Consistent with the provisions of Canon 7A(1)(b) and (e), the Traffic Hearing Officer cannot:

publicly endorse or oppose another candidate for public office or ...make a contribution to a political organization or candidate...

Opinions previously issued by the committee also appear to conclusively indicate that the Traffic Hearing Officer is prohibited from endorsing or making a contribution to a judicial candidate. The opinions also clarify that Canon 7 applies to Traffic Hearing Officers.

Opinion 94-8 specifically stated that:

"(w)e find no exception to the prohibition against political contributions as the rule applies to judges and traffic magistrates". Further Opinion 96-5 in discussing Canon 7 specifically stated that: "the Canon is not one of the Canons that a traffic magistrate is specifically exempted from compliance".

The inquiry raises questions as they relate to judicial candidates. However, judicial candidates are no different from other candidates in regard to the impropriety of endorsements or campaign contributions. Therefore, this attempt to distinguish judges from other candidates is a difference without a distinction.

REFERENCES

Florida Code of Judicial Conduct Canon 7(2002)

Florida Judicial Ethics Advisory Committee Opinions: 94-8; 96-5

Florida Rules of Traffic Court 6.630(i) (2001)

Section 318.36 Florida Statutes (2001)

_____________

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 Scott J. Silverman, Chairman, Judicial Ethics Advisory Committee, The Richard E. Gerstein Justice Building, 1351 NW 12th St #712, Miami, FL 33125

Participating Members: Judge Phyllis Kotey, Judge Scott J. Silverman, Judge Jeffrey Swartz and Judge Richard Townsend

Copies furnished to:
Chief 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)

1. The Judicial Ethics Advisory Committee has appointed an Election Practices Subcommittee. The purposes of this subcommittee is to give immediate responses to campaign questions instances where the normal Committee procedure would not provide a responses in time to be useful to the inquiring candidate or judge. Opinions designated with the "(Election)" notation are opinions of the Election Practices Subcommittee of the Judicial Ethics Advisory Committee.