FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2019-09
Date of Issue: March 25, 2019

ISSUES

May a General Magistrate continue to serve as a member of the Board of Adjustments and Appeals within that member’s municipality?

ANSWER: Yes, under the narrow circumstances presented here.

FACTS

The inquiring general magistrate currently presides in family court. The magistrate is also a member of a municipal Board of Adjustments (Board). The Board’s function is to hear requests for variances from the City Code (e.g. building setbacks) and appeals from decisions of building officials. Decisions of the Board are appealable to the Circuit Court.

 

DISCUSSION

The Board was created by statute. The municipal code describes the Board’s function and powers as follows:

  1. To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this Charter or of any ordinance adopted pursuant thereto.
  2. To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinance.
  3. To authorize upon appeal in specific cases such variance from the terms of the ordinance where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so justice done.

The submitted inquiry would not prove difficult to respond to if the inquiry were presented by a sitting member of the judiciary. We would answer the question in the negative. A judge serving on the Board with its defined functions would clearly violate Fla. Code Jud. Conduct, Canons 4 and 5. The rules are different for magistrates. In Fla. JEAC Op. 18-30, we partially addressed the question of the limitations placed on general magistrates by the Florida Code of Judicial Conduct. We observed that “[t]he application of the Code of Judicial Conduct to court employed general magistrates is somewhat unique.” It is unique because of the differential treatment of magistrates as opposed to judges. The Code even differs as it relates to its treatment of the type of magistrate. For example, a civil traffic infraction hearing officer is exempt and is specifically not required to comply with sections 5C(2), 5D(2) and (3), 5E, 5F, and 5G, and Sections 6B and 6C of the Code. Fla Code of Jud. Conduct Application A (1). The Code does not extend these exemptions to other magistrates although some of them are extended to senior judges. Fla Code of Jud. Conduct Application B (1). The supreme court website indicates that there have been several amendments to Canon 5 and no amendments to Canon 4 since the new Code was adopted in 1994. See In re Code of Judicial Conduct, 643 So. 2d 1037 (Fla. 1994). The amendments are not illuminating as to the question presented here.1

The Court has made it clear that because magistrates perform a judicial function the Code is applicable to them. See In re Florida Rules of Practice & Procedure for Traffic Courts Civil Traffic Infraction Hearing Officer Pilot Program, 559 So. 2d 1101, 1102 (Fla. 1990) (“We conclude, however, that traffic magistrates perform a judicial function and are subject to the Code of Judicial Conduct in the same manner as part-time judges.”). The Application section of the Code explains that all general magistrates must comply with sections 1, 2A and 3 of the Code. The section includes a catchall which makes it applicable to all magistrates, “such other provisions of this Code that might reasonably be applicable depending on the nature of the judicial function performed.” Id. (emphasis added). In JEAC Op. 18-30 we further observed “[t]o date, neither the Florida Supreme Court nor the Committee have squarely addressed which, if any, of the Canons besides 1, 2A, and 3 ‘might reasonably be applicable’ to general magistrates or under what circumstances.” It is apparent that for general magistrates the canons that “might reasonably be applicable” will have to be determined on a case-by-case basis.

Fla. Code Jud. Conduct, Canon 4D encourages a judge to serve as “a member, officer, director, trustee or non-legal advisor of an organization or governmental entity devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice…” Similarly, Canon 5C(2) prohibits judges from accepting “appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, the judicial branch, or the administration of justice.” The Board’s stated purpose is clearly not related to the improvement of the law. Yet, for a general magistrate, the fact that the Board does not engage in matters designed to improve the law may not, without more, be a disqualifying factor. The appeals from decisions of the Board and the potential appellate conflict those decisions may create are of greater concern.

As we previously stated, the inquiring general magistrate is a family law magistrate. The nature of the assignment does not call into action any particular provision of the Code. However, Fla. Code Jud. Conduct, Canon 4D(1)(b) prohibits a judge from serving as a member, officer or advisor of a governmental entity if it is “likely that the organization . . . will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.” (Emphasis added). Canon 4D(1)(b) does not place a numerical number on the word “frequent.” We decline to place a numerical figure or guess at what the Court meant when it included the term “frequent” in the Code. The inquiring magistrate has researched how likely and frequent it is that decisions of the Board are appealed to the Circuit Court. The magistrate advises that the decisions of the Board have never been the subject of an appeal. We find, therefore, that it is neither “likely” nor “frequent” that the decisions of the Board are subject to appeal and for that reason, there are no impediments to the magistrate serving on this Board. We do caution that it is incumbent upon the inquiring general magistrate to remain mindful of if and how many cases are appealed to the Circuit Court. If the appeals become frequent, the general magistrate should no longer serve on this Board.

 

REFERENCES

In re Florida Rules of Practice & Procedure for Traffic Courts Civil Traffic Infraction Hearing Officer Pilot Program, 559 So. 2d 1101, 1102 (Fla. 1990)
In re Code of Judicial Conduct, 643 So. 2d 1037 (Fla. 1994)
Code of Judicial Conduct, 840 So. 2d 1023 (Fla. 2003)
In re Report of The Alternative Dispute Resolution Rules & Policy Comm. on Senior Judges as Mediators, 915 So. 2d 145 (Fla. 2005)
In re Amendments to the Code of Judicial Conduct--Limitations on Judges' Participation in Fundraising Activities, 983 So. 2d 550 (Fla. 2008)
In re Amendments to Code of Judicial Conduct; Florida Rules for Certified & Court-Appointed Mediators; Florida Rules of Civil Procedure; Florida Rules of Judicial Administration; Florida Rules of Juvenile. Procedure; £and Florida Family Law Rules of Procedure--Senior Judges As Mediators, 141 So. 3d 1172 (Fla. 2014)
In re Amendments to Code of Judicial Conduct--Senior Judges Serving as Voluntary Trial Resolution Judges & Arbitrators, 194 So. 3d 1015 (Fla. 2016)

Fla. Code of Jud. Conduct, Canons 4D, 4D(1)(b), 5C(2), Application A(1) & B(1)

Fla. JEAC Op 18-30

_____________


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

The Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law which governs any proceeding over which the inquiring judge may preside. The Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with whether the proposed conduct violates a provision of that Code.

For further information, contact Judge James A. Edwards, Judicial Ethics Advisory Committee Chair, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, FL 32114.

Participating Members:
Judge Michael Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Judge David Green, Mark Herron, Esquire, Judge Jeffrey T. Kuntz, Judge Matthew C. Lucas, Judge Michael Raiden, and Charles Reynolds, Esquire.


All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady, Justice Liaison
John A Tomasino, Clerk of Supreme Court
All Committee Members
Executive Director of the Judicial Qualifications Committee
Office of the State Courts Administrator

 

1. Code of Judicial Conduct, 840 So. 2d 1023 (Fla. 2003). “Amendments to the Code of Judicial Conduct and Rules Regulating The Florida Bar Re Pro Bono Activities by Judges and Judicial Staff.”
In re Report of The Alternative Dispute Resolution Rules & Policy Comm. on Senior Judges as Mediators, 915 So. 2d 145 (Fla. 2005).
In re Amendments to the Code of Judicial Conduct--Limitations on Judges' Participation in Fundraising Activities, 983 So. 2d 550 (Fla. 2008).
In re Amendments to Code of Judicial Conduct; Florida Rules for Certified & Court-Appointed Mediators; Florida Rules of Civil Procedure; Florida Rules of Judicial Administration; Florida Rules of Juvenile. Procedure; £and Florida Family Law Rules of Procedure--Senior Judges As Mediators, 141 So. 3d 1172 (Fla. 2014).
In re Amendments to Code of Judicial Conduct--Senior Judges Serving as Voluntary Trial Resolution Judges & Arbitrators, 194 So. 3d 1015 (Fla. 2016)