FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2021-07 (Election)1
Date of Issue: June 25, 2021

ISSUE

1. Does the Code of Judicial Conduct require a general magistrate to resign or not remain in that position, if the magistrate becomes a candidate for a judicial seat?

ANSWER: No. As previously held in JEAC Ops. 08-08 and 11-09, Canon 7A(2) does not require a general magistrate who intends to become a candidate for judicial office to resign.

2. Does the fact that the general magistrate will continue to act in the capacity of a magistrate create an appearance of impropriety prohibited by the Code of Judicial Conduct?

ANSWER: No. The mere fact that the candidate will continue to act as a magistrate does not, by itself, create an appearance of impropriety under the Code of Judicial Conduct.

 

FACTS

The inquirer presently holds a position of general magistrate. The magistrate has become a candidate for a judicial office which will become an open seat during the next election, as the sitting judge does not intend to qualify to run again. The inquirer asks two related questions: 1) Whether Canon 7 of the Code of Judicial Conduct requires the inquirer to resign as a general magistrate to run for judicial office and 2) Does the mere fact of the candidacy for judge where the general magistrate continues to act as such, create an appearance of impropriety prohibited by the Code of Judicial Conduct.   

DISCUSSION

The Application of the Code of Judicial Conduct section provides, in relevant part, that a “…general or special magistrate…shall, while performing judicial functions, conform with Canons 1, 2A and 3, and such other provisions of this Code that might reasonably be applicable depending on the nature of the judicial function performed.” Therefore, the inquirer is specifically required to conform with the above Canons, as well as Canon 7, as the inquirer has now become a candidate for judicial office.

This Committee has previously dealt with very similar inquires posed by traffic hearing officers. In JEAC Op. 2008-08, the Committee opined that a traffic hearing officer did not have to resign in order to run for a position as a county court judge. There, we considered the provision in Canon 7A(2) which required sitting judges to resign to run for a non-judicial office. (Emphasis added) The JEAC found that this Canon did not, therefore, require the traffic hearing officer to resign in order to run for a judicial office. On the other hand, the Committee has found this Canon to require a traffic hearing officer to resign in the case where a hearing officer wanted to run for sheriff. Fla. JEAC Op. 1996-05. A slightly different question was considered by the JEAC in Fla. JEAC Op. 2011-09. There, the traffic hearing officer inquirer posed the same question as that herein, that is, whether the civil infraction officer remain in that position while campaigning for election as a county judge. The JEAC opined that Canon 7(2) applied to the hearing officer but that it did not require the officer to resign thereby allowing the officer to remain in that position while campaigning. Here, the Committee also finds that the Code does not require the inquirer to resign or cease working as a general magistrate while campaigning for election as a judge.

The second question posed is whether to continue to work as a general magistrate while campaigning will generally create such an appearance of impropriety that would be prohibited by the Code.

Canon 2A provides “A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” The Commentary to Canon 2A informs and guides our disposition of this issue. This Commentary is instructive to judges and to those others who perform judicial functions, as the inquirer herein. The Commentary states:

The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. Because it is not practicable to list all the prohibited acts, the proscription is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules, or other specific provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.

The Committee considers the candidacy of the inquirer just as it would consider the candidacy for re-election or retention of a sitting judge. The Code allows sitting judges to actively campaign for re-election and election while performing their judicial duties. Therefore, just as the simple or mere fact that a sitting judge’s campaigning does not, by itself, create an appearance of impropriety under Canon 2A, neither would the inquirer’s campaigning as a sitting general magistrate necessarily create such an appearance. The inquirer, just as other sitting judge candidates, will have to continuously evaluate their specific conduct while performing their judicial duties or in their personal lives under the test set out in the Commentary to Canon 2A quoted herein above.

The inquirer is cautioned that the JEAC cannot and does not render an opinion whether the proposed conduct violates any statutory provisions, local Court Administrator’s Rules or any directives or rules established by the Office of the State Court Administrator (OSCA). Our jurisdiction is limited only to issue opinions concerning the Code of Judicial Conduct.

 

REFERENCES

Fla. Code Jud. Conduct, Application of the Code of Judicial Conduct, Canon 2A, Canon 7A(2), Commentary to 2A.

Fla. JEAC Op. 1996-05, 2008-08, 2011-09.

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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 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.

Mark Herron, Esquire, Judicial Ethics Advisory Committee Chair, Messer Caparello, P.A., Post Office Box 1701, Tallahassee, FL 32302 or JEAC@flcourts.org.

Election Subcommittee Members:
Judge Roberto Arias, Judge Miguel de la O, Mark Herron, Esquire, Judge Matthew C. Lucas and Judge Michael Raiden.

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)
Chief Justice Charles T. Canady, Justice Liaison
John A Tomasino, Supreme Court Clerk
All Committee Members
Alexander J. Williams, General Counsel of the J.Q.C.
Melissa Hamilton, Staff Counsel

 

1. The Judicial Ethics Advisory Committee has appointed an Election Practices Subcommittee. The purpose of this subcommittee is to give immediate responses to campaign questions in instances where the normal Committee procedure would not provide a response 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, and have the same authority as an opinion of the whole Committee.