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