PER CURIAM.
The Traffic Court Review Committee of this Court submitted proposed amendments to the Rules of Practice and Procedure For Traffic Courts in order to implement chapter 89-337, Laws of Florida, which calls for the creation of a pilot program of civil traffic infraction hearing officers or magistrates. The Florida Bar Traffic Court Rules Committee agreed with the proposals with the exception of amendments relating to rules 6.040, 6.080, 6.630(d)(1), and 6.630(i), which it modified.
The Florida Bar Board of Governors endorsed the proposals submitted by the Rules Committee and in addition recommended a modification to proposed rule 6.630(f), which concerns the professional qualifications for traffic magistrates. Under the Bar's proposed rule 6.630(f), magistrates must be members of The Florida Bar for a minimum of three years. The Review Committee agreed with all the Bar's additional modifications, with the exception of that relating to rule 6.630(f).
We approve the proposals submitted by the Bar, with the exception of proposed rules 6.630(i) and (f). Chapter 89-337, section 5, Laws of Florida, establishes no minimum period of membership in the Bar:
Section 5. Qualifications. — Applicants for the position of magistrate of the civil traffic court shall be members in good standing of The Florida Bar and shall have completed a 40-hour education and training program which has been approved by the Florida Supreme Court. Thereafter, magistrates shall complete an approved 10-hour continuing education program annually. (Underlining omitted.)
We conclude that the qualifications constitute a matter of substantive law within the exclusive authority of the legislature. The perceived ill to be remedied by the Bar's proposal, i.e., the use of inexperienced lawyers as magistrates, is addressed by the sound discretion of the chief judge in the appointment of magistrates. Accordingly, we approve the version of rule 6.630(f) proposed by the Review Committee, which sets no required period of Bar membership.
Chapter 89-337, section 7, Laws of Florida, further provides that traffic magistrates shall not be subject to the Code of Judicial Conduct:
Section 7. Code of ethics. — Magistrates 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 be a conflict or give the appearance of impropriety. Whether full time or part time, magistrates shall be prohibited from representing clients or practicing before any other magistrate of a civil traffic court or from representing any client appealing the decision of any other magistrate. (Underlining omitted.)
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:
COMPLIANCE WITH THE CODE OF JUDICIAL CONDUCT
Anyone, whether or not a lawyer, who is an officer of a judicial system performing judicial functions, including an officer such as a referee in bankruptcy, special master, court commissioner, or magistrate, is a judge for the purpose of this Code. All judges should comply with this Code except as provided below.
A. Part-time Judge. A part-time judge is a judge who serves on a continuing or periodic basis, but is permitted by law to devote time to some other profession or occupation and whose compensation for that reason is less than that of a full-time judge.
A part-time judge:
(1) is not required to comply with Canon 5C(2), D, E, F, and G, and Canon 6A(3);
(2) should not practice law in the court on which he serves or in any court subject to the appellate jurisdiction of the court on which he serves, or act as a lawyer in a proceeding in which he has served as a judge or in any other proceeding related thereto.
Fla.Bar Code of Jud.Conduct, Compliance (emphasis added). For practical reasons, we conclude that traffic magistrates are exempt from the requirements of Canon 6B and C and the first portion of provision (A)(2) of the Compliance section of the Code, noted above. We hold therefore that traffic magistrates may practice in the county courts in which they officiate but are prohibited from representing clients or practicing before any official in any county court traffic matter or from representing any client appealing any county court traffic decision. We have modified the Bar's proposed rule 6.630(i) to reflect the foregoing.
Appended is the text of the amended portions of the rules. The amended rules become effective upon filing of this opinion. The committee comments (reasons for change) are included for explanation and guidance only and are not adopted as an official part of the rules.
It is so ordered.
McDONALD, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur.
OVERTON, J., concurs in part and dissents in part with an opinion, in which EHRLICH, C.J., concurs. I. Purpose and Construction, and Transition Rule 6.010 Scope PRESENT RULE PROPOSED RULE REASON FOR CHANGE and, if applicable to civil traffic infraction hearing officers appointed as traffic magistrates. whether by a county court judge or civil traffic infraction hearing officer appointed as a traffic magistrate. II. General Provisions Rule 6.040 Definitions PRESENT RULE PROPOSED RULE REASON FOR CHANGE thereof official any civil traffic hearing officer program and the traffic magistrate thereof. elected or appointed by the Governor official's traffic magistrate's or traffic 20.24magistrate 20.24or of of or 318.19 318.19"Traffic magistrate" shall mean an official appointed under the civil traffic infraction hearing officer system who shall have the power to adjudicate civil traffic infractions subject to certain exceptions. Rule 6.080 Improper Disposition of Traffic Ticket PRESENT RULE PROPOSED RULE REASON FOR CHANGE However, a traffic magistrate shall not have the power to hold any person in contempt of court, but shall be permitted to file a verified motion for order of contempt before any state trial court judge of the same county in which the alleged contempt occurred. Such matter shall be handled as an indirect contempt of court pursuant to the provisions of Florida Rule of Criminal Procedure 3.840. Rule 6.100 Traffic Violations Bureau PRESENT RULE PROPOSED RULE REASON FOR CHANGE 318.14 318.14 318.18 318.18judges of the Rule 6.130 Case Consolidation PRESENT RULE PROPOSED RULE REASON FOR CHANGE However, in no case shall a traffic magistrate hear a criminal traffic case or a case involving a civil traffic infraction issued in conjunction with a criminal traffic offense. 318.14 318.14 IV. Traffic Infractions Rule 6.630 Civil Traffic Infraction Hearing Officer Program; Traffic Magistrates (Transition Rule) PRESENT RULE PROPOSED RULE REASON FOR CHANGE Effective October 1, 1989, pursuant to the authority of Article V, Section 1, Florida Constitution, and Chapter 89-337, Laws of Florida, a civil traffic infractions hearing officer program is authorized. Pursuant to the authority of Chapter 89-337, Laws of Florida, and Article V, Section 2, Florida Constitution, this Court adopts the following rules and procedure for the pilot Civil Traffic Infraction Hearing Officer Program designed to test the feasibility of establishing a statewide program: Any county in which the civil traffic infraction caseload for the immediately preceding calendar year was in excess of 20,000 hearings shall be eligible to participate in the pilot Civil Traffic Infraction Hearing Officer Program. Any county electing to participate in the program shall be subject to the supervision of this Court and shall assist in the feasibility study. The decision on whether to participate shall be made by the chief judge. The appointment of such hearing officers, to be designated "traffic magistrates," shall be made by the chief judge, after consultation with the county affected, and be approved by the Chief Justice. Once approval has been granted by the Chief Justice, the traffic magistrates shall serve at the will of the chief judge. Traffic magistrates shall have the power to accept pleas from offenders, decide whether an alleged offender has committed an infraction, and adjudicate or withhold adjudication in the same manner as a county court judge. However, a traffic magistrate shall not: Have the power to hold any person in Rule 6.080. contempt of court, but shall be permitted to file a verified motion for order of contempt with an appropriate state trial court judge pursuant to Florida Rule of Criminal Procedure 3.840; Hear a case involving an accident resulting in injury or property damage; or Hear a criminal traffic offense case or a case involving a civil traffic infraction issued in conjunction with a criminal traffic offense. Appeals from decisions of a traffic magistrate shall be to circuit court pursuant to the relevant provisions of the Florida Rules of Appellate Procedure in the same manner as appeals from the county court, except that traffic magistrates shall not have the power to certify questions to district courts of appeal. The appellant shall be responsible for producing the record for such appeal. A traffic magistrate shall be a member in good standing of the Florida Bar. Traffic magistrates shall be required to complete training approved by the Supreme Court. Traffic magistrates may serve either full time or part time at the discretion of the chief judge. All traffic magistrates 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, which prohibits a part-time judge from practicing in the court on which he serves or in any court subject to the appellate jurisdiction of the court on which he serves. Whether full time or part time, traffic magistrates shall be prohibited from representing clients or practicing before any official in any county court traffic matter or from representing any client appealing any county court traffic decision. In any county electing to establish a pilot program the chief judge shall develop a plan for its implementation and shall submit the plan to the Office of the State Courts Administrator. Funds for the pilot program are to be used for hearing officer program salaries, provided that the traffic magistrates shall be paid no more than $20 per hour, and other necessary expenses, such as training, office rental, furniture, and administrative staff salaries. Any county electing to establish a pilot program shall provide the funds necessary to operate the program. Traffic magistrates shall not wear robes. l The evaluation of the pilot project shall be conducted by the Office of State Courts Administrator. All court-related personnel involved in the program shall assist in the feasibility study.
(a) These Rules govern (a) These Rules govern The statutory practice and procedure practice and procedure authorization of civil in any traffic case and any traffic case and traffic infraction specifically apply to specifically apply to hearing officers by practice and procedure practice and procedure Chapter 89-337, Laws in County Courts. in County Courts, of Florida, necessitates reference to such hearing (b) The rules under officers (statutorily Part III of these rules referred to apply to all criminal interchangeably as traffic offenses not magistrates) in the subject to the (b) The rules under part traffic court rules. provisions of Chapter III of these rules apply Reference in the 318, Florida Statutes, to all criminal traffic proposed rule to whether prosecuted in offenses not subject to traffic magistrate the name of the state the provision of Chapter rather than merely or any subdivision of 318, Florida Statutes, magistrate is designed it. whether prosecuted in the to distinguish the name of the state or any former from other (c) The rules under subdivision of it. magistrates especially Part IV of these rules in relation to the apply only to traffic (c) The rules under Part applicability of the infractions governed by IV of these rules apply Code of Judicial Chapter 318, Florida only to traffic Conduct (see section Statutes, adjudicated infractions governed by of code entitled in a court of the Chapter 318, Florida "Compliance with the state. Statutes, adjudicated in Code of Judicial a court of the state, Conduct"), thereby avoiding the possibility of conflict with authorizing statute. The following terms The following terms In order to shall have the meaning shall have the meaning accommodate both the respectively ascribed respectively ascribed to court and hearing to them: them: officer program as alternative sources for "Court" means any "Court" means any the adjudication of county court to which county court to which civil infractions, the these rules apply and these rules apply and the definition of court has the judge or official. judge or been expanded. The term judge has been "Judge" means any redefined to limit its judicial officer reference to only authorized by law to county court judges and preside over a court the reference to to which these rules "Judge" means any official has been apply. judicial officer expanded to include the traffic magistrate. In "Law" includes the authorized by addition, a separate law to preside over a definition for traffic court to which these rules magistrate has been constitutions of the apply. added. United States, State of Florida, statutes, ordinances, judicial decisions and these rules. "Law" includes the constitutions of the United States, State of Florida, statutes, ordinances, judicial "Oath" includes decisions and these affirmations. rules. "Clerk" means clerk "Oath" includes of the initiating court affirmations. or trial court. "Clerk" means clerk of "Open Court" shall the initiating court or mean in a courtroom as trial court. provided or judge's or official's chambers of suitable judicial decorum. "Prosecutor" means "Open Court" shall mean any attorney who in a courtroom as provided represents a state, or judge's or county, city, town or village in the chambers of suitable prosecution of a judicial decorum. defendant for the violation of a statute "Prosecutor" means any or ordinance. attorney who represents a state, county, city, town or "Criminal Traffic village in the prosecution Offense" means a of a defendant for the violation of a statute violation of statute or or ordinance governing ordinance. traffic not subject to the provisions of "Criminal Traffic Chapter 318, Florida Offense" means a violation Statutes, within the of a statute or ordinance jurisdiction of a governing traffic not court to which these subject to the provisions rules apply. of Chapter 318, Florida Statutes, within the "Review Committee" jurisdiction of a means the committee court to which these rules appointed by the apply. Supreme Court to study and consider the "Review Committee" means application and the committee appointed by administration of the Supreme Court to study these rules for and consider the traffic courts in application and Florida and which administration of these shall make rules for traffic recommendations to the courts in Florida and Supreme Court for which shall make changes in said rules. recommendations to the Supreme Court for "Warrant" includes changes in said rules. capias. "Warrant" includes "Infraction" means a capias. non-criminal traffic violation which is not punishable by incarceration and for which there is no right to a trial by jury or a right to court appointed counsel. "Official" means any "Infraction" means a state judge authorized non-criminal traffic by law to preside over violation which is not a court or at a hearing punishable by adjudicating traffic incarceration and for infractions. which there is no right to a trial by jury or a "Department" shall right to court appointed mean the Department of counsel. Highway Safety and Motor Vehicles, "Official" means any defined in section state judge , Florida authorized by Statutes, or the law to preside over a appropriate division court or at a hearing thereof. adjudicating traffic infractions. "Officer" means any enforcement officer "Department" shall mean charged with and the Department of Highway acting under authority Safety and Motor Vehicles, to arrest or cite defined in section , persons suspected or Florida Statutes, or the known to be violating appropriate division the statutes or thereof. ordinances regulating the operation or "Officer" means any equipment of vehicles, enforcement officer or the regulation of charged with and acting traffic. under authority to arrest or cite persons suspected "Infraction Requiring or known to be violating a Mandatory Hearing" the statutes or ordinances refers to an infraction regulating the operation listed in section equipment , Florida vehicles, or the Statutes, which regulation of traffic. requires an appearance before a designated "Infraction Requiring a official at the time Mandatory Hearing" refers and location of the to an infraction listed in scheduled hearing. section , Florida Statutes, which requires an appearance before a designated official at the time and location of the scheduled hearing. Any person who Any person who solicits This rule expands the solicits or aids in the or aids in the disposition statutory mandate of of a disposition of a traffic complaint or Chapter 89-337, traffic complaint summons in any manner section 3(1) which or summons in any other than that authorized deprives magistrates manner other than that by the court or shall of the power of authorized by the court willfully violate any contempt with respect or shall willfully provision of these rules to defendants only. violate any provision shall be proceeded against The rule extends the of these rules shall be for criminal contempt (in prohibition of a proceeded against for the manner provided in magistrate's direct criminal contempt (in these rules). contempt powers to the manner provided in cover any person. The these rules). The Committee expressed concern that if the contempt prohibition were limited to only the defendant, it might be assumed that such powers existed with respect to others such as attorneys, court personnel and witnesses. This rule also incorporates reference to the provisions of Florida Procedure 3.480 by specifying that magistrates may initiate indirect contempt proceedings by filing a verified motion for order of contempt pursuant to the Rule of Criminal Procedure. (a) A traffic (a) A traffic violations This amendment was violations bureau shall bureau shall be established proposed to avoid be established in each in each county court by possible confusion as county court by administrative order of to any authority administrative order the chief judge of the traffic magistrates of the chief judge of circuit in which the county could have in relation the circuit in which court is located. to the operation of the county court is The function of the bureau traffic violations located. The function shall be to accept bureaus. of the bureau shall be appearances, waivers of to accept appearances, non-criminal hearings, waivers of non-criminal admissions, payment of hearings, admissions, civil penalties for traffic payment of civil infractions not requiring penalties for traffic a mandatory hearing, and infractions not nolo contendere pleas requiring a mandatory pursuant to the authority hearing, and nolo of section (9) and contendere pleas (10), Florida Statutes. pursuant to the Where any person's authority of section sentence for a criminal (9) and (10), traffic offense or penalty Florida Statutes. for a traffic infraction Where any person's requiring a mandatory sentence for a hearing or a traffic criminal traffic infraction where the offense or penalty person elects to appear for a traffic before an official infraction requiring includes the payment of a mandatory hearing a fine or civil penalty, or a traffic payment may be made before infraction where the the bureau. The bureau may person elects to also accept appearances, appear before an official waivers of hearings, includes the payment admissions and payment of of a fine or civil civil penalties as penalty, payment may provided in section be made before the , Florida bureau. The bureau may Statutes, in traffic also accept infraction cases where appearances, waivers of the driver originally hearings, admissions elected, but was not and payment of civil required, to appear penalties as provided before an official prior in section , to the date of the Florida Statutes, in hearing. The bureau shall traffic infraction act under the direction cases where the driver and control of the originally elected, but court. was not required, to appear before an official prior to the date of the hearing. The bureau shall act under the direction and control of the court. Where a person is Where a person is cited The rule on case cited for the commission for the commission of both consolidation is of both a criminal a criminal and a civil proposed to be amended and a civil traffic traffic violation or both to include language violation or both a a civil traffic infraction from Chapter 89-337, civil traffic infraction requiring a mandatory Laws of Florida, which requiring a mandatory hearing and a civil prohibits traffic hearing and a civil traffic infraction not magistrates from traffic infraction not requiring a hearing the hearing civil requiring a hearing the cases may be heard infractions arising cases may be heard simultaneously if they out of same facts as simultaneously if they arose out of the same criminal traffic arose out of the same set of facts. offenses. set of facts. Under any of these circumstances the civil traffic infraction shall be treated as continued for the purpose of reporting to the Department. Prior to the date of the Under any of these scheduled hearing or circumstances the civil trial, an alleged traffic infraction shall offender may dispose of be treated as continued any non-mandatory civil for the purpose of traffic infraction in reporting to the the manner provided by Department. Prior to the these rules and section date of the scheduled , Florida hearing or trial, an Statutes. alleged offender may dispose of any non-mandatory civil traffic infraction in the manner provided by these rules and section , Florida Statutes. The rule attempts to incorporate relevant provisions of Chapter 89-337, Laws of Florida, with minor modifications. (a) (b) The provision in subsection (c) that the traffic magistrate shall serve at the will of the chief judge is implicit in Chapter 89-337, and is believed to be a good policy since it makes irrelevant (c) consideration of the necessity of any involvement by the Judicial Qualifications Commission. (d) (1) See Committee Note concerning In relation to subsection (e) on appeals, the subcommittee believes (2) that the addition of the language on the certifications to district courts, while making an obvious (3) point, would avoid any possible confusion. It was also the concensus that there would be no need to recommend amendments to the Florida Rules of Appellate Procedure since Rules 9.030(b)(4)(A) and 9.030(c)(1)(A) of those rules would appear to cover the matter adequately without further amendment. (e) Subsection (g) goes into less detail concerning the actual length of training (40 hours preservice/10 hours continuing) required by Chapter 89-337. A special plan for such training will be provided separately, including a recommendation for the waiver of such training for recently retired county court judges. (f) (g) This rule expands the statutory prohibition of Chapter 89-337, section 7, which prohibits traffic magistrates from practicing before other civil (h) traffic magistrates and handling traffic appeals. The Committee expressed concern that a limited prohibition extending only (i) to practice before other magistrates might be read as condoning magistrate practice in traffic cases in front of county court judges. Given the contemplated relationship between county court judges and magistrates in education, training and professional duties, such practice would give the appearance of conflict and should be prohibited. (j) In relation to subsection (k), it was the opinion of the subcommittee that the wearing of robes might lead to confusion and interfere with the informal setting of the hearings. (k) ()