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 (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, and, if applicable to necessitates reference civil traffic infraction to such hearing (b) The rules under hearing officers appointed officers (statutorily Part III of these rules as traffic magistrates. 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 whether by a county court avoiding the judge or civil traffic possibility of infraction hearing officer conflict with appointed as a traffic authorizing statute. magistrate. II. General Provisions Rule 6.040 Definitions PRESENT RULE PROPOSED RULE REASON FOR CHANGE 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 thereof or official been expanded. The term any civil traffic hearing judge has been "Judge" means any officer program and the redefined to limit its judicial officer traffic magistrate reference to only authorized by law to thereof. county court judges and preside over a court the reference to to which these rules "Judge" means any official has been apply. judicial officer elected expanded to include the or appointed by the traffic magistrate. In "Law" includes the Governor 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 official's county, city, town or traffic magistrate's 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 or traffic 20.24, Florida magistrate 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 20.24, 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 or of equipment of or 318.19, 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 318.19, Florida Statutes, which requires an appearance before a designated official at the time and location of the scheduled hearing. "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 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). However, a contempt powers to the manner provided in traffic magistrate shall cover any person. The these rules). not have the power to hold The Committee expressed any person in contempt of concern that if the court, but shall be contempt prohibition permitted to file a were limited to only verified motion for order the defendant, it might of contempt before any be assumed that such state trial court judge powers existed with of the same county in respect to others such which the alleged contempt as attorneys, court occurred. Such matter personnel and shall be handled as an witnesses. This rule indirect contempt of court also incorporates pursuant to the provisions reference to the of Florida Rule of provisions of Florida Criminal Procedure 3.840. 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. Rule 6.100 Traffic Violations Bureau PRESENT RULE PROPOSED RULE REASON FOR CHANGE (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 318.14(9) and contendere pleas (10), Florida Statutes. pursuant to the Where any person's authority of section sentence for a criminal 318.14(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 318.18, 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 318.18, 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 judges originally elected, but of the 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. Rule 6.130 Case Consolidation PRESENT RULE PROPOSED RULE REASON FOR CHANGE 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. However, in no case Under any of these shall a traffic magistrate circumstances the civil hear a criminal traffic traffic infraction case or a case involving a shall be treated as civil traffic infraction continued for the issued in conjunction with purpose of reporting to a criminal traffic offense. 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 318.14, 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 318.14, Florida Statutes. 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, The rule attempts to 1989, pursuant to the incorporate relevant authority of Article V, provisions of Chapter Section 1, Florida 89-337, Laws of Constitution, and Chapter Florida, with minor 89-337, Laws of Florida, a modifications. 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: (a) 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. (b) Any county electing The provision in to participate in the subsection (c) that program shall be subject the traffic magistrate to the supervision of this shall serve at the will Court and shall assist in of the chief judge is the feasibility study. The implicit in Chapter decision on whether to 89-337, and is believed participate shall be made to be a good policy by the chief judge. since it makes irrelevant (c) The appointment of consideration of the such hearing officers, to necessity of any be designated "traffic involvement by the magistrates," shall be made Judicial Qualifications by the chief judge, after Commission. 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. (d) 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: (1) Have the power See Committee Note to hold any person in concerning 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 In relation to Florida Rule of Criminal subsection (e) on Procedure 3.840; appeals, the subcommittee believes (2) Hear a case that the addition of involving an accident the language on the resulting in injury or certifications to property damage; or district courts, while making an obvious (3) Hear a criminal point, would avoid any traffic offense case or a possible confusion. It case involving a civil was also the concensus traffic infraction issued that there would be no in conjunction with a need to recommend criminal traffic offense. 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) Appeals from Subsection (g) goes decisions of a traffic into less detail magistrate shall be to concerning the actual circuit court pursuant length of training to the relevant (40 hours provisions of the Florida preservice/10 hours Rules of Appellate continuing) required Procedure in the same by Chapter 89-337. A manner as appeals from special plan for such the county court, except training will be that traffic magistrates provided separately, shall not have the power including a to certify questions to recommendation for the district courts of waiver of such appeal. The appellant training for recently shall be responsible for retired county court producing the record for judges. such appeal. (f) A traffic magistrate shall be a member in good standing of the Florida Bar. (g) Traffic magistrates This rule expands the shall be required to statutory prohibition complete training approved of Chapter 89-337, by the Supreme Court. section 7, which prohibits traffic magistrates from practicing before other civil (h) Traffic magistrates traffic magistrates may serve either full time and handling traffic or part time at the appeals. The Committee discretion of the chief expressed concern that judge. a limited prohibition extending only (i) All traffic to practice before magistrates shall be other magistrates might subject to the Code be read as condoning of Judicial Conduct in the magistrate practice in same manner as part-time traffic cases in front judges, except that they of county court judges. shall be exempt from Canon Given the contemplated 6B and C and the first relationship between portion of provision (A)(2) county court judges of the Compliance section and magistrates in of the Code, which education, training prohibits a part-time and professional judge from practicing in duties, such practice the court on which he would give the serves or in any court appearance of conflict subject to the appellate and should be jurisdiction of the court prohibited. 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. (j) In any county In relation to electing to establish a subsection (k), it was pilot program the chief the opinion of the judge shall develop a subcommittee that the plan for its wearing of robes implementation and shall might lead to confusion submit the plan to the and interfere with the Office of the State Courts informal setting of the Administrator. Funds for hearings. 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. (k) 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.