Can judges serve in the Florida State Guard?
A judge may serve as a volunteer in the Florida State Guard, with limits, according to the Judicial Ethics Advisory Committee.
The ethics panel acted April 16 in Opinion Number: 2025-09, but not without dissent.
The Florida State Guard (FSG) was re-established in 2022 “to protect and defend the people of Florida from all threats to public safety and to augment all existing state and local agencies [and is] activated only by the Governor, and is at all times under the final command and control of the Governor as commander in chief of all military and guard forces of the state.” The members of the guard are considered volunteers.
Canon 5A of the Code of Judicial Conduct provides:
A judge shall conduct all of the judge’s extra-judicial activities so that they do not:
- cast reasonable doubt on the judge’s capacity to act impartially as a judge;
- undermine the judge’s independence, integrity, or impartiality;
- demean the judicial office;
- interfere with the proper performance of judicial duties;
- lead to frequent disqualification of the judge; or
- appear to a reasonable person to be coercive.
As the commentary to Canon 5A states: “Complete separation of a judge from extra-judicial activities is neither possible nor wise…. [and] judges are encouraged to participate in extrajudicial community activities.”
Recent Florida State Guard deployments have been to support emergency management, aid in public safety operations, and to erect fencing at the southern border of Texas.
“As the FSG may be mobilized by the Governor for a broad range of assignments, the judge must avoid participating in those that could create an appearance that the judge’s impartiality was compromised,” the panel’s majority said. “The Committee bases this opinion upon the inquiring judge’s assurance that a member of the FSG may decline an assignment. For example, delivering supplies after a natural disaster would not cause the same concern as enforcing a curfew while patrolling during a time of civil riots. In the latter scenario the judge may be a witness to activity that could lead to recusal or disqualification if the judge were become a witness to activity that could come before the court over which the judge presides.”
Because the FSG can be activated to provide emergency aid to civil authorities, the participation of the judge could potentially result in violations of Canons 4 and 5A, the committee said, noting that in JEAC Op. 91-31, the committee was asked if a criminal court judge could ride as an observer with law enforcement on an infrequent basis. The majority felt that such activity was permissible if it was done on a limited basis and the judge disqualified himself or herself from any criminal case involving events that he or she witnessed. However, two committee members felt this behavior should be avoided, as it could cast doubt on the judge’s impartiality, could interfere with judicial duties, and might detract from the dignity of the office.
“Likewise, having a judge ‘execute the laws of the state’ when volunteering with the FSG and then adjudicating matters involving those same laws when serving as a judge would undermine the independence and impartiality of the judge,” the committee said, adding that, for the same reason, volunteer service within the FSG’s “specialized unit” — which is vested with the authority to bear arms, detect, and apprehend while activated — must be declined by the inquiring judge if they are requested to serve in that unit.
The committee also advised judges to consider the time required for participation in extra-judicial activities and service in the FSG may require the judge to spend a considerable amount of time away from the court, during business hours. Excessive time commitments to extra-judicial activities may potentially violate not only Canon 5A(4), which states that a judge shall conduct quasi-judicial activities so that they do not interfere with the proper performance of judicial duties, but also Article V, Section 13 of the Florida Constitution, which states that all “judges shall devote full time to their judicial duties.”
Three members of the committee dissented, finding there would be a conflict with the canons for a judge to also serve as a Florida State Guard for the following reasons:
1) Doing so would create a conflict with judicial duties in that having a judge “execute the laws of the state” while also potentially adjudicating matters involving those same laws as a judge would undermine the independence and impartiality of the judge. These actions could also cast doubt on the judge’s impartiality.
2) There was further concern that Florida State Guard members do not meet the “military officer” exemption requirements of Article II, Section 5 and its prohibition on holding more than one office in the state.
3) Finally, if the judge is activated during a state of emergency, the deployment would interfere with judicial duties. Excessive time commitments to extra-judicial activities during work hours would violate Article V, Section 13 of the Florida Constitution, which states that all “judges shall devote full time to their judicial duties.”
The three members who dissented also said this opinion is in conflict with Fla. JEAC Op. 06-29, where a judge was advised that service as a Trooper in the Florida Highway Patrol Auxiliary, even though the judge’s activities may be restricted to administrative matters, was prohibited.
The Judicial Ethics Advisory Committee is charged with rendering advisory opinions to judges and judicial candidates on the application of the Code of Judicial Conduct to their circumstances. While judges and candidates may cite the opinion as evidence of good faith, the opinions are not binding on the Judicial Qualifications Commission.
