FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2008-04
Date of Issue: February 15, 2008

ISSUE

When a judge has entered an order of recusal because of a “tumultuous” relationship between the judge and an assistant state attorney, whether the judge should remain on cases involving other assistant state attorneys from the same office?

ANSWER: Yes.

FACTS

The Inquiring Judge was assigned to a two-year term in a criminal division. During that assignment, the relationship between the Judge and one assistant state attorney became difficult. After the term in the criminal division was completed, the Judge was assigned to a civil division.

In one civil case, a litigant, acting through counsel, filed a “Motion to Recuse,” alleging that the litigant was married to the assistant state attorney in question and that the poor relationship between the Judge and the litigant’s spouse could prevent the litigant from getting a fair trial or hearing, due to the court’s alleged bias. The motion specifically alleged that the relationship between the Judge and the assistant state attorney “was tumultuous and resulted in numerous verbal confrontations and that there may be ill-will between the two.”

The Judge entered an “Order of Recusal” writing, “I …. hereby recuse myself from the above styled cause.”

Almost three weeks after the recusal order was entered, the Judge sent a letter to the State Attorney, stating:

Enclosed please find a copy of a ­Motion to Recuse and the resulting Order of Recusal. I would direct your attention to paragraph three and four of the motion. I am sure you can appreciate the obvious significance of this filing…. I am advising you that I am currently set as the duty judge for the following weeks in 2008…. I would ask that you make sure that [assistant state attorney name omitted] is not assigned to appear before the duty judge during those weeks… Finally, due to the magnitude of the allegations contained in the Motion to Recuse, you are advised that I will in the future inquire of the appropriate authorities to determine whether further separation between myself as judge and the State Attorney’s Office is required.

DISCUSSION

It is important to note that the Inquiring Judge entered an Order of Recusal, not an Order Granting a Motion for Disqualification. There is a significant difference. Disqualification is the formal procedure described in Chapter 38, Florida Statutes, Rule 2.330, Florida Rules of Judicial Administration, and Canon 3E of the Code of Judicial Conduct. Recusal, not formally recognized by current Florida statutes or Rules of Court, is a common law procedure for a judge to remove himself/herself from a particular case. Here, the Order of Recusal applied only to the civil case in which it was filed and did not automatically impact the Judge's relationship with the State Attorney's office.

However, the Judge's letter to the State Attorney suggested that a simple recusal may have become an institutional problem between the Judge and the State Attorney.  Even if such a result was not intended, the Judge appears to express personal feelings and to indirectly admit bias against the assistant state attorney by asking that this particular attorney not be assigned to appear on the Judge’s duty assignment dates.

Assuming the Judge’s letter does admit some bias against the one assistant state attorney, the issue for this Inquiry is limited: Do the recusal order and the letter, products of the judge’s relationship with one assistant state attorney, mandate a recusal or disqualification regarding all assistant state attorneys? This Committee thinks not. Neither the recusal order, nor the letter suggests any bias against other assistant state attorneys or against the elected State Attorney. This Committee has reviewed similar conflict issues when a judge's brother was an assistant state attorney and when a judge’s relative was an assistant public defender. See Fla. JEAC Ops. 01-05 and Fla. JEAC 77-04 as to public defenders, and Fla. JEAC Op. 77-12 as to state attorneys.

The Committee advises the Inquiring Judge to carefully review recusal or disqualification motions that might be legally insufficient. While it is tempting to remove one’s self from a case to avoid a contentious judge/attorney relationship, unintended, collateral consequences can result from such orders.

Canon 3E requires a judge to disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. However, Canon 3B(1) equally requires the judge to hear and decide matters assigned to the judge, except those in which disqualification is required. [Emphasis supplied.]  Thus, each judge has a duty to perform his or her duties without unnecessary disqualification, and legally insufficient motions should be denied. Canon 3B(1) recognizes the impact upon other litigants and other judges of unnecessary recusals and the danger of judge-shopping.

Finally, the practice of writing a letter following the entry of a recusal order appears to be discouraged by the provisions of Rule 2.330, Florida Rules of Judicial Administration. In disqualification proceedings, this rule discourages extended comment under most conceivable circumstances.

On the facts stated in this Inquiry, the Inquiring Judge can properly preside over cases involving assistant state attorneys not involved in the recusal order.

REFERENCES

Fla. Code Jud. Conduct, Canons 3B(1), 3E.
Fla. JEAC Ops. 77-04, 77-12, 01-05.
Fla. R. Jud. Admin. 2.330.
Ch. 38, Fla. Stat. (2006).

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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 the judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and 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 Qualifications 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 Judge Lisa Davidson, Chair, Judicial Ethics Advisory Committee, The Moore Justice  Center, 2825 Judge Fran Jamieson Way, Viera, FL 32940.

Participating Members:
Judge Robert T. Benton, II, Judge Michael Raiden, Judge Lisa Davidson, Judge Kerry I. Evander, Judge McFerrin Smith, Judge Leslie B. Rothenberg, Judge Richard R. Townsend, Judge Dorothy Vaccaro, Judge Jose Rodriguez, Judge T. Michael Jones, Marjorie Gadarian Graham, Esquire & Patricia E. Lowry, Esquire.


Copies furnished to:
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator
Inquiring Judge (Name of inquiring judge deleted from this copy)