FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2012-09
Date of Issue: April 5, 2012

ISSUE ONE

Whether a judge, who, with the judge's spouse, are tenant/ defendants in a residential condominium foreclosure proceeding, must recuse himself/herself from all residential foreclosure proceedings.

ANSWER: No.

ISSUE TWO

If recusal is not required, whether a judge who, with the judge's spouse, are tenant/ defendants in a residential condominium foreclosure proceeding, must disclose that status to all residential foreclosure litigants.

ANSWER: Yes.

ISSUE THREE

If recusal is not required, and if disclosure to all residential foreclosure litigants is not required, whether a judge who, with the judge's spouse, are tenant/ defendants in a residential condominium foreclosure proceeding, must disclose that status to litigants who present motions for writs of possession or objections for the judge's consideration or to litigants in residential foreclosure cases involving tenant occupied residential properties.

ANSWER: Yes.

FACTS

The inquiring judge and the judge's spouse are tenants in a residential condominium which is being foreclosed. The mortgagee commenced foreclosure litigation on the condominium and sued them due to their status as tenants. The judge's spouse, an attorney, filed an answer and asserted as an affirmative defense a superior right to possession pursuant to a lease instituted prior to the foreclosure action.

The inquiring judge is assigned to the civil division.  The judge's docket frequently includes residential foreclosure proceedings, although most do not involve tenant occupied condominiums.  However, some do.  The judge acknowledges the possibility that post judgment issues could arise in which the plaintiff or foreclosed residential property's new owner requests a writ of possession for a foreclosed, tenant occupied property or in which a tenant objects to the foreclosed property's sale for various reasons.

    
DISCUSSION

Canon 3B(1) of Florida’s Code of Judicial Conduct provides, in pertinent part, “A judge shall hear and decide matters assigned to the judge except those in which disqualification is required.”  Canon 3E of the Code sets forth the circumstances under which disqualification is necessitated.  Canon 3E(1) of the Code states: "A judge shall disqualify himself or herself in a proceeding in which a judge's impartiality might reasonably be questioned." (Emphasis supplied.) The Commentary1 to Canon 3E(1) provides:

Under this rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply.

*        *        *

A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. The fact that the judge conveys this information does not automatically require the judge to be disqualified upon a request by either party, but the issue should be resolved on a case-by-case basis.

Canon 2 is also relevant.  It states that, "A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities." (Emphasis supplied.)  The Commentary to Canon 2 notes that "The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired." (Emphasis supplied.)  Regarding the appearance of impropriety, the Supreme Court of Florida has said:

Judges must do all that is reasonably necessary to minimize the appearance of impropriety. They must remain cognizant of the fact that even in situations where they personally believe that their judgment would not be colored, public perception may differ.

In re: Frank, 753 So. 2d 1228, 1240 (Fla. 2000).

In JEAC Opinion 11-02, this Committee considered whether a senior judge who owned residential mortgages on properties and received income from those properties was prohibited from handling mortgage foreclosure matters.  A majority of the Committee determined nothing prohibited the senior judge from handling mortgage foreclosure matters unless the judge was "placed in the unusual circumstance of personally initiating a foreclosure action against any one of the borrowers who should default on the residential mortgages. In the event that this situation arises, then the inquiring senior judge should discontinue handling mortgage foreclosure matters in which the judge's ruling on an issue reasonably could be perceived as providing the judge with persuasive authority in the judge's favor, or some other advantage, in the judge's own case."  (Emphasis supplied.)

Additionally, the opinion noted that one Committee member believed "the judge may have a duty to disclose to the parties that the judge is either involved in a foreclosure action as a mortgagee, or has previously been involved as a mortgagee, or reasonably anticipates becoming involved as a mortgagee."  Fla. JEAC Op. 11-02.  That Committee member expressed concern that a litigant or an attorney representing a mortgagor would reasonably be apprehensive "that the judge may have a bias against mortgagors."  The Committee concluded, "If the judge's disclosure reflects that the judge has had bad experiences with non-paying mortgagors, the party may very well have a reason to seek to have the judge disqualified."  Fla. JEAC Op. 11-02.

In JEAC Opinion 02-05, the Committee advised a judge in a family law division that the judge was not required to recuse himself/herself in litigation concerning children when the judge, a divorced parent of minor children, might be engaging in similar post-judgment proceedings regarding the judge’s children. The Committee observed, “In the present situation, the mere specter of pending child litigation does not require disclosure or recusal.” Fla. JEAC Op. 02-05. The Committee concluded, “In the present case, the Committee sees no requirement for a judge to disclose a personal family matter, or for the judge to automatically disqualify himself/herself based on the judge’s personal family matter. The Committee does not find that this is a situation where the judge’s impartiality might reasonably be questioned.” Fla. JEAC Op. 02-05.

Turning to the instant inquiry, the Committee believes that the judge’s impartiality in a case may not reasonably be questioned where a litigant sues to foreclose a residential mortgage and the presiding judge in the case and the judge’s spouse are currently tenants/defendants in a residential condominium mortgage foreclosure proceeding. Nevertheless, in the event the judge’s ruling on an issue in foreclosure cases before the judge reasonably could be perceived as providing the judge with persuasive authority in the judge’s favor, or some other advantage, in the judge’s own case, then the judge should recuse himself/herself from such cases.

While the judge is involved in the foreclosure litigation as a tenant/defendant, and for a reasonable time thereafter, the judge has a duty, in foreclosure proceedings assigned to the judge, to disclose the facts and circumstances of the judge’s own litigation, because such information is relevant to the parties’ consideration of whether or not the judge should be disqualified.

The Supreme Court of Florida, in In re: Frank, supra, addressed the distinction between a duty to disclose and a duty to disqualify:

Specifically, because a judge “should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification,” it appears that the standard for disclosure is lower.  In other words, a judge should disclose information in circumstances even where disqualification may not be required.

In re: Frank, 753 So. 2d 1228, 1339 (Fla. 2000).

“A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. The fact that the judge conveys this information does not automatically require the judge to be disqualified upon a request by either party, but the issue should be resolved on a case-by-case basis.” W.I. v. State, 696 So. 2d 457, 458 (Fla. 4th DCA 1997); cf., Stevens v. American Healthcare Corp., 919 So. 2d 713, 716 (Fla. 2nd DCA 2006)(where judge makes disclosure, which by itself does not require disqualification, invites parties to make a motion for disqualification, and suggests the motion will be granted, judge cannot thereafter deny timely motion based on the facts disclosed).

In JEAC Opinion 11-17, the Committee concluded a judge is required to disclose to the litigants that an attorney appearing in a case before the judge is the spouse of an attorney representing the judge in an unrelated civil matter, albeit in different firms, but the judge is not required to recuse himself/herself.  The Committee noted, "Disclosure of such information is not an admission of bias but is necessary to enable a party to make an informed decision as to whether or not to seek disqualification. The Committee has previously suggested that a reasonable period of time is from several months to one year, depending upon the unique facts and circumstances of the representation.  See Fla. JEAC Ops. 01-17, 86-09, and 93-19." 

In JEAC Opinion 01-17 the Committee first observed that a judge was disqualified from hearing cases in which a particular law firm represented a litigant. The Committee then opined that, for a reasonable time after the relationship which was the reason for the disqualification was concluded, the judge must disclose this relationship to the parties in a suit before the judge if that firm is representing one of the parties.  The Committee observed that disclosure is mandatory where the judge believes the information is relevant to the question of disqualification, and the Committee noted that disqualification is required if the judge's impartiality might reasonably be questioned.  Fla. JEAC Op. 01-17

REFERENCES

In re: Frank, 753 So. 2d 1228 (Fla. 2000); Stevens v. American Healthcare Corp., 919 So. 2d 713, 716 (Fla. 2nd DCA 2006) W.I. v. State, 696 So. 2d 457, 458 (Fla. 4th DCA 1997).
Fla. Code Jud. Conduct, Canons 2, 3B(1), and 3E(1)
Fla. JEAC Ops. 11-17, 11-02, 02-05, 01-17, 93-19, and 86-09.

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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 a 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. See 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. See Id.

The Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law which governs any proceeding over which the inquiring judge may preside. The Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with the issue of whether the proposed conduct violates a provision of that Code.

For further information, contact: Patricia E. Lowry, Esquire, Chair, Judicial Ethics Advisory Committee, Squire, Sanders & Dempsey (US) LLP, 777 South Flagler Drive, Suite 1900 West, West Palm Beach, Florida 33401-6161.

Participating Members:
Participating Members: Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esq., Judge Lisa Davidson, Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa, Patricia E. Lowry, Esquire, Judge José Rodriguez, Judge C. McFerrin Smith III, Judge Richard R. Townsend, Judge Dorothy Vaccaro.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
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

 

1. “The text of the Canons and Sections… is authoritative. The Commentary, by explanation and example, provides guidance with respect to the purpose and meaning of the Canons and Sections. The Commentary is not intended as a statement of additional rules.” Preamble, Fla. Code Jud. Conduct.