FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2016-04
Date of Issue: April 14, 2016

ISSUES

1. Whether the inquiring judge must recuse himself or herself from all Engle Progeny cases assigned to the inquiring judge’s trial division where a member of the inquiring judge’s family brought an Engle Progeny suit against a tobacco company defendant within the same judicial circuit but before another trial judge?

ANSWER: No.

2. If the inquiring judge does not have to recuse from all pending Engle Progeny cases, would it be mandatory for the inquiring judge to recuse from all cases involving the same lawyers, tobacco company, or litigants involved in the judge’s family member’s Engle Progeny case?

ANSWER: No.

3. If recusal is not mandatory, is recusal nevertheless prudent?

ANSWER: Only if the inquiring judge determines that the judge has a personal bias or prejudice.

4. Is disclosure required in all Engle Progeny cases assigned to the inquiring judge’s division?

ANSWER: Yes.

5. For what period of time should the inquiring judge make a disclosure?

ANSWER: Until no reasonable person would consider the information relevant to a determination of the judge’s impartiality.

 

FACTS

The inquiring judge is a circuit judge assigned to the circuit’s civil division that includes presiding over Engle Progeny cases. Engle Progeny lawsuits reference the Florida Supreme Court’s decision in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), where the ruling allowed Florida smokers who were members of the class to file lawsuits of his or her own on an individual basis and use the liability findings from the class action trial. "Engle Progeny" lawsuits stem from the Engle case filed in 1994, when six Florida smokers, including Dr. Howard A. Engle, filed a class action suit alleging that members of the class estimated at over 100,000 Florida smokers had been injured by cigarette usage by the tobacco industry.

The inquiring judge learned that in 2008 a late uncle, as the personal representative of the inquiring judge’s grandfather’s estate, filed an Engle Progeny case regarding the grandfather’s death. (Hereinafter, “2008 case.”) The 2008 case was filed within the inquiring judge’s circuit, assigned to another circuit judge and ultimately dismissed as being time-barred in 2016. The inquiring judge was not a beneficiary and there was no recovery by the estate. The inquiring judge was not aware of the case while it was pending, but learned of the family’s 2008 case when it was dismissed in 2016.

In 2014, the inquiring judge presided over one Engle Progeny trial which is final and disposed, and another in 2015 which is currently on appeal. The inquiring judge will preside over a third Engle Progeny case that will be proceeding to trial in 2016. The inquiring judge will be assigned future Engle Progeny cases as part of the assigned case load.

 

DISCUSSION

The issues raised by the inquiring judge are addressed by the Florida Code of Judicial Conduct, Canon 3: “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .” Fla. Code Jud. Conduct, Canon 3E(1). “The test is whether a disinterested person aware of the relevant facts would reasonably question the judge’s impartiality.” Fla. JEAC Op. 92-39.

The Florida Supreme Court in In Re: Frank, 753 So. 2d 1228, 1240 (Fla. 2000), determined that in making decisions regarding disqualification: "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."

Judicial Canons 3E(1) and 3E(1)(d) govern disclosure, and Judicial Canon 3E(1)(d)(ii) governs disqualification. Disclosure differs from disqualification, although there may be overlapping considerations.

A judge must disclose a familial relationship whenever the family members or their lawyers appear before the judge. See Fla. JEAC Op. 04-01. Florida Code of Judicial Conduct, Canon 3E(1)(d) provides in pertinent part:

E. Disqualification.

(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

(d) the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person . . . .

The Code of Judicial Conduct defines "third degree of relationship" to include: great- grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, or niece. The third degree of relationship test would, for example, disqualify a presiding judge if his or his spouse's father, grandfather, uncle, brother, or niece's husband were a party or lawyer in the proceeding. In Re: The Florida Bar - Code of Judicial Conduct, 281 So. 2d 21, 26 (Fla. 1973)

Under the Code of Judicial Conduct, a judge would be required to disqualify himself or herself if a person within the third degree of relationship to the judge or the judge’s spouse appeared in a proceeding before the judge.

In this inquiry, although the family member’s case involved a third degree of relationship to the inquiring judge, the Engle Progeny case did not come before the inquiring judge. A colleague within the circuit presided over the case. Therefore, disqualification would not be required. Nevertheless, the inquiring judge should make a reasoned determination as to whether sitting on future Engle

Progeny cases could reasonably raise questions of impartiality. The inquiring judge must search his or her conscience and determine whether there is any personal bias or prejudice as a result of a grandfather who may have died from tobacco-related causes when presiding in such cases.

The Commentary to Canon 3E(1) provides in pertinent part:

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.

Furthermore, in Florida Judicial Ethics Advisory Committee Opinion 01-17, this Committee stated that “[t]his disclosure of 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.”

Pool Water Products, Inc. v. Pools by L.S. Rule, 612 So. 2d 705, 707 (Fla. 4th DCA 1993), advises: “The judge should disclose matters which he or she believes might reasonably impair his or her impartiality. However, after searching his or her conscience and determining that the matter will not have an effect, disclosure is not required.”

In reviewing this Committee’s prior precedents, this inquiry is the first involving an Engle Progeny case. However, we have addressed and found that neither prospective involvement as a plaintiff in a mortgage foreclosure, nor current involvement as a tenant/defendant in a mortgage foreclosure, mandated recusal by a judge in all cases concerning residential mortgage foreclosures. See Fla. JEAC ¬†Op. 15-14.

Nor was the inquiring judge required to recuse in all cases involving the same lawyers, lenders, or assignees involved in the judge’s residential foreclosure unless the judge determines that the judge had a personal bias or prejudice against the lawyers, lenders, or assignees. In Florida Judicial Advisory Committee Opinion 97-12, the Committee advised that the decision to recuse, from cases involving a lawyer who represented defendants in a case where the judge was a plaintiff, was a “personal and case specific” decision.

Applying the applicable canons and case law to this inquiry, disclosure of the 2008 case would be advised on future Engle Progeny cases assigned to the inquiring judge.

If the same attorney that represented the inquiring judge’s family member’s case appeared before the inquiring judge on an unrelated Engle Progeny case, there could be the appearance of impropriety and the perception of being in a favorable position to influence the inquiring judge contrary to Florida Code of Judicial Conduct, Canon 2B which states a judge shall not “convey or permit others to convey the impression that they are in a special position to influence the judge.” On the other hand, ifthe same attorney(s) that represented the tobacco company defendant in the 2008 case also appeared before the inquiring judge on an unrelated Engle Progeny case, there could be the appearance that the attorney(s) could be in an unfavorable position before the inquiring judge.

In Florida Judicial Ethics Advisory Opinion 15-14, this Committee found that if the same lawyers, lenders, or assignees appeared before the judge, the judge should disclose the prior litigation until such time as no reasonable person would find the disclosure relevant to a determination of whether the judge’s impartiality might reasonably be questioned.

As the Commentary to Canon 3E advises, disclosing the attorney’s representation on the former case does not automatically require the judge to be disqualified upon a request by either party, but can be addressed on a case-by-case basis. See also, in W.I. v. State, 696 So. 2d 457, 458 (Fla. 4th DCA 1997), where the court held:

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.

 

CONCLUSION

 

For the foregoing reasons, the inquiring judge need not recuse from all Engle Progeny cases as a result of the judge’s family member’s 2008 case. However, the inquiring judge must disclose the 2008 case to:

i) the parties involved in future Engle Progeny cases assigned to the inquiring judge’s division;

ii) the parties where the same lawyers or tobacco company defendant appear before the inquiring judge that were parties or litigant’s in the 2008 case until such time as no reasonable person would find the disclosure relevant to a determination of whether the judge’s impartiality might reasonably be questioned. The Committee would advise the inquiring judge to make a reasoned determination whether his or her impartiality might reasonably be questioned, and determine for himself or herself whether there is any personal bias or prejudice;

iii) disclose to the parties in the 2015 Engle Progeny case since it is still pending, albeit on appeal.

No advice is offered as to whether the inquiring judge is to make the disclosure in the 2014 Engle Progeny trial as the case reached final disposition. “Final disposition” means the complete absence or termination of any pending appeal or post-conviction motion. See Fla. JEAC Op. 98-28.

Disclosure should be made on the record, providing the information the inquiring 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, but rather resolved on a case-by-case basis.

 

REFERENCES

R.J. Reynolds Tobacco Co. v. Engle, 751 So. 2d 51 (Fla. 1999) (table); In Re: Frank, 753 So. 2d 1228 (Fla. 2000); In Re: The Florida Bar - Code of Judicial Conduct, 281 So. 2d 21 (Fla. 1973); Pool Water Products, Inc. v. Pools by L.S. Rule, 612 So. 2d 705 (Fla. 4th DCA 1993); W.I. v. State, 696 So. 2d 457 (Fla. 4th DCA 1997)

Fla. Code Jud. Conduct, Canons 2B, 3(E)(1), 3E(1)(d), 3(E)(1)(d)(ii); Commentary to Canons 3E(1)

Fla. JEAC Ops. 15-14, 04-01, 01-17, 98-28, 97-12, and 92-39.

_____________


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 to 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.    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 Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997).

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 whether the proposed conduct violates a provision of that Code.

For further information, contact Judge Barbara Lagoa, Chair, Judicial Ethics Advisory Committee, Third District Court of Appeal, 2001 S.W. 117th Avenue, Miami, FL 33175.

Participating Members:
Judge Roberto Arias, Judge Nina Ashenafi-Richardson, , Dean Bunch, Esquire, Judge Lisa Davidson, Judge Miguel de la O, Judge Jack Espinosa, Jr., Judge K. Douglas Henderson, Judge Barbara Lagoa, Judge Spencer D. Levine, Patricia E. Lowry, Esquire, Judge Michael Raiden.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady, Justice Liaison
John A Tomasino, Clerk of Supreme Court
All Committee Members
Executive Director of the Judicial Qualifications Committee
Office of the State Courts Administrator