Opinion 80-3

May 5, 1980

Dear Judge:

This is in response to your inquiry of March 10th, 1980. If I may restate the problem, it is as follows:

You are an industrial claims judge who has pending before you a motion to tax costs against the Division of Workers' Compensation, Department of Labor and Employment Security. Because you are a Deputy Commissioner within the Division and Department, you have recused yourself from hearing the motion, on the ground that there is an "irrebuttable presumption of prejudice and predisposition." The Committee was confused as to whether we were being asked to approve your action, or determine whether there is any reason to recuse yourself in future cases of that type.

If your inquiry is to the propriety of your action, the Committee was of the opinion we should not answer. The Order creating the Committee on Standards of Conduct Governing Judges requires us to "render advisory opinions to inquiring judges relating to the propriety of contemplated judicial and non-judicial conduct..." Inasmuch as you have already recused yourself, the Committee was of the opinion that the inquiry was a post hoc request.

Assuming your inquiry is addressed as to what you should do in future cases of this type, three of eight members responding felt we should refuse to answer. As one member stated:

"...the question posed is really political in nature and part of that ongoing dispute as to the nature of the office of Deputy Commissioner. Eventually the Legislature or the Courts, or both, will have to speak further on whether the deputy is a judicial officer and independent of the agency. I think our committee should stay out of this dispute."

Four of the members did fear to tread upon what may be a political question. Deputy Commissioners are appointed by the Governor for specific terms. They hold their position by virtue of the appointment, and cannot be removed, except on good cause, until the expiration of the commission. They are supported logistically by the Chief Commissioner, rather than the Bureau. They are not employees of the Department. Were all Deputy Commissioners to recuse themselves in these matters, there would be no one to hear the Department's claims.

Their situation is analogous to that of a judge. While being paid and supported by the State, judges are regularly required to decide civil and criminal matters in which the State is litigating against individuals. We do not, and should not, recuse ourselves.

It is a legislative question whether Deputy Commissioners should be totally divorced from the Department. As far as an ethical question is concerned, a majority of the responding members f the Committee felt there was nothing in Canon 3C which requires recusal.

Yours truly,

James T. Carlisle, Chairman
Committee on Standards of Conduct Governing Judges

cc: All Committee Members
Sid White, Clerk of the Supreme Court
William C. Clark, Chairman, Florida Judicial Qualifications Commission
Linda H. Yates, Managing Editor, Florida Bar Journal
All references to the inquiring judge deleted