April 2, 1984

Opinion No. 84/6
Recusal when a judge has prior experience with a litigant

Dear

This is in response to your inquiry concerning whether you should disqualify yourself in a case involving a litigant who has been before you in a prior a case and who, in that case, filed affidavits attacking your personal integrity. You state that, in the present litigation, the litigant has elected not to seek your disqualification to sit on the case, but you state:

Even though I would attempt to be as fair as possible I feel that should I exercise my discretion against (the litigant's) position (the litigant) would feel that it was done for ulterior motives since (the litigant's) feelings about me are anything but complimentary. Even though I feel that I can fairly make a decision concerning (the litigant's) case it appears to me that it would be better for the judiciary if I should step down.

Seven of the eight members responding to this inquiry state without qualification that you should recuse yourself. The eighth member points out:

The disqualification of judges is controlled by Chapter 38 of Florida Statutes and by Florida Rule of Civil Procedure 1.432. The judge in this instance has not been asked to disqualify himself and this being so he should examine his own conscience to see whether or not he thinks he can impartially preside over this woman's trial. Assuming that he feels he can, I think he should then inform the attorneys on both sides about his prior experience and offer to recuse himself if either side wishes it.

Canon 3C, entitled "Disqualification," provides:

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

(a) he has a personal bias or prejudice concerning a party...

 

Under the facts you have stated, it may appear that you have personal bias or prejudice, so that your impartiality "might reasonably be questioned." Therefore, you should recuse yourself.

Sincerely,

Anne C. Booth, Chairman
Committee on Standards of Conduct Governing Judges

cc: All Committee Members

All reference to the inquiring judge is deleted from the copies sent to the following individuals.

Mr. Sid White, Clerk of the Supreme Court of Florida
Linda Yates, Managing Editor, The Florida Bar Journal
Mark Hulsey, Esq., Chairman, Judicial Qualifications Commission.
Hon. Howard T. Markey, Chairman, Ethics Advisory Panel of the Judicial Conference of the United States .
Jeffrey M. Shaman, Esquire, Director, Center for Judicial Conduct Organizations
Ms. Jean Underhill, Librarian, Broward County Law Library
Mr. Robert Wallace, Librarian, Dade County Law Library
Mr. Brian Polley, Librarian, Supreme Court of Florida

Participating members: Judges Booth, Carlisle, Dell, Green, Grube, Hewitt, Letts, and Attorney Samuel J. Powers, Jr.