October 21, 1992

Opinion 92-39
Canon 3C
Disqualification

Dear Judge

You inquire whether you and your colleagues should disqualify yourselves when you are named as defendants in another lawsuit by one of the parties in the case before you. Further, you believe the other lawsuit to be frivolous.

You state that the other lawsuit is a federal court case in which a pro se group has brought an action against The Florida Bar and various judges. The group has been involved in lengthy unauthorized practice of law proceedings. Further, you state this group purports to represent others and themselves in various circuit courts.

When a judge enters an order in circuit court contrary to the interest of the group, you state that the judge is added to the federal lawsuit resulting in recusal and delay of cases in state court. For example, you state that a judge was sued after he entered a mortgage foreclosure order. You believe these frivolous actions and recusals jeopardize the timely disposition of cases and unfairly harm the rights of other parties. You cite Dowda v. Salfi, 455 So.2d 605 (Fla. 5th DCA 1984), as authority that disqualification may not be required.

This Committee's opinions are limited to the interpretation of the Code of Judicial Conduct. We do not and cannot offer any opinion on any case law on the subject of disqualification or recusal. Further, we cannot conclude whether the federal case is frivolous or not.

Canon 3 of the code applies here. The test is whether a disinterested person aware of the relevant facts would reasonably question the judge's impartiality.

Three of the participating committee members believe that if a judge is named in another lawsuit as a defendant, the judge upon the motion for disqualification should recuse herself or himself.

Three committee members believe that the given facts do not set forth sufficient grounds that your impartiality might reasonably be questioned.

Three committee members strongly believe the committee cannot offer any specific opinion because the federal action is pending.

The 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 issued by the committee. Petition of the Committee on Standards of Conduct for Judges, 327 So2d 5 (Fla.1976).

With regards, I remain,

Yours very truly,

Harvey Goldstein, Chairman
Committee on Standards of Conduct Governing Judges

JT/mc

cc: All Committee Members

Participating members: Judges Tolton, Booth, Dell, Doughtie, Goldstein, Rushing and Clarke, Esq.

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