FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2019-03
Date of Issue: January 18, 2019

ISSUES

1. Whether a judge is permanently disqualified from presiding over cases in which a party is represented by the judge's former campaign opponent or the opponent’s law partners.

ANSWER: No.

2. May the judge rescind a blanket order disqualifying the judge from hearing cases involving parties represented by a former campaign opponent or opponent’s law partner after the passage of a reasonable period of time?

ANSWER: Yes.1


FACTS

The inquiring judge faced a contested judicial election in 2014. After the judge was elected, the judge entered an order in January 2015 disqualifying the judge from hearing all cases in which the campaign opponent or law partner were involved. The order was entered almost four years prior to the judge’s inquiry to this committee, but contains no expiration date.

The judge was recently assigned to a case in which the judge's former campaign opponent represents one of the parties. The former opponent filed a copy of the disqualification order and has announced his intention to seek disqualification of the judge, based on the 2015 order.

The judge requests an opinion advising whether a judge must forever disqualify himself or herself from cases involving a former campaign opponent or opponent’s partners or if it is appropriate to now rescind the order of disqualification entered by the judge soon after the election.

 

DISCUSSION

Fla. Code Jud. Conduct, Canon 3E (1) (a) provides:

(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:

(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer . . .

Judicial campaigns span a broad spectrum from those in which all candidates act ethically and amicably and remain friends during and after the election, to those that are acrimonious and approach or even run roughshod over ethical boundaries, and in which one or both of the opponents remain bitter for years afterward. The inquiring judge does not detail the character of the campaign which led to the present inquiry.

This committee has previously held that a judge should be disqualified from hearing any cases involving a current political opponent (JEAC Op. 84-12), and has further determined in JEAC Op. 11-08 that the disqualification requirement extends to cases involving the opponent’s campaign treasurer or law partner. But see Sands Pointe Ocean Beach Resort Condo. Ass'n, Inc. v. Aelion, 251 So. 3d 950, 957 (Fla. 3d DCA 2018) (calling into question the applicability of JEAC Op. 11-08 when the judge’s opponent is a partner in a large firm).

It being clear that disqualification is required during a campaign, the question then becomes the length of time after the election for which disqualification continues to be required. The law presumes that, after an election is over and a reasonable period of time has passed, a judge would not harbor such ill will that it would prevent the judge from impartially considering cases presented by the former opponent. See City of Lakeland v. Vocelle, 656 So. 2d 612 (Fla. 1st DCA 1995); McDermott v. Grossman, 429 So. 2d 393 (Fla. 3d DCA 1983). Even though no personal animosity may exist, this committee, in JEAC Op. 84-23, has suggested that it would be appropriate for a judge to disqualify himself “for a reasonable period of time, perhaps two years, until you believe that, considering all the circumstances of which you are more aware than we on the committee, your impartiality cannot reasonably be questioned.”

The committee continues to feel that, while a two-year disqualification period should not be adopted as a bright-line rule due to the many varying circumstances which may be involved, two years would normally allow a sufficient passage of time to allay any lingering concern that a judge might either “rule too harshly, or ‘bend over backwards’ to rule favorably in a case involving a former opponent.” See JEAC Op. 84-23.

In the present case, where four years have passed since the election, the judge should consider whether any particular circumstances exist that could cause either the judge or the litigants to reasonably question the judge’s ability to rule impartially. If no such circumstances exist, it would be appropriate for the judge to rescind the earlier blanket disqualification order and to consider any further motions for disqualification made by a former election opponent or the opponent’s law partner on a case-by-case basis in order to determine whether specific facts are alleged which would warrant disqualification.

The committee further suggests that judges faced with similar issues in the future consider the procedures discussed in Holt v. Sheehan, 122 So. 3d 970 (Fla. 2d DCA 2013) and the comments made by the courts in Ginsberg v. Holt, 86 So. 2d 650 (Fla. 1956) and R.M.C. v. D.C., 77 So. 3d 234 (Fla. 1st DCA 2012) concerning the use of blanket orders of disqualification.

 

REFERENCES

Ginsberg v. Holt, 86 So. 2d 650 (Fla. 1956)
Sands Pointe Ocean Beach Resort Condo. Ass'n, Inc. v. Aelion, 251 So. 3d 950 (Fla. 3d DCA 2018)
Holt v. Sheehan, 122 So. 3d 970 (Fla. 2d DCA 2013)
R.M.C. v. D.C., 77 So. 3d 234 (Fla. 1st DCA 2012)
City of Lakeland v. Vocelle, 656 So. 2d 612 (Fla. 1st DCA 1995)
McDermott v. Grossman, 429 So. 2d 393 (Fla. 3d DCA 1983)

Fla. Code Jud. Conduct, Canon 3E (l)(a)

Fla. JEAC Ops. 11-08, 84-23 and 84-12

_____________


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 of 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 whether the proposed conduct violates a provision of that Code.

For further information, contact Judge James A. Edwards, Judicial Ethics Advisory Committee Chair, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, FL 32114.

Participating Members:
Judge Michael Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Judge David Green, Mark Herron, Esquire, Justice Barbara Lagoa, Judge Matthew C. Lucas, Judge Michael Raiden, and Charles Reynolds, Esquire.


All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


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

 

1. The question presented to the committee did not ask specifically whether the judge should disqualify himself or herself from the case which led to this inquiry. It is assumed by the committee that the judge will honor the attorney's request, it being the committee's opinion that the judge would remain disqualified from hearing all cases involving the former campaign opponent until the order of disqualification has been vacated, whether or not the issue is raised by counsel.