FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2019-12
Date of Issue: April 2, 2019

ISSUES

Whether a judge must automatically, i.e. without request or motion, recuse himself/herself from all cases in which an attorney is involved who was an opponent of the judge in a recent, contested election.

ANSWER: No, as long as there is no personal bias or other reason for recusal.


FACTS

The inquiring judge sits in a county with few judges. The judge’s opponent in a recent election is an attorney who has and will appear frequently in cases before the inquiring judge. Because of the few judges serving this community, assigning another judge to hear all cases involving this attorney would not be a simple matter, although it could be done if necessary. According to the judge, the election was “contentious” but the former opponent attorney has not requested recusal from any of the matters and has expressed satisfaction with how the judge has treated the attorney and the attorney’s clients. Similarly, the judge does not report any feelings of hostility or bias toward the former opponent. Despite this, the judge is concerned that the situation may nevertheless require mandatory recusal because of the recent nature of the election.

 

DISCUSSION

The judge’s inquiry requires examination and discussion of several Canons of the Florida Code of Judicial Conduct, specifically Canons 2A and 3E(1).

Canon 2A provides in part that a judge “shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 2B further admonishes that a judge “shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment.”

Canon 3D(1) requires that a judge “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 . . . ” The inquiring judge correctly notes that if the former election opponent requested recusal given these circumstances it would likely be warranted. Further, this committee has previously held that a judge should be disqualified from hearing any case 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).

This case is distinguishable as it involves a former opponent. Previous opinions of this committee have concluded that while there is no bright line test, nor is one recommended here given varying circumstances, typically some reasonable amount of time should pass after an election so that an appearance of bias or impropriety would be remote. In JEAC Op. 84-23 it was opined that 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.” Decades later, in JEAC Op. 19-03, we concluded that four years following an election was more than enough time to extinguish any suspicion of bias. The record in this case indicates the judge’s election took place in November of 2018, approximately five months before the judge’s inquiry.

The present situation also contains another factor worth considering in that the judge is presiding in a smaller county with few judges. At least one present member of this committee, also a judge in a relatively rural county, has pointed out that both jurists and practitioners in these settings are adept at putting animosity aside due to necessity. If recusal was mandatory following each election cycle for an extended period of time it could cause hardship in our rural communities such as unfair redistribution of judicial workloads, requiring travel to a distant court house, and scheduling difficulties for attorneys and their clients. While fairness to the litigants must remain paramount regardless of circumstances, the factors present here appear to be recognized in the commentary to Canon 3E(1) which states “By decisional law the rule of necessity may override the rule of disqualification.” Those comments go on to stress an individual case evaluation approach to resolving questions of recusal when it is not clearly mandated.

The dynamics of these particular facts seem to indicate that the parties have moved on from the election and the system is working without complaint. In fact, without any indication of suspicion or concern regarding bias, it appears this is an example of how professionals can conduct themselves in the aftermath of an election, even one that was zealously contested.

The foregoing authority dictates a case-by-case evaluation. While conceding that less than six months is a relatively short period compared to those considered in other opinions, the apparent civility, professionalism, and lack of any perceived problems in the circumstances here would seem to allow the judge to use good faith judgment in determining recusal. Nothing in the Canons or previous JEAC opinions persuade the committee to establish any definitive time test for mandatory recusal following an election.

However, if the present situation should change or deteriorate, the judge should revisit whether recusal would then be appropriate in light of the Canons. Moreover, and as indicated above, should a motion for recusal by the judge’s former opponent be brought, it should receive serious consideration. Until then, we see no reason to compel recusal for an arbitrary period of time to address a problem that does not seem to exist. In this particular matter we would side with the minority view of JEAC Op. 84-23 which opined that “the committee would not recommend disqualification of a judge who has won a contested election in cases involving the judge’s prior political opponent but would leave the matter entirely to the conscience of the judge.”

The committee further suggests that judges faced with similar issues consider the recusal procedures discussed in City of Lakeland v. Vocelle, 656 So. 2d 612 (Fla. 1st DCA 1995); McDermott v. Grossman, 429 So. 2d 393 (Fla. 3d DCA 1983).

 

REFERENCES

Sands Pointe Ocean Beach Resort Condo. Ass’n, Inc. v. Aelion, 251 So. 3d 950, 957 (Fla. 3d DCA 2018)

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 of Judicial Conduct, Canons 2A, 2B, 3D(1) and 3E (1)

Fla. JEAC Ops. 19-03, 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, Judge Jeffrey T. Kuntz, 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