Overcompensation
A motion to disqualify a Judge of Compensation Claims was improperly denied, according to a recent decision of the Florida First District Court of Appeal
The motion to disqualify was based on a comment allegedly made by the JCC after a lengthy video teleconference (VTC) hearing that was inadvertently picked up by the VTC equipment and overheard by Petitioners’ attorney. Specifically, the motion alleged that “[f]ollowing the dismissal of counsel and the party, the [JCC] turned in his chair, and spoke to an off camera staff member, saying ‘was I nice and sweet and patient to let the attorney talk on and on and on ad nauseam’?” The JCC summarily denied the motion as legally insufficient.
We agree with the JCC that the motion was legally insufficient. The comment attributed to the JCC did not specifically single out Petitioners’ attorney as the loquacious one, and even if it had, that would not establish an objectively reasonable basis for Petitioners to fear that the JCC was biased against them. See Letterese v. Brody, 985 So. 2d 597, 599 (Fla. 4th DCA 2008) (finding motion to disqualify based on judge’s comment that he had heard the parties’ arguments “ad nauseum” to be legally insufficient and explaining that although “[a] judge must not be unduly biased against a party or prejudge a matter [], after hearing the evidence and arguments, a judge must be permitted to ‘judge’”).
Notwithstanding the legally insufficiency of the motion, we are compelled to grant the petition because the response voluntarily filed on behalf of the JCC by the Office of Judge of Compensation Claims (OJCC) attempted to refute the alleged partiality of the JCC by asserting—without any record support—that JCC “did not interrupt or raise his voice to counsel” and that he “allowed both sides to fully make their arguments, resulting in what would normally be a 5 to 10 minute hearing lasting over an hour.” This was improper because it effectively placed the JCC in an adversarial posture with Petitioners by impermissibly suggesting that the allegations in the motion to disqualify were an incomplete account of the factual circumstances bearing on the JCC’s impartiality.
Hat tip to sunEthics. (Mike Frisch)