As Ill Will Fades

Must an elected judge be forever recused from presiding over cases litigated by his erstwhile opponent and the loser’s law firm?

Nope, according to the Florida Judicial Ethics Advisory Committee

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.

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.

(Mike Frisch )