Masten v. State , 2015 Fla. App. LEXIS 4297 ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed March 20, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-0817
Lower Tribunal No. 13-18368
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Richard Masten,
Petitioner,
vs.
The State of Florida, et al.,
Respondents.
A Case of Original Jurisdiction – Prohibition.
Diaz Reus & Targ, LLP, and Carlos F. Gonzalez; Edward J. O'Donnell, for
petitioner.
Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant
Attorney General; Linda Kelly Kearson, Office of the General Counsel, Eleventh
Judicial Circuit of Florida, for respondents.
Before SALTER, FERNANDEZ and LOGUE, JJ.
LOGUE, J.
Richard Masten seeks a writ of prohibition contending the trial judge erred
in denying his motion to disqualify. We find the motion was legally sufficient to
require recusal.
Masten was charged with direct criminal contempt, found guilty, and
sentenced to probation. He moved for a stay of his sentence, which was denied. He
then sought review of the denial. In the meantime, Masten was charged with
violating his probation.
On learning that Masten sought review of the denial of the stay, the trial
judge sent the Attorney General’s Office a twenty-one paragraph email containing
various arguments “intended to assist you in rebutting entitlement to a stay.” The
trial judge’s chambers sent further emails attaching documents and transcripts.
Neither Masten nor his attorneys were copied or included in these
communications. The Attorney General’s Office commendably advised all parties
of the emails.
Once the judge’s emails were revealed, Masten filed a verified motion to
disqualify. The trial judge denied the motion. Masten then filed an appeal which
we now treat as a petition for a writ of prohibition. Through counsel, the trial judge
filed a response to the petition which referred to “the purported ex parte
communication” and expressed the view that the trial judge “reasonably expected
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that the Attorney General’s Office would represent her interests [in the review of
the stay].”
Without belaboring the point, the trial judge erred in sending the emails
which clearly constituted ex parte communications. Rose v. State, 601 So. 2d 1181,
1183 (Fla. 1992) (“The most insidious result of ex parte communications is their
effect on the appearance of the impartiality of the tribunal. The impartiality of the
trial judge must be beyond question.”); Rollins v. Baker, 683 So. 2d 1138, 1140
(Fla. 5th DCA 1996) (“[The judge] has interjected himself into the litigation and
has assumed the role of an adversary. This alone is a basis for disqualification.”).
The trial judge also erred by filing a response which suggested she held both
a personal interest in the appeal of the stay and an expectation the Attorney
General’s Office would represent “her interest” in the appeal. “In a prohibition
proceeding . . . it is the safer practice for the judge to remain silent and let the
adversarial party supply the response.” Ellis v. Henning, 678 So. 2d 825, 828 (Fla.
4th DCA 1996) (citation and quotation omitted).
“It has long been said in the courts of this state that every litigant is entitled
to nothing less than the cold neutrality of an impartial judge.” Great Am. Ins. Co.v.
2000 Island Blvd. Condo. Ass’n, Inc., 153 So. 3d 384, 385 (Fla. 3d DCA 2014)
(citation and quotation omitted). Based on the facts of Masten’s verified motion,
which we must take as true, and the statements in the judge’s response, Masten
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could have “an objectively reasonable, well-grounded fear of not receiving a fair
and impartial trial.” Rodgers v. State, 948 So. 2d 655, 673 (Fla. 2006).
We ask much from our trial judges. Nowhere do we ask more than when a
litigant acts in open and obvious contempt of the court. On one hand, the trial court
must maintain control of the courtroom and uphold the dignity of the legal process
by enforcing obedience to court orders. On the other hand, the trial court, no matter
how much his or her patience is taxed by a misbehaving litigant, must never
abandon the outlook and appearance of a dispassionate and objective magistrate.
We therefore grant the petition, but are confident it will be unnecessary to
formally issue the writ. Kopel v. Kopel, 832 So. 2d 108 (Fla. 3d DCA 2002).
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