Sands Pointe Ocean Beach Resort Condo Assoc., Inc. v. Aelion

Third District Court of Appeal
State of Florida
Opinion filed June 6, 2018.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D18-755
Lower Tribunal No. 17-2393
________________
Sands Pointe Ocean Beach Resort Condominium Association, Inc.,
etc.,
Petitioner,
vs.
Isaac Aelion, et al.,
Respondents.
________________
No. 3D18-786
Lower Tribunal No. 17-12776
________________
Elite Parking, LLC, etc., et al.,
Petitioners,
vs.
Susan Chapman,
Respondent.
________________
No. 3D18-790
Lower Tribunal No. 18-630
________________
Lauren Michelle Perez, et al.,
Petitioners,
vs.
Lisa Espineira,
Respondent.
________________
No. 3D18-825
Lower Tribunal No. 15-20238
________________
Homeowners Choice Property & Casualty Insurance Company,
Inc.,
Petitioner,
vs.
Raul Avila and Doxanne Avila,
Respondents.
________________
No. 3D18-826
Lower Tribunal No. 17-9595
________________
2
Southern Oak Insurance Company,
Petitioner,
vs.
Kervene Gregory,
Respondent.
________________
No. 3D18-827
Lower Tribunal No. 16-17320
________________
Safepoint Insurance Company,
Petitioner,
vs.
Maxo Mardy and Marie G. Mardy,
Respondents.
________________
No. 3D18-828
Lower Tribunal No. 16-31754
________________
Cristela Investments, Inc.,
Petitioner,
vs.
Becky L. Moore and Jack Moore,
Respondents.
3
________________
No. 3D18-833
Lower Tribunal No. 17-10806
________________
Florida Capital Realty Luxury Inc., et al.,
Petitioners,
vs.
Charles Lacotera, et al.,
Respondents.
________________
No. 3D18-834
Lower Tribunal No. 18-2576
________________
Lakeview Gardens at Miami Lakes Condominium Association, Inc.,
etc.,
Petitioner,
vs.
KCC Investment Group, LLC, etc.,
Respondent.
________________
No. 3D18-835
Lower Tribunal No. 17-3509
________________
Charlyn Marshall,
4
Petitioner,
vs.
Luis E. Sanchez,
Respondent.
________________
No. 3D18-836
Lower Tribunal No. 17-5970
________________
Edison Insurance Company,
Petitioner,
vs.
Alberto Loo and Ana Bernitz-Loo,
Respondents.
________________
No. 3D18-838
Lower Tribunal No. 17-23745
________________
Randy Moses and Nohra Villaquiran,
Petitioners,
vs.
Charles Luke,
Respondent.
________________
No. 3D18-853
5
Lower Tribunal No. 16-20727
________________
The Belle Tower Condominium, Inc., et al.,
Petitioners,
vs.
Seema Mehta, et al.,
Respondents.
________________
No. 3D18-854
Lower Tribunal No. 18-3930
________________
2020 Ponce Condominium Association, Inc.,
Petitioner,
vs.
2020 Ponce LLC,
Respondent.
________________
No. 3D18-855
Lower Tribunal No. 17-28537
________________
Sayan Condominium Association, Inc.,
Petitioner,
vs.
6
Law Offices of Isaac Benmergui, P.A.,
Respondent.
________________
No. 3D18-857
Lower Tribunal No. 16-28208
________________
Hartford Insurance Company of the Midwest,
Petitioner,
vs.
Jaqueline Dutkin,
Respondent.
________________
No. 3D18-860
Lower Tribunal No. 16-679
________________
Safepoint Insurance Company,
Petitioner,
vs.
Quecline Pierre and Emille Pierre,
Respondents.
________________
No. 3D18-865
Lower Tribunal No. 17-29555
________________
7
The Association for Retarded Citizens, South Florida, Inc., etc.,
Petitioner,
vs.
Claudia Zacarias, etc.,
Respondent.
________________
No. 3D18-866
Lower Tribunal No. 17-21342
________________
Gloria Milagros Casquero, et al.,
Petitioners,
vs.
Kimberly Kallstrom,
Respondent.
________________
No. 3D18-867
Lower Tribunal No. 15-24532
________________
Safepoint Insurance Company,
Petitioner,
vs.
Madeline Jean,
Respondent.
8
________________
No. 3D18-868
Lower Tribunal No. 17-15949
________________
Homeowners Choice Property & Casualty Insurance Company,
Petitioner,
vs.
Rosa Dunbar,
Respondent.
________________
No. 3D18-871
Lower Tribunal No. 16-14752
________________
Safepoint Insurance Company,
Petitioner,
vs.
Eligio Castellanos and Isabel Siles,
Respondents.
________________
No. 3D18-872
Lower Tribunal No. 15-27515
________________
Precision Healthcare, Inc., etc.,
Petitioner,
9
vs.
Luis Escalera,
Respondent.
________________
No. 3D18-873
Lower Tribunal No. 15-6352
________________
State of Florida and Office of the State Attorney of Miami-Dade
County,
Petitioners,
vs.
Anthony Schehtman,
Respondent.
________________
No. 3D18-874
Lower Tribunal No. 17-7889
________________
Cuba Sabor, Inc., etc.,
Petitioner,
vs.
Traclaire Moreira,
Respondent.
________________
10
No. 3D18-876
Lower Tribunal No. 07-46876
________________
Ford Motor Company, etc., et al.,
Petitioners,
vs.
Concepcion Gil,
Respondent.
________________
No. 3D18-877
Lower Tribunal No. 15-6858
________________
Michael Murray,
Petitioner,
vs.
Margarete Alves, etc., et al.,
Respondents.
Cases of Original Jurisdiction – Prohibition.
Cole Scott & Kissane, P.A., and Scott A. Cole and Kathryn L. Ender, for
petitioners.
Panter, Panter & Sampedro, P.A., and Brett A. Panter and David Sampedro;
Joel S. Perwin; VM Diaz & Partners, LLC, and Victor M. Diaz, Jr., Ailyn
Popowski and Justin L. DiBiasio; Goldberg & Rosen, P.A., and Judd G. Rosen;
Perry & Neblett, P.A., and David Avellar Neblett; David B. Pakula (Pembroke
11
Pines); The Mineo Salcedo Law Firm, P.A., and John Salcedo (Davie); Mario
Serralta; Neufeld Kleinberg & Pinkiert, P.A., and David A. Kleinberg; DeMahy
Labrador Drake, et al., and Kenneth R. Drake and Tiya S. Rolle; Mase Tinelli
Mebane & Briggs, P.A., and Curtis J. Mase and William R. Seitz; L.E. Burgess,
P.A. and Laura E. Burgess; Florin Roebig, and Michael Lynn Walker (Palm
Harbor); The Law Offices of Grey & Mourin, P.A., and Lourdes Rodriguez Brea;
The Patino Law Firm, and Richard Patino and Nikolas Mario Salles; Waldman
Barnett, P.L., and Glen H. Waldman, Eleanor T. Barnett and Jeffrey R. Lam;
Phillips, Cantor & Shalek, P.A., and Gary S. Phillips (Hollywood); Lauren J. Luck;
Strems Law Firm, and Cecile S. Mendizabal; Raul R. Lopez; Kelley Uustal, PLC,
and Josiah Graham (Fort Lauderdale); McLuskey, McDonald & Hughes, P.A., and
John E. Hughes, III; The Monfiston Firm, P.A., and Daniel L. Monfiston; The
Cochran Firm, and Scott W. Leeds (Plantation); Rogers Towers, P.A., and P.
Brandon Perkins (Fort Myers); Gaebe Mullen Antonelli & DiMatteo, and James S.
Robertson and Elaine D. Walter; Evan Michael Feldman; Alan Goldfarb; Leeder
Law, and Thomas H. Leeder (Plantation); Sivyer Barlow & Watson, P.A. and
Melissa A. Giasi (Tampa), for respondents.
Before SALTER, EMAS and LINDSEY, JJ.
SALTER, J.
Defendants represented by a law firm (through various attorneys within that
firm; collectively, the “Law Firm”) in twenty-six cases (and a plaintiff in a twenty-
seventh case, also represented by the Law Firm) pending in the civil division of the
Miami-Dade Circuit Court, petition for writs of prohibition to prevent an
incumbent judge (the “Incumbent Judge”) from presiding over any further matters
in those cases. The petitions are grounded on the undisputed fact that a member of
the Law Firm (the “Attorney Candidate”)—though an attorney who is not counsel
of record for any of the petitioners—is the sole opponent of the Incumbent Judge
in an upcoming judicial election.
12
We have consolidated the twenty-seven petitions because of the common
underlying legal issues and similar records.1 The petitions followed the denial of
motions for disqualification by the Incumbent Judge. The respondents in the
consolidated cases rely on responses filed in two of the cases, to which the
petitioners have filed separate replies.
For the reasons detailed in this opinion, we deny all of the consolidated
petitions based on the records before us. This opinion addresses: (1) our standard
of review; (2) the legal sufficiency of the petitioner/party allegations; (3)
applicable legal and ethical guidance; (4) the parties’ legal arguments; and (5) the
limitations of this opinion.
I. Standard of Review
The facts alleged in the underlying motions to disqualify the Incumbent
Judge must be assumed to be true. Wall v. State, 238 So. 3d 127, 143 (Fla. 2018).
The legal sufficiency of a motion to disqualify is a question of law which we
review de novo. Id. at 142. That review assesses the movant’s compliance with a
statute and a rule of judicial administration.
1 In the first-filed (lowest numbered) case only, Sands Pointe Ocean Beach Resort
Condo. Ass’n, Inc. v. Aelion, Case No. 3D18-755, the record before us includes a
transcript of a non-evidentiary hearing before the Incumbent Judge on the motion
to disqualify. In all twenty-seven of the consolidated cases, the motions to
disqualify were denied as legally insufficient.
13
Section 38.10, Florida Statutes (2018), requires that the applicant for
disqualification file “an affidavit stating fear that he or she will not receive a fair
trial in the court where the suit is pending on account of the prejudice of the judge
of that court against that applicant or in favor of the adverse party,” and that
“Every such affidavit shall state the facts and the reasons for the belief that any
such bias or prejudice exists and shall be accompanied by a certificate of counsel
of record that such affidavit and application are made in good faith.” The
procedural requirements for such a motion are further described in Florida Rule of
Judicial Administration 2.330.
Rule 2.330(d)(1), as pertinent here, requires that a party moving for
disqualification demonstrate a fear that the movant “will not receive a fair trial or
hearing because of specifically described prejudice or bias of the judge[.]”
(Emphasis provided).
Additionally, Canon 3E(1) of the Florida Code of Judicial Conduct states
that a judge should 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, or personal knowledge of disputed evidentiary facts
concerning the proceeding.” (Emphasis provided).
II. The Parties’ Allegations
14
In reviewing the motions for disqualification for specific facts and fears, we
consider whether the allegations “would place a reasonably prudent person in fear
of not receiving a fair and impartial trial.” MacKenzie v. Super Kids Bargain
Store, Inc., 565 So. 2d 1332, 1335 (Fla. 1990); Barber v. MacKenzie, 562 So. 2d
755, 757 (Fla. 3d DCA 1990). Any alleged bias or prejudice must be actual, not
presumptive. See, e.g., Jackson v. State, 599 So. 2d 103, 107 (Fla.), cert. denied,
506 U.S. 1004 (1992).
In the cases before us, the verified motions for disqualification evidence a
common template. The body of the motion recites that: a named member of the
Law Firm is the Attorney Candidate running against the Incumbent Judge; the
Incumbent Judge is presiding in the pending case; and this results in “inherent
prejudice or bias” by the Incumbent Judge against both the movant represented by
the Law Firm and the Law Firm itself.
The motions then address the legal authorities governing judicial
disqualification, though none of these authorities address the particular facts at
issue here. The verification signed by the Law Firm’s client (the movant) declares
that the signatory has “read the foregoing motion for disqualification,” and “the
facts alleged therein are true and correct to the best of my knowledge and belief.”
Finally, the signatory declares, “As set forth in the Motion, I fear that I will not
15
receive a fair trial or hearing because of the described prejudice or bias of [the
Incumbent Judge].”
Notably, there is no allegation or evidence that the Attorney Candidate is
counsel of record in any of the pending cases. There is no allegation that any
member of the Law Firm is associated with the Attorney Candidate’s campaign (as
Chair or Treasurer, for example). There is no allegation whether the Law Firm
approves or disapproves of the Attorney Candidate’s campaign, or whether the
Law Firm itself, as a professional association,2 has any position formally
supporting the Attorney Candidate’s individual decision to run for the judicial
position.
Nor does any movant describe any conduct or comment by the Incumbent
Judge, whether in-court or out-of-court, alleged to evidence bias or prejudice
against the party or the Law Firm in the particular case. In short, the motions
allege in a conclusory way that the movants anticipate “inherent” prejudice or bias
that will arise against the entire Law Firm of which the Attorney Candidate is a
part.3
2 The Law Firm’s publicly-available website indicates that it has offices in ten
locations outside Miami-Dade County (where the campaign and election will take
place). https://www.csklegal.com/locations/ (site last checked May 15, 2018). The
record contains no evidence of a firm-wide, or even Miami office-wide,
endorsement of the Candidate Attorney. The petitioners in the twenty-seven
pending circuit court cases are represented by at least twenty different attorneys
from the Law Firm (but not by the Attorney Candidate).
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III. Applicable Law and Ethics Opinions
A. Case Law; Imputation to Attorney Candidate’s Law Firm
This is a case of first impression in Florida insofar as the candidacy of the
Attorney Candidate is sought to be imputed by the movants to all members of the
Law Firm as a basis for disqualification of the Incumbent Judge. If a client of the
Attorney Candidate was a party in a pending case before the Incumbent Judge, the
client’s concern would be more obvious, as in Tower Group, Inc. v. Doral
Enterprises Joint Ventures, 760 So. 2d 256, 256 (Fla. 3d DCA 2000) (order
denying disqualification vacated where the attorney had opposed the presiding trial
judge (“in an acrimonious judicial campaign,” a characterization not discernible in
the present case); case remanded with directions that the trial judge grant the
motion for disqualification). See also Leeder v. Espinosa, 833 So. 2d 776, 776
(Fla. 3d DCA 2002) (same trial judge and individual attorney/campaign opponent;
reiterating the holding in Tower Group, Inc. that “the trial judge may may have had
3 The petitioners allege in their reply, however, that the Law Firm’s clients have
not sought disqualification of the Incumbent Judge in each and every case pending
before that judge. The Law Firm reports that clients in 38 such cases have filed
motions to disqualify; if and when petitions for prohibition are filed here after
rulings are made by the Incumbent Judge in additional cases, our consolidation
order contemplates that the same panel will be assigned those petitions. As the
records and applicable authorities may differ in any such cases, we express no
opinion regarding the disposition of petitions beyond those already consolidated in
the caption of this opinion.
17
an obligation to sua sponte recuse herself from this cause pursuant to Canon
3(E)(1(a), Code of Judicial Conduct”).
In a number of Florida cases, disqualification was addressed when a
campaign committee member for a judge’s campaign was an attorney representing
a party in a case pending before that judge. The opposing party sought
disqualification and, when the motion was denied, sought a writ of prohibition. In
one such case, this Court denied the petition, holding that a campaign contribution
to a judge or service on a judge’s campaign committee does not, without more,
require disqualification. See Nathanson v. Korvick, 577 So. 2d 943 (Fla. 1991);
MacKenzie, 565 So. 2d at 1335. Instead, allegations in such a case must indicate
a “specific and substantial political relationship” (campaign chair or treasurer, for
example) between the attorney and judge to constitute legally sufficient grounds
for disqualification. Zaias v. Kaye, 643 So. 2d 687 (Fla. 3d DCA 1994). See also
Rivera v. Bosque, 188 So. 3d 889, 891 (Fla. 5th DCA 2016) (granting petition for
prohibition; petitioner’s motion, affidavit, and attachments included a reelection
flyer and incumbent/presiding judge’s reelection web page; specific allegations
“describe the involvement of [respondent’s counsel] in the judge’s current,
ongoing campaign to be of a significant nature”).
In a similar case, a defendant’s motion to disqualify a judge based on the
allegation that defense counsel was on the steering committee to elect the judge’s
18
opponent, without more, was deemed legally insufficient. Braynen v. State, 895
So. 2d 1169, 1169 (Fla. 4th DCA 2005).
B. Case Law: Presumption of Judicial Impartiality
The law presumes “that a judge will remain impartial even where counsel of
record has voiced opposition to the election . . . of a judge.” City of Lakeland v.
Vocelle, 656 So. 2d 612, 614 (Fla. 1st DCA 1995); Paul v. Nichols, 627 So. 2d
122, 123 (Fla. 5th DCA 1993). “[I]t is assumed that the judge will not thereafter
harbor prejudice against the lawyer affecting the judge's ability to be impartial in
cases in which the lawyer is involved.” McDermott v. Grossman, 429 So. 2d 393,
393–94 (Fla. 3d DCA 1983); Raybon v. Burnette, 135 So. 2d 228 (Fla. 2d DCA
1961). See also Perrotto v. R.J. Reynolds Tobacco Co., 169 So. 3d 284, 286 (Fla.
4th DCA 2015) (citing McDermott for the assumption that a judge will not be
biased against counsel because of counsel’s opposition to judge’s application for
office, but finding the trial court’s comments in court sufficient to “rebut any
assumption of non-prejudice”).
Applying the principle that a motion to disqualify will not be legally
sufficient unless the movant overcomes the presumption of impartiality, the
“inherent prejudice” alleged in the motions in the present cases is based on the
movants’ attorneys’ mere association with the Attorney Candidate in a statewide
law firm. No Florida appellate case has imputed the candidacy of a member of a
19
law firm to every member of that firm as a legally sufficient basis to rebut and
overcome the presumption of impartiality (and requiring disqualification of the
incumbent judicial opponent on that basis).
C. Canons of Judicial Ethics and Judicial Ethics Advisory
Opinions
In 1976, the precursor to Florida’s Judicial Ethics Advisory Committee
(“JEAC”) was established by the Supreme Court of Florida in Petition of the
Committee on Standards of Conduct for Judges, 327 So. 2d 5 (Fla. 1976). JEAC’s
current name was approved by the Supreme Court of Florida in 1997.
As the foundational opinion states:
The Committee shall render advisory opinions to inquiring judges
relating to the propriety of contemplated judicial and non-judicial
conduct, but all opinions shall be advisory in nature only. No
opinion shall bind the Judicial Qualifications Commission in any
proceeding properly before that body. An opinion of the Committee
may, however, in the discretion of the Commission, be considered as
evidence of a good faith effort to comply with the Code of Judicial
Conduct; provided that no opinion issued to one judge or justice shall
be authority for the conduct, or evidence of good faith, of another
judge or justice unless the underlying facts are identical.
Id., at 5-6 (emphasis provided).
JEAC’s salutary work has produced a body of several hundred opinions in
the intervening years. Several of these have addressed the topic of motions to
disqualify an incumbent judge when an attorney announces an intention to run, or
actually runs, against the incumbent judge. No JEAC opinion has addressed the
20
exact scenario presented here, however, in which clients represented by other
lawyers in the same law firm as the opposition candidate seek disqualification of
the incumbent judge for “inherent” bias or prejudice, without more.
JEAC opinion numbers 84-12 and 84-23 address the simple scenario
considered above in various judicial opinions, one in which a party is actually
represented by the individual attorney running against the presiding judge.
Opinion number 84-12 advises that disqualification in that instance should be
automatic. Opinion number 84-23 advises that such disqualification continues after
the election, “perhaps two years,” until the judge’s impartiality cannot reasonably
be questioned.
JEAC opinions number 89-3, 89-8, 99-2, 99-13, and 2003-22 address a
judge’s duty to disqualify himself or herself as to cases involving other members
of an attorney’s law firm when the judge and the attorney have a significant
relationship requiring disqualification. These opinions address social relationships
between a judge and an attorney, and relationships with attorneys supporting an
inquiring incumbent judge’s election campaign. They do not address the law firm
of an attorney who is running against a presiding judge.
Opinion number 89-3 involved an attorney who hunted with a judge,
contributed to the judge’s son’s interest in quail-raising as a hobby, and permitted
the judge to use the attorney’s cabin in North Carolina. The opinion advises that
21
disclosure of the relationship was required “whenever that attorney appears in a
proceeding before [the judge].” In opinion number 89-8, the same judge inquired
whether disclosure was also required “on the occasions when a member of [the
attorney’s] law firm appears before [the judge].” JEAC opined that “you should
disqualify yourself in any proceeding involving the attorney’s law firm in which
your impartiality might reasonably be subject to doubt.” The opinion does not
suggest a per se rule of disqualification for all lawyers within the law firm based
on the relationship between the inquiring judge and his hunting companion/host.
JEAC opinion 99-2 involves a male judge’s single, social dinner with a
female attorney in a large law firm. “The judge and the attorney went out on that
one occasion and it did not develop into a personal relationship.” Id. The attorney
appeared before the judge on two occasions; the judge disclosed the prior dinner
engagement and, at the request of the opposing counsel, recused himself. Relying
on opinion 89-8, the Committee then expressed the opinion, “If the judge believes
that a relationship with an attorney must be disclosed then that same disclosure
should be made when any member of the attorney’s law firm appears before the
judge.” The Committee advised the inquiring judge of the Florida Supreme
Court’s commentary to Canon 3E in In re Code of Judicial Conduct, 659 So. 2d
692 (Fla. 1995):
A judge should disclose on the record information that the judge
believes the parties or their lawyers might consider relevant to the
22
question of disqualification, even if the judge believes there is no real
basis for disqualification. The fact that the judge conveys this
information does not automatically require the judge to be
disqualified upon a request by either party, but the issue should be
resolved on a case-by-case basis.”
Opinion number 99-13 asks the question of imputation very directly:
“Whether a judge who is currently represented by an attorney must recuse
himself/herself whenever members of the attorney's firm appear before the judge
on contested or uncontested matters, whether or not recusal is requested?” The
Committee answered, “The judge must automatically recuse herself, even if the
parties do not request recusal.” The opinion again cites JEAC opinion 89-8 as
support for the imputation.
JEAC opinion 2003-22 addresses “Whether a judge is disqualified in all
cases in which an attorney who was a member of the judge’s re-election committee
appears as an attorney of record in a case.” The Committee answered “no,” but
also opined that “there is no bright-line test,” and a judge “must make his or her
decision on disclosure or disqualification on a case-by-case basis.” Based on the
previously discussed JEAC opinions 89-8, 99-2, and 99-13, the opinion reiterated
the proposition that “If a judge believes that a relationship with an attorney must be
disclosed or if a judge believes he or she should disqualify himself or herself, then
that same disclosure and/or disqualification applies when any member of the
attorney’s law firm appears before the judge.”
23
Reiterations of this proposition are found in other JEAC opinions as well,
including opinions 03-22, 04-01, and 2007-17. In all of those opinions and the
opinions previously discussed in this section, however, the inquiring judge was
considering disclosure and disqualification as to an attorney in a significant social
relationship with the judge or involved in significant campaign activities with or
for the judge’s election campaign.
Only in JEAC opinion 2011-08 does the Committee consider an election
opponent’s law partner’s status as a basis for disqualification of the incumbent
judge. The issue presented in the opinion is “Whether a judge who intends to seek
re-election is disqualified from presiding over a case in which the law partner and
campaign treasurer of an attorney who has qualified to run against the judge is an
attorney for one of the parties.” In answering “yes,” the Committee considered
critical facts that are not in the cases before us: the attorney candidate’s law partner
was the campaign treasurer for the candidate opposing the incumbent judge while
representing a party in a case pending before that judge. The opinion does not
include any information regarding the size of the judicial opponent’s law firm.
The Committee in opinion 2011-08 was divided as to whether the judge
should disqualify “by automatic, blanket recusal, or via a case-by-case method.”
But citing the JEAC opinions discussed above, 03-22, 04-01, and 07-17, the
Committee reiterated the proposition that the ethical obligations regarding
24
disqualification arising out of an attorney’s appearance in a case extends to a
member of the attorney’s law firm (in this case, the law partner who was a
campaign treasurer of the judge’s opponent). JEAC opinion 2011-08 does not
propose a “per se” or automatic rule of disqualification as to members of a large
law firm who are not a partner and campaign treasurer of the judge’s opponent.
To summarize the JEAC opinions, we conclude that they establish a broad
principle of imputation applicable to lawyers in a law firm in which a particular
lawyer has established a substantial personal or campaign-related tie to an
incumbent judge. We find much less authority in the opinions regarding the
opposite side of the electoral campaign—the incumbent judge’s obligations when
members of the opposing candidate’s firm (but not the individual opposing
candidate) represent parties in cases pending before the judge.
IV. The Parties’ Legal Arguments
A. Petitioners
The petitions and replies analyze the authorities cited above and raise
additional arguments as well. In Town Centre of Islamorada, Inc. v. Overby,
592 So. 2d 774, 775 (Fla. 3d DCA 1992), an attorney announced an intention to
sue the clerk and judges of the circuit. A trial judge in two pending cases in which
the attorney represented a party stated in open court that “he did not consider a
threat of a lawsuit to be friendly and that the [attorney’s] remark might warrant
25
disciplinary measures by the Florida Bar.” This Court found these remarks were
legally sufficient to support the claims of fear of prejudice in the two cases. In a
third case, however, this Court found a waiver of the right to file such a motion, as
the attorney “accepted the case as local co-counsel with full knowledge that it was
already assigned to [the trial judge who made the remarks].” Id. at 776.
The petitioners rely on this case to rebut an argument by the respondents that
the Attorney Candidate created the alleged basis for disqualification, such that the
Attorney Candidate’s Law Firm should not be able to file and prosecute the
motions. We find the case and argument, as variously advanced by both sides
here, to be irrelevant, as there is no evidence that (a) the Attorney Candidate
commenced her campaign as a basis for forum-shopping for the benefit of the Law
Firm’s clients, or (b) the Law Firm played any role in the Attorney Candidate’s
personal decision to seek election as a circuit judge.
In their replies, the petitioners argue that the Incumbent Judge committed an
abuse of discretion in denying the motions for disqualification because
respondents’ counsel were permitted to make arguments about the Attorney
Candidate’s motives and the Law Firm’s motives. The petitioners cite Bundy v.
Rudd, 366 So. 2d 440, 442 (Fla. 1978), as authority that this basis alone constitutes
grounds for disqualification. We disagree.
26
In Bundy, the respondent trial judge entered an order which not only denied
disqualification but also “went on to explain, and in some respects controvert, the
specific factual allegations contained in the motion.” Id. at 441. The trial judge
entered a further order denying a motion to reconsider the denial, “again with
explanation.” Id. In the present case, the Incumbent Judge did not speculate as to
motives, provide an explanation, or pass on the truth of the facts alleged in the
motion.
B. Respondents
Respondents in the consolidated cases have filed two separate responses.
The first-filed response, in our Case No. 3D18-755, principally supports denial of
the motions for disqualification because they are based on “circumstances that
were created entirely by the Petitioners.” The respondent in our Case No. 3D18-
786 has filed a separate response raising additional legal arguments focusing on the
legal insufficiency of the motions to disqualify. The Incumbent Judge, as is the
Judge’s right,4 has not filed a response in any of the cases.
We have already declined to adopt the argument that the petitioners’ counsel
created the alleged basis for disqualification, thereby waiving it or requiring
disqualification of the Law Firm in the pending cases, rather than the Incumbent
Judge. We focus instead on the requirement that motions for disqualification
4 See Fla. R. App. P. 9.100(e)(3); the absence of a response by the Incumbent
Judge “shall not be deemed to admit the allegations of the petition.”
27
contain “an actual factual foundation for the alleged fear of prejudice” and that
such allegations must be “‘reasonably sufficient’ to justify a ‘well-founded fear’ of
prejudice.” Fischer v. Knuck, 497 So. 2d 240, 242 (Fla. 1986).
Political, voting, and ideological differences among lawyers associated in a
law firm are too obvious to require proof or some form of judicial notice. The
motions for disqualification bear no indication that the Law Firm lawyers
representing the petitioners in the underlying cases support the candidacy of the
Attorney Candidate. Assumptions are not an “actual factual foundation.” Simply
stated, no “specific and substantial political relationship,” Neiman-Marcus Group,
Inc. v. Robinson, 829 So. 2d 967, 968 (Fla. 4th DCA 2002), appears in this record
between any attorney from the Law Firm representing a petitioner and the Attorney
Candidate.
The respondent/plaintiff in Case No. 3D18-786 has also relied upon cases
denying disqualification based on a campaign contribution;5 service as one of sixty
members on a judge’s campaign committee6 or as one of a thirty-four member
steering committee which had supported the opponent of the presiding judge in an
election.7 These decisions recognize that attorneys must be allowed to participate
5 Nathanson v. Korvick, 577 So. 2d 943 (Fla. 1991).
6 Zaias v. Kaye, 643 So. 2d 687 (Fla. 1994).
7 Braynen v. State, 895 So. 2d 1169 (Fla. 4th DCA 2005).
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in various ways in judicial election campaigns, already subject to extensive
regulation, without projections of favoritism, bias, or recrimination by judges or by
candidates prevailing in their elections and becoming judges.
The per se rule proposed by the petitioners, with its presumption of
“inherent bias or prejudice,” could disincline eligible attorneys in large firms to
enter contested judicial elections against an incumbent. The effect on the
candidate’s firm’s clients and cases could be extensive and adverse. Although
“policy considerations” are not a requisite aspect of our disposition of these cases,
the prospect for unintended consequences is a concern.
V. Limitations
In denying the petitions presently before us, we consider it important to list
some limitations:
1. Our denial of the petitions is based on the existing records of the
individual petition proceedings before us. The election campaign conduct of both
the Attorney Candidate and the Incumbent Judge is governed by the Code of
Judicial Conduct (see, e.g., Canon 7) and by Rule Regulating The Florida Bar 4-
8.2:
Rule 4-8.2. Judicial and legal officials
(a) Impugning Qualifications and Integrity of Judges or Other Officers. A
lawyer shall not make a statement that the lawyer knows to be false or with
reckless disregard as to its truth or falsity concerning the qualifications or integrity
of a judge, mediator, arbitrator, adjudicatory officer, public legal officer, juror or
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member of the venire, or candidate for election or appointment to judicial or legal
office.
(b) Candidates for Judicial Office; Code of Judicial Conduct Applies. A
lawyer who is a candidate for judicial office shall comply with the applicable
provisions of Florida's Code of Judicial Conduct.8
Subsequent facts and actions are not within the scope of the present
proceedings, as “prohibition may not be used for the sole purpose of establishing
principles to govern future cases.” English v. McCrary, 348 So. 2d 293, 297 (Fla.
1977).
2. Although judicial disqualification decisions properly focus on the
perspective of the moving party regarding a “fear of not receiving a fair and
impartial trial,” rather than the judge’s own subjective perception of impartiality or
bias, we recognize that many judges receiving a motion to disqualify under the
scenario presented here might themselves find it appropriate to grant the motion.
In that circumstance, an incumbent judge’s own sense of propriety, fairness, and
optics must be respected; the exercise of an individual judge’s discretion to grant
such a motion is appropriate. In our evaluation of the Incumbent Judge’s decision
to deny the motions in these cases, we are not suggesting in any way that every
judge should do so in a similar case.
8 See also, § 104.271, Florida Statutes (2018), “False or malicious charges against,
or false statements about, opposing candidates; penalty.”
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3. We observe, as several of the JEAC opinions have, that these are
generally case-by-case analyses. For example, the circumstances of a two-attorney
law firm with one attorney challenging an incumbent judge, and the other
continuing to practice before that judge, might suggest a closer and more
“significant relationship.” This opinion should not be construed to apply to any
circumstances beyond those presented in these consolidated cases.
VI. Conclusion
The verified motions, party affidavits, and petitions rely on an assumption of
“inherent bias or prejudice” on the part of the Incumbent Judge against each of
some twenty different lawyers in the Candidate Attorney’s law firm, simply by
virtue of their association in the practice of law with the Candidate Attorney. No
other specific allegations of in-court or out-of-court conduct provide objective
support for such an assumption. The presumption of impartiality has not been
overcome in these cases, and the petitions in each case are denied, subject to the
limitations expressed in this opinion.
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