Don't let the blindfold slip: a guide to judicial disqualification.

• Author: Lippincott, Marcia K.
• Position: Cover story

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A $3 million dollar campaign contribution to a West Virginia Supreme Court judicial candidate should have prevented the elected candidate from presiding over a case involving this contributor. Yet, it took years before the U.S. Supreme Court reversed a $50 million judgment in favor of that contributor in Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009). The Brennan Center for Justice of the New York University School of Law recently reported that most states, including Florida, have not heeded Caperton's call to strengthen judicial recusal rules. (1)

Judicial neutrality is critical to our legal system. Florida judges have the obligation to voluntarily recuse themselves for a variety of reasons, including bias or prejudice regarding a party or an economic interest in the matter. (2) Canon 3E of the Florida Judicial Conduct Code applies to all judges, but there is no statutory right or mandatory procedure for disqualifying an appellate court judge. (3) Instead, determination of the disqualification motion is "personal and discretionary" with the individual appellate judge. (4) A disqualification decision made by a Florida Supreme Court justice is unreviewable; the motion is directed to the challenged judge, and the judge's decision is final. (5) Such a practice has been criticized as eroding public confidence in the judicial system. (6)

There is some confusion about the standard for disqualification of circuit judges when they are acting in an appellate capacity. One appellate court has ruled the trial court disqualification rules apply to a single circuit judge performing in an appellate capacity. (7) Another district has held that the appellate disqualification standard applies to trial court judges sitting in three-judge appellate panels. (8) Fla. R. Jud. Admin. 2.330(a) expressly states the trial disqualification rules apply to county and circuit court judges "in all matters in all divisions."

Judicial disqualification standards for trial and appellate judges are quite distinct. Although Florida's rules may need strengthening, litigants have a statutory right to request disqualification of trial court judges when prejudice is reasonably feared. (9) The effectiveness of this process hinges upon the key role attorneys play in maintaining the blindfold of judicial neutrality. This article focuses on a litigant's right to disqualify (10) a trial court judge, and it will assist Florida attorneys in improving their use of this tool.

Judicial Disqualification Based Upon Relationships

Certain relationships, including an association with the litigation subject matter, can require judicial removal. A judge may not continue if there is a possibility the lawsuit will financially benefit the judge or a close relative. (11) Disqualification must also be ordered when a judge or family member is personally involved in a similar legal difficulty. (12)

An attorney's current or recent representation of the judge, the judge's spouse, or even the judge's significant other, requires disqualification. (13) It is also necessary when a judge's spouse has an ongoing business relationship with a litigant's expert. (14) Prior representation of a litigant when a judge was a practicing attorney does not require replacement if there is no recent confidential relationship, and the extent of prior contact was not meaningful. (15)

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Legal campaign contributions are inadequate to compel judicial disqualification, even though the combined contributions of law firm members totaled almost $5,000. (16) Active participation in a judge's election campaign requires disqualification, (17) but that is not the case when the attorney did not play an instrumental role in the political campaign or when the campaign was several years ago. (18)

Adverse relationships between a judge and an attorney can lead to judicial disqualification. An acrimonious political campaign between a judge and a litigant's attorney necessitates disqualification. (19) Conversely, a trial judge's appointment as a referee in an attorney's pending disciplinary action is insufficient to dictate disqualification without a showing of personal bias. (20)

Friendship without "special circumstances" between a judge and a litigant, attorney, or witness does not require disqualification. (21) A new rule requiring judicial substitution when friendship goes beyond "politeness" and constitutes "loyalty" has been nationally advanced. (22) Indeed, Florida judges have been cautioned not to "friend" attorneys on the judge's Facebook page because this recognition "conveys or permits others to convey the impression that they are in a special position to influence the judge." (23)

Once a judge discloses a relationship and offers recusal, a disqualification motion must be granted. (24) A judicial connection that compels disqualification in one case applies to all such cases. (25) Significantly, an attorney cannot join litigation and succeed in obtaining judicial removal based upon a known conflict. (26)

Judicial Disqualification Based Upon Actions

Adverse rulings are an insufficient basis for disqualification. (27) Judicial actions cross the line when a judge becomes an active participant in the adversarial process, i.e., giving "tips" to either side. (28) Similarly, seeking information outside the courtroom is an investigative action requiring disqualification. (29) While judicial questions to clarify testimony are permitted, extensive questioning or questions providing the essential elements of a party's case requires removal. (30)

Preventing a litigant from introducing testimony or engaging in cross-examination constitutes a due process violation and provides a basis for disqualification. (31) Ex parte communication is permissible for purely administrative matters. (32) When one-sided judicial contact exceeds that purpose, disqualification is required. (33)

Although a judge may form mental impressions during a proceeding, prejudgment of an issue is not permitted. (34) This principle does not prevent judicial performance of preliminary research or note preparation before a hearing. (35) Disqualification is required when judicial comments are made about matters not yet before the court, or prior to an evidentiary presentation. (36) Consequently, a well-founded fear of bias was found to exist because a judge commented at a contempt hearing before any testimony was offered, "[S]o he's going to tell me one more time he has no money when I haven't believed him anytime before." (37)

A judge's targeted personal remarks may create a well-grounded fear of bias mandating disqualification. Although a judge is permitted to make civil remarks expressing frustration with attorneys, (38) comments exceed the bounds when the judge calls an attorney a "liar" or a...