Sunday, July 30, 2017

Lessons in Recusal and Disqualification

There are occasions when an assigned judge will no longer preside over a case. One example is when a judge grants a motion for "disqualification" (where some party(ies) request that the judge no longer preside). There is the "recusal" order, in which a judge essentially disqualifies upon her or his own motion. It is also possible for the parties to be assigned a different judge when the venue (where the case is heard) is changed. 

In Florida workers' compensation, if a judge enters an order transferring venue, the presumption is that she or he intends that the case also be reassigned to a judge in that other venue; however, a judge may transfer venue and remain presiding by so stating in the venue order. Or, in limited circumstances, the Deputy Chief Judge may reassign a case without such an order, upon the request of the assigned judge. So, there are various ways in which a new judge will become responsible for a case. 

Recusal and disqualification are not issues that many attorneys experience often. As such, it is a subject that has been known to both confuse and frustrate some. A recent case cause me to delve into the subject substantively, and it is possible that the research might be of value to others. I therefore am posting some of the findings recently entered, specifically regarding the law of recusal and disqualification. 

In this instance, the judge sua sponte (on his own motion) recused himself from the case. That action is appropriate when indicated under the Canon's of the Florida Code of Judicial Conduct. After doing so, the Judge noted that the same parties were involved in other cases pending before the judge; upon reflection and further examination, the Judge concluded that there was no basis for recusal in these cases after all. The Judge conferenced with the parties, regarding the other pending cases, and there was conversation as to how the judge might regain jurisdiction over the case in which the erroneous recusal order was entered. It appeared that all parties and the judge were comfortable with the judge regaining jurisdiction and adjudicating the case. 

As regards the entry of any order, it is worth remembering that the appropriate method to seek an order or any relief in this system is a motion, Rule 60Q6.115(1). Thus, if a party thought a recusal order to be in error, the seemingly appropriate method to bring that to the judge's attention would appear to be a motion. Perhaps a Motion for Rehearing, see Rule 60Q6.122.

However, it is perhaps not practical for a judge to later vacate or otherwise address an order of recusal. Having entered an order of recusal, a voluntary expression of having no further involvement in a case, a judge can generally have no further involvement. The Third District Court explained in Schwartz v. Schwartz, 431 So.2d 716 (Fla. 3d. DCA 1983):
it is true that once a trial judge recuses himself, further orders thereafter are void, Rogers v. State, 341 So.2d 196 (Fla. 4th DCA 1976), cert. denied, 348 So.2d 953 (F Ia. 1977); Gilmer v. Shell Oil Co., 324 So.2d 171 (Fla. 2d DCA 1975); Weiss v. Miami National Bank, 320 So.2d 466 (Fla. 4th DCA 1975), it is also the rule that a trial judge who recuses himself has the authority to enter final judgments on issues already tried, Coastal Petroleum Co. v. Mobil Oil Corp., 378 So.2d 336 (Fla. 1st DCA), cert. denied, 386 So.2d 635 (Fia.1980), or to continue where limited jurisdiction has been retained. State ex. rel. Cobb v. Bailey, 349 So.2d 849 (Fla. 1st DCA 1977). These latter propositions state the rule applicable in this case.The Florida First District has held that “Once a trial judge recuses himself from a given case, any subsequent orders he enters in that case are void and have no effect.” Davis v. State, 849 So.2d 1137 (Fla. 1st DCA 2003). But, the fact is that the recusal order was an error, a mistake. Cannot the judge correct a mistake?
It is not a novel question. The First District addressed it in Miller v. Bell South Phone Co., 860 So.2d 523 (Fla. 1st DCA 2003). There, a Judge of Compensation Claims (JCC) entered an “order recusing herself.” The judge thereafter “reversed” that recusal order and “reasserted control over the case.” Following a trial, that judge entered a final order denying compensability, which was appealed, and led to the Court’s published opinion. 

The Court in Miller stated:
a. “Florida law is clear that once a judge recuses himself or herself for whatever reason, the judge may not thereafter reconsider the recusal decision and reassert judicial authority over the case.”
b. “A judge may not reconsider his decision to disqualify.” 
Therefore, the Miller Court reversed and remanded the JCC’s compensability denial, with instructions that the case “be reassigned to another judge of compensation claims.” That appeal occurred, and reversal resulted, despite the fact that neither party had apparently contested the judge “reasserting” control over the case anytime prior to the trial concluding. Any party might have raised that issue, prior to the investment of time and money for trial, and the case might have been reassigned more expeditiously and less expensively. 

The Court in Miller cited Deberry v. Ward, 625 So.2d 992 (Fla 4th DCA 1993). There, a trial judge “made a clerical mistake when signing the order to grant the motion to disqualify,” and upon discovery of the error “reinstated himself.” The Court concluded that “A judge may not reconsider his decision to disqualify,” and directed “the lower court to transfer the case to another judge.” Even if the order was a mere clerical error, it may be irreversible. 

There is a very limited exception to this rule stated by Florida courts. In Cascone v. Foster, 774 So.2d 773 (Fla. 1st DCA 2000), the Court reiterated the “general principle” that “a judge who enters an order of disqualification may not take further action in the case.” It stresses that such “principle is limited however, to an order disqualifying a judge from presiding over a particular case.” 

A judge might enter an order barring involvement in a population of cases. Perhaps those involving a newly elected judge's former law firm. The OJCC has no capacity to identify such, or to effectuate such broad "blanket" orders, but various county clerks in the state do. The Cascone exception allows that circuit or county judge to later enter an order changing that broad, non-case-specific, recusal decision. 

It bears noting that The Florida Supreme Court has held that “there is no provision in the statutes or the decisions for a blanket decree restraining a particular judge from hearing all cases in which a particular attorney may appear.” Ginsberg v. Holt, 86 So.2d 650 (Fla.1956). In fact, in Livingston v. State, 441 So.2d 1083 (Fla.1983), the Court more directly stated “a lawyer's request for a general disqualification will not be granted.” See also, R.M.C. v. D.C., 77 So.3d 234 (Fla 1st DCA 2012). Thus, the "blanket" concept may apply only in a civil context and with voluntary recusal.

It also is notable that the Court has been clear that “stipulations of the parties are normally binding,” and that “it is the policy of law to encourage and uphold stipulations in order to minimize litigation and expedite the resolution of disputes.” That legal maxim might be seen as supporting that the parties preferences, expressed in stipulation or joint motion, might be considered just such an stipulation. Citrus World v. Mullins, 704 So.2d 1128 (Fla. 1st DCA 1997). A stipulation for the judge to "regain" control or jurisdiction of a case. 

That said, there is also authority that parties cannot confer jurisdiction (the power or authority to act) by stipulation where none exists. This has been noted both in appellate courts, Bramlet v. State, 15 So.3d 839 (Fla. 1st DCA 2009) and trial courts, Brautigam v. MacVicar, 73 So.2d 863 (Fla. 1954). 

It is also true that the law should not exalt form over substance. Grainger v. Indian River Transport/Zurich U.S., 869 So.2d 1269 (Fla. 1st DCA 2004); Wintz v. Goodwill, 898 So.2d 1089 (Fla. 1st DCA 2005); Florida Hosp. v. Williams, 689 So.2d 1255 (Fla. 1st DCA 1997); Mahoney v. Sears, Roebuck & Co., 438 So.2d 174 (Fla. 1st DCA 1983). There are those who may feel that not reassigning a case to a mistaken judge when the parties stipulate might seem inconsistent with this maxim. 

However, the parties are not likely well-served by expending time and resources trying a case, only to find on appeal that the erroneous recusal order cannot be undone, Miller. To find out at that late stage that a stipulation no more reinstates authority than some later order of the recusing judge does, would leave the parties "back at square one," beginning the trial process again with a new judge. Considering all of the authority discussed above, it may be best to simply proceed with the newly assigned judge following a mistakenly entered recusal. The risk of harm with attempting to undo that recusal may not outweigh the benefit perceived. 

Of course, the best solution is to avoid the mistaken recusal order. But, we are all human and we will all make mistakes. The issue in life is really not about some potential that we will be perfect, we will not. The issue is about learning from our errors when they occur and growing in our capacity to avoid repeating those errors in the future. And that, perhaps, is the value of this blog where one might learn from the mistakes of others, so as to avoid repeating them?

#workers' compensation

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