Tuesday, October 10, 2017

The Sleuthing Judge

In Florida, Judges are governed by the Code of Judicial Conduct. This specifically applies to the Florida Judges of Compensation Claims, not because we are part of the judicial branch (we are not), but because the very statute that establishes this agency says so.  See Section 440.442, Fla. Stat. 

The Code is a broad set of prohibitions on activity, and inspirational ideals for judges. The underlying principle of the Code is that
Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law.
In addition to defining what activities are permissible, debatable, and inappropriate, the Code provides guidance on the issue of disqualification. That is, when a judge should not preside over a case. In Florida, this is in Canon 3E:
A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned.
There are then various examples of specific instances in which disqualification is appropriate. These are examples, the Code is clear that disqualification is appropriate in those instances, but is "not limited to" those listed instances. 

Recently, the Tennessee Supreme Court interpreted a similar provision from the Tennessee Code of Judicial Conduct in Holsclaw v. Ivy Nursing Home Inc., No E2016-02178-SC-T10B-CV.

There, a party requested the trial judge to "recuse" from the case. The defendant filed a "motion for recusal of the trial court judge," which was denied. As an aside, anytime a party in Florida workers' compensation seeks relief, a motion is the appropriate vehicle. See Rule 60Q6.115(1), F.A.C. Periodically, an attorney will ask the "what do I do next" question regarding some conflict. It is surprising that so often they do not realize the "next step" most often to seek relief from the trial judge and the vehicle for that is a "motion."


The FLJCC is not a court, see In Re Rules of Workers' Compensation Procedure, 891 So.2d 474 (2004). Therefore, the Judges are not governed by the Rules of Judicial Administration generally. One exception is the disqualification topic, upon which the Rules of Procedure for Workers' Compensation Adjudications have specifically incorporated Fla. R. Jud. Admin. 2.330. See Rule 60Q6.126(1). That rule sets forth procedure for seeking disqualification of a trial judge. Thus, the Code provides for the "when" and "why" of disqualification, and the Rules of Judicial Administration provide the "how."

In Holsclaw, the trial judge denied disqualification. The Tennessee Court of Appeals reversed that decision and ordered the trial judge removed from the case. The Tennessee Supreme Court granted review, and reversed the appellate court, reinstating the trial judge's authority to hear the case. One Justice of the Supreme Court dissented from that decision. It is worthy to note, therefore, that multiple appellate jurists concluded that disqualification was appropriate in this case. Two appellate court judges and one Supreme Court justice concluded that would be the better course.

The plaintiff in Holsclaw alleged the defendant fired her in retaliation. The Supreme Court noted that two trial judges "recused or removed themselves," before the case was assigned to Judge Stanley. This language is somewhat important. Judges "recuse" themselves, and can be "disqualified" by others. When a party seeks to remove a judge from a case, the appropriate motion is a "motion for disqualification," not a "motion for recusal." A technical point to be sure, but worthy of understanding nonetheless. 

Eventually there was a motion filed for plaintiff to be evaluated by a rehabilitation counselor. If the plaintiff had agreed to this request, it would likely have proceeded without a motion. Motions are tools that indicate a dispute exists which requires the intervention of the judge. Usually, when a motion has been filed, one can presume there is a disagreement. 

The plaintiff's opposition was essentially that other evaluations had already been conducted, and that the requested examination would essentially be irrelevant in light of a prior concession that she suffered "a vocational disability." Of note, at least some of the previous evaluations were in a workers' compensation case that was also ongoing between the plaintiff and defendant. That is also not uncommon, for an employee to have both workers' compensation litigation and civil litigation ongoing at the same time. And, the facts and issues sometimes become intertwined. 

Judge Stanley told the parties she was inclined to grant the motion for evaluation. She noted her experience was primarily with "vocational disability experts," and expressed a lack of familiarity with "rehab counselors." She questioned the parties: "Are these dudes even qualified to testify as experts?" And in furtherance of that curiosity, she "called the director of the department at the University of Tennessee" and that professor 
kind of filled me in on what the program, the certification is, what these guys do and don’t do, you know, enough for me to at least conclude that this is the type of certification for a person that I might let testify as an expert.
Specifically not ruling on whether the rehab counselor could be an expert witness, the judge indicated she would order the evaluation. Of note, neither party made any objection after the judge described this phone call to the university. 

Thereafter, the defendant moved to disqualify Judge Stanley, alleging that the trial court “did not constrain itself to consideration of the facts presented by the parties,” “conducted an independent investigation,” and “acquired knowledge from an extra-judicial source.” From this, the defendant argued that the "the trial judge had personal knowledge of disputed evidentiary facts concerning the proceeding.” The judge denied the disqualification motion. 

The Tennessee Appellate Court concluded "the trial judge engaged in an independent investigation that allowed the judge to gain personal knowledge of disputed facts." It concluded that this investigation gave “an appearance of impropriety" and warranted disqualification. A concurring judge stressed that the record did not support "that the trial judge is biased or prejudiced," but that the judges "inquiry" call "could reasonably create the appearance of impropriety.” Notably, one Court of Appeals judge dissented, and would have held the denial of disqualification was appropriate. 

The Tennessee Supreme Court noted from the Code that 
[a] judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned,
Notably, this the same standard is in the Florida Code. This, according to the Supreme Court would require recusal or disqualification 
in any proceeding in which “a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality.
The Supreme Court stressed that this "objective" test is used "because the appearance of bias is just as injurious to the integrity of the courts as actual bias.” 

The Court focused on the "personal knowledge" allegation in support of disqualification, noting that the Court had not previously defined the meaning of "personal knowledge." It elected to adopt a definition enunciated by the Minnesota Supreme Court that “personal knowledge” is 
'knowledge that arises out of a judge’s private, individual connection to particular facts' and not including information that a judge learns 'in the course of her general judicial capacity or as a result of her day-to-day life as a citizen'
Accepting the Minnesota definition, and finding this prohibition a "narrow" one, the Court noted the test is whether “a person of ordinary prudence would have a reasonable basis for questioning [her] impartiality.” Applying that test, the Court concluded that Judge Stanley had no personal connection to the case, and that the "merits of the case (were not) affected at all by the judge’s conduct." It therefore concluded that the trial judge need not be disqualified. 

The Court also considered whether the trial judge's call was "improper ex parte communication or independent investigation" under a second Canon. As the Florida Code does, the Tennessee Code precludes a judge from initiating, permitting, or considering ex parte communications. That is communications "to the judge," but "outside the presence of the parties or their lawyers, concerning a pending or impending matter.” This Canon also says a judge shall "refrain from conducting an independent investigation into the facts of a matter."

The Court concluded that the call to the University was an ex parte communication on a "pending matter." It examined the Code's "exceptions to the prohibition against ex parte communication" and found none apply. The Court also held "that this communication between the trial judge and Dr. Mulkey qualifies as an independent investigation." However, the Court concluded that its conclusion of both ex parte communication and independent investigation did "not end our inquiry."

Essentially, the Court held that beyond a finding of violating the Canons, the Court "must determine whether the trial judge’s impartiality might reasonably be questioned" by “a person of ordinary prudence." The Court noted that 
At all times in the proceedings, the trial judge was open, honest, and forthright about her communication with Dr. Mulkey. At no point did the trial judge discuss the Defendant’s expert specifically with Dr. Mulkey. She did not investigate the Defendant’s proposed expert. She merely ascertained what the CRC program at the University of Tennessee entailed so that she could understand what type of certification
The Court concluded that the judge improperly communicated, ex parte, and improperly investigated, but since she was open and straightforward about that, and limited her investigation, then no "person of ordinary prudence" would "reasonably question" her impartiality. 

Justice Page dissented. He "perceive(d) an appearance of impropriety." Justice Page stressed that “the preservation of the public’s confidence in judicial neutrality requires not only that the judge be impartial in fact, but also that the judge be perceived to be impartial." And, thus, it appears that Justice Page questions the trial judge's impartiality. 

Either the majority concluded that Justice Page's perception was not "reasonable" or that he is not of "ordinary prudence" in reaching their conclusion that recusal or disqualification was not required. Seemingly, the majority's conclusions might reach similar conclusions regarding the two appellate court judges who concluded that disqualification was appropriate. 

Holsclaw provides some important lessons on disqualification. Primary among them is that interpretation of the Code is based in part on perceptions. This motion was considered by multiple appellate judges and there was not unanimous consensus. Second, despite violating the Code with both improper ex parte communications and investigation, the Tennessee Supreme Court does not view disqualification as required. In fact, the Court seemingly concludes that violating the Code is not necessarily inappropriate. 

Finally, the time required for a case to thus proceed through the appellate process is apparent. When I speak publicly, I am often asked why the legal system takes so long with decisions. Motions are made in trial proceedings, and decisions are made. Appeal on an issue such as this can occur before trial even occurs, and can take months for an appellate court to decide. If a higher court, as here, intervenes, that can mean months more. And, the end result of Holsclaw is that the case now returns to the trial judge for further proceedings. The trial now picks up where it left off for consideration of the disqualification motion by the judge, the appellate court, and the Supreme Court. 

It is therefore likely in the best interests of all parties that trial judges not engage in ex parte communication and not perform independent investigations regarding a case. Although the Tennessee Supreme Court concluded that both were excusable in Holsclaw, an appellate court in another state might not agree. And, it is possible that in some future case a trial judge's supreme court might not even grant review of such a decision. It is probably better advice that judges follow the Code as it is written, and thus avoid the appearance of impropriety, the motion for disqualification, and the delays of appellate review.





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