565 So.2d 1332 (Fla. 1990), 74798, MacKenzie v. Super Kids Bargain Store, Inc.

Docket Nº:74798, 74800.
Citation:565 So.2d 1332, 15 Fla. L. Weekly S 397
Party Name:Honorable Mary Ann MacKENZIE, Petitioner, v. SUPER KIDS BARGAIN STORE, INC., Respondent. Honorable Mary Ann MacKENZIE, Petitioner, v. Arthur BREAKSTONE and Beach Enterprises, Ltd., Respondent.
Case Date:July 19, 1990
Court:Supreme Court of Florida
 
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Page 1332

565 So.2d 1332 (Fla. 1990)

15 Fla. L. Weekly S 397

Honorable Mary Ann MacKENZIE, Petitioner,

v.

SUPER KIDS BARGAIN STORE, INC., Respondent.

Honorable Mary Ann MacKENZIE, Petitioner,

v.

Arthur BREAKSTONE and Beach Enterprises, Ltd., Respondent.

Nos. 74798, 74800.

Supreme Court of Florida.

July 19, 1990

Page 1333

Robert A. Ginsburg, Dade County Atty., and Roy Wood, Asst. County Atty., Miami, for petitioner.

Murray B. Weil, Jr. of Shapiro and Weil, Miami Beach, for Super Kids Bargain Store, Inc.

William J. Berger of Hughes, Hubbard & Reed, and Joel D. Eaton of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, for Arthur Breakstone and Beach Enterprises, Ltd.

Ronald A. Labasky and Keith C. Tischler of Parker, Skelding, Labasky and Corry, Tallahassee, amicus curiae for Conference of Circuit Judges.

Barry Richard of Roberts, Baggett, LaFace & Richard, Tallahassee, amicus curiae for The Florida Bar.

Charles H. Baumberger, President, and Gregory P. Borgognoni of Tew, Jorden & Schulte, Miami, amicus curiae for Dade County Bar Ass'n.

Edith Broida, Miami Beach, in pro. per., amicus curiae.

EHRLICH, Justice.

We have for review Breakstone v. MacKenzie, 561 So.2d 1164 (Fla.1989), in which the Third District Court of Appeal granted en banc consideration of two petitions for writs of prohibition. The question common to the two petitions is whether disqualification of a judge is required on motion where an attorney appearing before the trial judge had made a $500 contribution to the political campaign of the trial judge's husband. The district court determined that the ground set forth by the movants is legally sufficient for disqualification. The district court then certified the above question as one of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

The first of the motions to disqualify was filed by Breakstone, a defendant in a postjudgment

Page 1334

garnishment proceeding. Breakstone's motion to disqualify the judge asserted by affidavit that counsel for plaintiff below had contributed $500 to the political campaign of the judge's husband; that the $500 contribution was the second largest amount contributed; and because of this substantial contribution, Breakstone feared that he would not receive a fair and impartial trial. The trial judge's husband was a candidate in a contested election for the office of circuit judge at the time the motion for disqualification was filed. The trial judge denied the motion as legally insufficient. On petition for writ of prohibition, a panel of the Third District Court of Appeal held that the substantial financial contribution by plaintiff's counsel constituted a legally sufficient ground for disqualification. Breakstone v. MacKenzie, 561 So.2d 1164 (Fla.1988).

In the second case, the same $500 contributor represented the plaintiff. Super Kids Bargain Store, Inc., the defendant in that case, moved to disqualify the trial judge on the basis of the same $500 contribution, and the Third District Court's panel opinion in Breakstone. The trial judge opined that the motion for disqualification was legally sufficient, on the basis of the district court's panel opinion. Nonetheless, the trial judge first granted an ore tenus motion for substitution made by plaintiff's counsel and then denied Super Kids' motion for disqualification.

Super Kids' petition for writ of prohibition was consolidated with Breakstone for purposes of en banc consideration. After hearing and rehearing en banc, a majority of the Third District Court held that the ground set forth by the movants is legally sufficient for disqualification. The majority noted that

[t]he movants swore that they had a fear of prejudice on account of opposing counsel's $500 contribution to the election campaign of the judge's spouse. The relevant benchmark, while imprecise, is determined on a case by case basis. A $500 contribution is a substantial one by any standard. Certainly the ordinary litigant does not make, or have the financial capacity to make, a $500 contribution. Where the opposing litigant or opposing counsel has made such a contribution, a reasonable person in the position of movants would fear that he would not receive a fair trial.

561 So.2d at 1168. Accordingly, the court below ultimately concluded that the trial judge should have granted the motions for disqualification.

Section 38.10, Florida Statutes (1987), gives litigants a substantive right to seek the disqualification of a trial judge. This section provides, in part:

Whenever a party to any action or proceeding makes and files an affidavit stating that he fears he 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 the applicant or in favor of the adverse party, the judge shall proceed no further, but another judge shall be designated in the manner prescribed by the laws of this state for the substitution of judges for the trial of causes in which the presiding judge is disqualified. Every such affidavit shall state the facts and the reasons for the belief that any such bias or prejudice exists....

Florida Rule of Civil Procedure 1.432, which sets forth the procedural aspects of the disqualification process, provides:

(d) Determination. The judge against whom the motion is directed shall determine only the legal sufficiency of the motion. The judge shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall enter an order of disqualification and proceed no further in the action.

The facts alleged in the motion need only show a well-grounded fear that the movant will not receive a fair trial at the hands of the judge. "The question of disqualification focuses on those matters from which a litigant may reasonably question a judge's impartiality rather than the judge's perception of his ability to act fairly and impartially." Livingston v. State, 441 So.2d 1083, 1086 (Fla.1983). In order to decide whether the motion is legally sufficient,

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"[a] determination must be made as to whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial." Id. at 1087. The legal sufficiency of the motion is purely a question of law.

It cannot be denied that some persons may perceive that the judge will be biased in favor of the contributing litigant or attorney based solely on the fact that a contribution was made. As noted above, however, the standard for determining whether a motion is legally sufficient is "whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial." 441 So.2d at 1087 (emphasis added). We conclude that an allegation in a motion that a litigant or counsel for a litigant has made a legal campaign contribution to the political campaign of the trial judge, or the trial judge's spouse, 1 without more, is not a legally sufficient ground. A judge is not required to disqualify himself or herself on motion based solely upon such alleged facts. Our conclusion is based upon the interplay of our state constitution, code of judicial conduct, and campaign statutes.

Article V, section 10(b), of the Florida Constitution provides that circuit judges and judges of county courts shall be elected by vote of the qualified electors within the territorial jurisdiction of their respective courts. Justices of the Supreme Court and judges of a district court of appeal may be retained in office by a vote of the electors in the general election next preceding the expiration of their term. Art. V, § 10(a), Fla. Const. By ratification of article V of the state constitution, the citizens of Florida have chosen to retain the power to elect county and circuit judges and the power to remove by vote judges of the district courts of appeal and justices of the Supreme Court. As with other elections, judicial elections involve campaigns. As with other campaigns, judicial campaigns require funds. Judicial campaigns and the resultant contributions to those campaigns, therefore, are necessary components of our judicial system.

This is not to say that contributions to judicial campaigns may never be cause for reasonable concern. Experience tells us otherwise. As this Court noted in Richman v. Shevin, 354 So.2d 1200, 1203 (Fla.1977), cert. denied, 439 U.S. 953, 99 S.Ct. 348, 58 L.Ed.2d 343 (1978), the United States Supreme Court has articulated two concerns raised by contributions to campaigns for public office: "1. The tendency or possibility to create a quid pro quo relationship and, 2. The creation of an appearance of influence or corruption."

Under a system of private financing of elections, a candidate lacking immense personal or family wealth must depend on financial contributions from others to provide the resources necessary to conduct a successful campaign. The increasing importance of the communications media and sophisticated mass-mailing and polling operations to effective campaigning make the raising of large sums of money an ever more essential ingredient of an effective candidacy. To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined....

. . . . .

Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions.... [T]he avoidance of the appearance of improper influence "is also critical ... if confidence in the system of representative Government is not to be...

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