Breakstone v. MacKenzie

Decision Date14 September 1989
Docket NumberNos. 88-2392,88-2903,s. 88-2392
PartiesArthur BREAKSTONE and Beach Enterprises, Ltd., a Florida limited corporation, Petitioner, v. Honorable Mary Ann MacKENZIE, as Judge of the Eleventh Judicial Circuit Court, in and for Dade County, Florida, Respondent. SUPER KIDS BARGAIN STORE, INC., Petitioner, v. Honorable Mary Ann MacKENZIE, as Judge of the Eleventh Judicial Circuit Court, in and for Dade County, Florida, Respondent.
CourtFlorida District Court of Appeals

William J. Berger, Miami, for petitioners Breakstone and Beach Enterprises, Ltd.

Shapiro and Weil and Murray Weil, Miami Beach, for petitioner Super Kids Bargain Store, Inc.

Robert A. Ginsburg, County Atty., and Roy Wood, Asst. County Atty., for respondent.

Richard C. Milstein, Coral Gables, Tew Jorden Schulte & Beasley and Gregory P. Borgognoni and Osmer D. Batcheller, Miami, for Dade County Bar Ass'n as amicus curiae.

Rutledge R. Liles, Jacksonville, Stephen N. Zack, Miami, John F. Harkness, Jr., Paul F. Hill, Tallahassee, for the Florida Bar as amicus curiae.

Before SCHWARTZ, C.J., and BARKDULL, HUBBART, NESBITT, BASKIN, FERGUSON, JORGENSON, COPE and LEVY, JJ.

ON HEARING AND REHEARING EN BANC

COPE, Judge.

We granted en banc consideration of two petitions for writ of prohibition which present an issue of exceptional importance relating to the disqualification of judges. See Fla.R.App.P. 9.331(a). The question common to the two petitions is whether disqualification was required where an attorney appearing before the trial judge had made a $500 contribution to the election campaign of the trial judge's husband. We hold that the motions for disqualification should have been granted. A $500 contribution by opposing counsel would, we conclude, cause a reasonable person to fear a bias by the trial judge in favor of the opposing side. We certify to the Florida Supreme Court that the question determined here is one of great public importance, so as to permit further review under article V, section 3(b)(4) of the Florida Constitution. 1

I.

The two cases under review were consolidated solely for purposes of en banc consideration. They are otherwise unrelated civil actions pending in the trial court.

The first of the motions to disqualify was filed by Breakstone, a defendant in a post-judgment garnishment proceeding. At the time the motion for disqualification was filed, the trial judge's husband was a candidate in a contested election for the office of circuit judge. Counsel for plaintiff below had contributed $500 to the husband's campaign. Petitioner Breakstone moved to disqualify the trial judge, asserting by affidavit that plaintiff's counsel was one of approximately fifteen attorneys who had contributed to the husband's campaign; that the $500 contribution was the second largest amount contributed; and that by reason of the substantial contribution Breakstone feared that he would not receive a fair and impartial trial. 2

The trial judge denied the motion as legally insufficient and stated in part:

I cannot address your motion as far as the truth or misinformation that you may have or not have or anything like that.

But I will state for the record that I kept absolutely clear of my husband's campaign, had nothing to do with it whatsoever. Couldn't go to a judicial luncheon--I went to one and it was followed all over by The Miami Herald, and that's the last time I went to anything. And who donated to his campaign and who did not donate to his campaign, I don't know. I have not looked at his records. So in no way could I be prejudiced.

Later in the hearing, the trial judge commented about her "frustration for not being in my husband's campaign.... In fact, if I had been in it, he would have won, and that's for real." 3 A renewed motion for disqualification was made on the ground that the trial judge had impermissibly commented on the merits of the disqualification motion. The renewed motion to disqualify was likewise denied.

On petition for writ of prohibition, a panel of our court held that the trial judge should have disqualified herself. Breakstone v. MacKenzie, 561 So.2d 1163 (Fla. 3d DCA 1988). The panel concluded that the substantial financial contribution by plaintiff's counsel constituted legally sufficient grounds for disqualification.

In the second of the two consolidated cases, the same $500 contributor represented the plaintiff. The defendant, Super Kids Bargain Store, Inc., moved to disqualify the trial judge on the basis of the same $500 contribution, and this court's panel opinion in Breakstone. At the hearing on the motion to disqualify, plaintiff's counsel announced he would withdraw from the case and made an ore tenus motion for substitution of counsel. The trial judge opined that the motion for disqualification was legally sufficient. She then granted the ore tenus motion for substitution and denied the motion for disqualification. Super Kids' petition for writ of prohibition was consolidated with Breakstone for purposes of en banc consideration.

II.

While the procedure for disqualification of judges in civil cases is governed by Rule 1.432, Florida Rules of Civil Procedure, the substantive standards for disqualification are found in the Code of Judicial Conduct and in section 38.10, Florida Statutes (1987). The Code of Judicial Conduct provides, in part, "that '[a] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned....' " Livingston v. State, 441 So.2d 1083, 1086 (Fla.1983) (quoting Canon 3 C(1), Fla.Bar Code Jud.Conduct). The disqualification statute provides:

Whenever a party ... files an affidavit stating that he fears he will not receive a fair trial ... on account of the prejudice of the judge ... against the applicant or in favor of the adverse party, the judge shall proceed no further, but another judge shall be designated....

§ 38.10, Fla.Stat. (1987). It is settled that "the prejudice of the judge ... against the applicant or in favor of the adverse party," id., includes prejudice against counsel for the applicant, or in favor of counsel for the adverse party. Livingston v. State, 441 So.2d at 1087.

The standards for disqualification "were established to ensure public confidence in the integrity of the judicial system...." Id. at 1086. The Florida Supreme Court has said:

"Prejudice of a judge is a delicate question to raise but when raised as a bar to the trial of a cause, if predicated on grounds with a modicum of reason, the judge against whom raised should be prompt to recuse himself. No judge under any circumstances is warranted in sitting in the trial of a cause whose neutrality is shadowed or even questioned.

....

... It is a matter of no concern what judge presides in a particular cause, but it is a matter of grave concern that justice be administered with dispatch, without fear or favor or the suspicion of such attributes. The outstanding big factor in every lawsuit is the truth of the controversy. Judges, counsel, and rules of procedure are secondary factors designed by the law as instrumentalities to work out and arrive at the truth of the controversy.

The judiciary cannot be too circumspect, neither should it be reluctant to retire from a cause under circumstances that would shake the confidence of litigants in a fair and impartial adjudication of the issues raised."

Id. at 1085-86 (quoting Dickenson v. Parks, 104 Fla. 577, 582-84, 140 So. 459, 462 (1932) (emphasis added)).

Leaving aside issues of form and timeliness, the principal issue presented in a motion for disqualification is that of legal sufficiency. See id. at 1086. The trial judge cannot pass upon the truth or falsity of the facts contained in the affidavit, nor adjudicate whether in reality prejudice exists. The facts set forth in the affidavit are taken as true, and if legally sufficient, the trial judge must withdraw.

Legal sufficiency is governed by a reasonable person standard. The affidavit must recite "facts and circumstances that would lead any normal human being in the position of [the movant] to 'fear' that he would not receive a fair trial...." Dickenson v. Parks, 104 Fla. at 582, 140 So. at 462; accord Fischer v. Knuck, 497 So.2d at 242; Livingston v. State, 441 So.2d at 1087. " 'If the attested facts supporting the suggestion are reasonably sufficient to create such a fear, it is not for the trial judge to say that it is not there.' " Livingston v. State, 441 So.2d at 1087 (quoting State ex rel. Davis v. Parks, 141 Fla. 516, 518, 194 So. 613, 614 (1939)). So long as the allegations " 'are not frivolous or fanciful, they are sufficient to support a motion to disqualify....' " Hayslip v. Douglas, 400 So.2d 553, 556 (Fla. 4th DCA 1981) (quoting State ex rel. Brown v. Dewell, 131 Fla. 566, 573, 179 So. 695, 697-98 (1938)).

The standards set forth can, of course, be a matter of frustration for a trial judge. Although the trial judge may strongly disagree with the factual matters set forth in the affidavit, the trial judge must accept the affidavit as true and consider solely the issue of legal sufficiency. Fla.R.Civ.P. 1.432; § 38.10, Fla.Stat. (1987). For that reason an order of disqualification should not be interpreted as a determination of the actual existence of prejudice, for in any such proceeding the matter asserted in the affidavits is assumed to be true, although not proven. The disqualification procedure is designed to assure the appearance and reality of impartial adjudication while avoiding the undesirable situation which could be presented by inquiry into the existence of an actual prejudice on the part of the trial judge. 4

In the present case the grounds set forth by movants are legally sufficient for disqualification. The 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...

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