Scussel v. Kelly

• Decision Date: 02 May 1963
• Docket Number: No. 3942,3942
• Parties: George P. SCUSSEL and Louise W. Scussel, his wife, and Charlie Luckie, Jr., Relators, v. Richard KELLY, Respondent.
• Court: Florida District Court of Appeals

Page 767

152 So.2d 767

George P. SCUSSEL and Louise W. Scussel, his wife, and Charlie Luckie, Jr., Relators, v. Richard KELLY, Respondent.

No. 3942.

District Court of Appeal of Florida, Second District.

May 2, 1963.

Dayton, Dayton & Luckie, Dade City, and T. Paine Kelly, Jr., of Macfarlane, Ferguson, Allison & Kelly, Tampa, for relators.

Richard W. Ervin, Atty. Gen., Tallahassee, Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for respondent.

ALLEN, Judge.

Pursuant to a suggestion for writ of prohibition filed by relators Scussel and Luckie, this court issued a rule nisi directed to the Honorable Richard Kelly, Circuit Judge, Sixth Judicial Circuit, presiding in Dade City, Pasco County, which County, with Pinellas County, constitutes the Sixth Judicial Circuit of Florida. A motion to quash the rule has been filed by Judge Kelly, as has a return which is included in the brief filed in behalf of Judge Kelly by the Attorney General and Assistant Attorney General of the State of Florida.

The suggestion for the writ of prohibition requested that Judge Kelly be prohibited from proceeding any further in the case of State Road Department of Florida v. Aiken, et al., Law case #1753, pending in the Circuit Court in and for Pasco County, Florida, a case in which relators Scussel are parties and relator Luckie is their attorney of record, and also requested that Judge Kelly be prohibited from proceeding with three criminal contempt cases filed against relator Luckie as a result of his activity in attempting to secure disqualification of Judge Kelly in the Aiken case. The criminal contempt charges are predicated on Luckie's having filed three affidavits in support of a suggestion for disqualification prescribed by Fla.Stat. 38.10, F.S.A. (1961). One of these affidavits was his own and two were supporting affidavits. The affiant in one of the supporting affidavits, E. B. Larkin, had also been cited for contempt and his suggestion for prohibition, the rule issued, and return thereon form the crux of a companion case, Fla.App., 152 So.2d 783, consolidated with the principal case, No. 3942, for oral argument.

It is regrettable that we must detail in this opinion allegations that we would much prefer to delete because of the high position which the respondent, Judge Kelly, occupies and the unnecessary and unwarranted reflection that a case of this kind brings upon the entire judiciary and the Bar of Florida in the eyes of the public.

We shall deal first with that portion of the suggestion and consequent rule nisi which seeks to prohibit Judge Kelly from proceeding further in the State Road Department v. Aiken case. On March 18, 1963, relators George and Louise Scussel, parties-defendant in the Aiken case, then pending in Judge Kelly's court, filed in that court their suggestion for the disqualification of Judge Kelly. Their suggestion stated that they were represented by Mr. Charlie Luckie, Jr., of the law firm of Dayton, Dayton and Luckie of Dade City and that they believed that Judge Kelly was so biased against their counsel that they would be unable to obtain a fair and impartial trial of the issues involved in the cause.

It must be kept in mind at this point, particularly in view of the unfortunate effect of a case like this to reflect adversely on both the bench and Bar, that the party's allegations, made as a basis for the fear of a party or attorney that he will not receive a fair trial, often do not mean that the judge is himself prejudiced. Such charges or allegations are most often based on a background of conduct or of various cases over which the judge presided which provides the basis for a party's fear that he would not receive a fair trial. It could often be the case that the moving party feels the judge will 'lean over backwards' to keep from ruling against the other party because of the judge's fear that he might be considered prejudiced against the adverse party and the judge's inherent nature is such that he would try to be fair--thus perhaps unconsciously prejudicing the moving party. A similar situation often develops on the athletic field when the referee or umpire is called upon to perform between his home town or college team and a team from another city or college. In any event, the allegation of fear of prejudice, whether positive or negative, need only be reasonable and may well be, in actuality, ill-founded. This requirement of reasonableness, as distinct from conclusiveness, is demonstrated by the fact that the judge to whom the petition is directed has no right to pass on the truth or falsity of facts set forth in affidavits, but must promptly determine if the suggestion and affidavits are sufficient in terms of compliance with statutory procedure and, if their sufficiency is determined, promptly recuse himself. It must also be remembered that in detailing the facts set forth in the suggestion, we do not pass upon the truth or falsity of these facts, nor do we indulge in the presumption as to whether Judge Kelly is, or is not, prejudiced. The facts are set forth solely for the purpose of determining whether the suggestion and supporting affidavits state facts and reasons for the belief that the parties fear that they will not receive a fair trial on account of the prejudice of the judge. The facts stated are considered only in the light of the question as to whether or not they reveal a reasonable basis for the parties' fears or are frivolous and fanciful.

Attached to the suggestion of disqualification were the affidavits of Scussel and his wife and the affidavit of their attorney Luckie, the affidavits of two reputable citizens of the county who were not related to the defendants or their counsel and a certificate of good faith executed by the Scussels' counsel of record. Also appended were the suggestion of disqualification, affidavits, opinion and order of disqualification and response by counsel to the opinion and order of disqualification in the case of James T. Haymons v. T. L. Groover, d/b/a Safety Cab Co., Law No. 1607, a case formerly pending before Judge Kelly.

The essential basis for the fear of prejudice expressed in the Scussels' suggestion of disqualification is revealed in the appended affidavit of their attorney Luckie, who, after stating his beliefs that Judge Kelly was biased and prejudiced against him and his partner, that as a result their clients could not receive a fair trial and that Judge Kelly should disqualify himself in the cause, proceeded to allege the factual matters upon which his beliefs and fears were based.

Luckie first stated that he and his partner Dayton had, at an earlier time, filed a suggestion of disqualification against Judge Kelly in the case of Haymons v. Groover, Law Case 1607, as a result of which Judge Kelly entered an opinion and order of disqualification in which he apologized to the affiant and his partner for any statements which gave rise to the suggestion for disqualification and that Luckie and his partner had filed a response to that opinion and order wherein they accepted Judge Kelly's apology.

Affiant continued with statements that subsequent to that time the affiant and his law partner made a sincere effort to cooperate and work in harmony with Judge Kelly, but in spite of their efforts, it had not worked out. Judge Kelly had appointed Luckie to represent an indigent defendant, Willie Charles Hill who was indicted and tried for first degree murder in Pasco County. During that trial Judge Kelly improperly intervened by unnecessarily interrupting counsel in their arguments and addressing counsel and the defendant in a controversial manner or tone. Affiant stated the following as remarks made by Judge Kelly during that trial:

'Mr. Luckie, aren't we in this position? This defendant has at least written out in his own hand a statement which clearly and concisely shows his guilt in this particular case. (R 363).'

'But what we are faced with is the fact that because he was illegally arrested, then because of--even though what he told is the truth, and he is guilty as sin, the fact is that he told the truth while under duress and he did not do so voluntarily, and the law is couched in such terms to protect the guilty as well as the innocent. Is that the proposition you're putting to the Court? (R 363-364)'

As further evidence of the circumstances in the Hill case, affiant states that in that case Judge Kelly insisted upon certain evidence (State's Exhibit No. 1) being admitted into evidence in spite of the fact that it was not proffered by the State's Attorney and despite the State's Attorney having announced to the Court that he was not sure that this piece of evidence, being a written confession, had been freely and voluntarily made.

Affiant then states that he, in conjunction with 18 other practicing attorneys in Pasco County, petitioned the State Senator and State Representative of Pasco County to pass a bill taking Pasco County out of the Sixth Judicial Circuit, putting the said county in the Fifth Judicial Circuit, and providing that Judge Kelly continue as a judge of the Sixth Judicial Circuit, which office he is now holding, and that Judge Kelly, upon hearing about the move by affiant and the other attorneys, called a newspaper and gave a statement to a reporter from the St. Petersburg Times denouncing the move by these attorneys as being a 'straight gerrymandering by one political party' and said it could 'destroy the non-partisan character of the court' and further denouncing the move as being inspired by democratic lawyers. Attached to Luckie's affidavit was a copy of the newspaper article setting forth the comments of Judge Kelly to the said newspaper reporter.

Affiant stated that on February 26th, 1963, Judge Kelly made a speech before the Women's Republican Club at Zephyr Hills, Florida, during which speech he mentioned Luckie by name and labeled the proposed judicial circuit change as 'sinister' and an...