Smith v. Santa Rosa Island Authority, 97-4624.

• Decision Date: 25 August 1998
• Docket Number: No. 97-4624.,97-4624.
• Citation: 729 So.2d 944
• Parties: Douglas SMITH, Thomas Brandon, et al., Petitioners, v. SANTA ROSA ISLAND AUTHORITY, and Gary Work Land Trust, Respondents.
• Court: Florida District Court of Appeals

729 So.2d 944

Douglas SMITH, Thomas Brandon, et al., Petitioners, v. SANTA ROSA ISLAND AUTHORITY, and Gary Work Land Trust, Respondents.

No. 97-4624.

District Court of Appeal of Florida, First District.

August 25, 1998.

David A. Theriaque of David A. Theriaque, P.A., Tallahassee, for petitioner.

Mark J. Proctor of Levin, Middlebrooks, Thomas, Mitchell, Green, Echsner, Proctor & Papantonio, P.A., Pensacola; Donald E. Hemke and Stephen L. Walker of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Pensacola, for respondent Gary Work Land Trust.

Robert L. Crongeyer and Mary Jane Thies of Beggs & Lane, Pensacola, for respondent Santa Rosa Island Authority.

PER CURIAM.

Petitioners seek certiorari review of two orders of the circuit court sitting in its appellate capacity, one denying a motion to disqualify and the other denying a petition for writ of certiorari to review a decision of the Santa Rosa Island Authority. Concluding that the circuit judge should have granted the motion to disqualify, we grant the petition for certiorari, vacate both orders, and remand for appointment of a new judge to hold further proceedings upon the petition for review of the decision of the authority.

In 1997, the Santa Rosa Island Authority (SRIA) conducted a quasi judicial hearing to consider an application of Gary Work Land Trust (GWLT), filed by Allen Levin d/b/a Island Resorts, for amendment of a lease option agreement to develop acreage on Pensacola Beach. Following the lengthy hearing, the SRIA board voted to approve GWLT's request, and a development lease agreement was thereafter executed. Petitioners sought review of the SRIA's decision by way of a petition for writ of certiorari filed with the circuit court.

At the outset of oral argument on the petition for writ of certiorari, conducted September 22, 1997, the circuit judge announced on the record:

I want all of the chips and the cards on the table.... I just want everybody to know, because you're not from here—I don't know you. I know most of the—several other people. I know Mr. Levin. Mr. Levin was born and raised in Pensacola, and so was I. I know him. I know his brothers who are lawyers. Mr. Levin is not. .... I don't—because it is the type of case it is and we really don't get into a question of, as I understand it, credibility of witnesses, where we're going to be trying the case like, you know, from a credibility issue, it doesn't bother me too much. But if we had a situation coming in here where people were testifying that I knew and it comes down to credibility of who ran the red light—you know what I mean—I would have some problems with it.

I'll be honest with you. I've known Mr. Levin for a long time. I don't know anything about him bad or anything of that nature..... So if that's going to make a difference, I want you to know it.

* * * * * *

I had no idea—Mr. Levin is probably further removed from me, quite candidly, than, for instance, Mr. Gray, who I've known ever since high school, quite honestly..... I just want to say that if that's going to create a problem, then it creates a problem. If it doesn't create a problem, then because we're not really getting into the credibility of witnesses, because they are parties and it's going to affect them, I think everybody should know that.

The judge then stated he would answer any questions from counsel regarding his knowledge of Mr. Levin, adding that he also personally knew attorney Boyles, who sat on the SRIA board. Counsel for petitioners inquired of the judge whether he felt comfortable "ruling on issues that involve millions of dollars one way or the other to the Levin family, directly to the Levin family, and to the Levin law firm." The judge responded that he frequently rendered decisions in cases handled by the Levin firm. The judge then added that he also knows attorney Gary Work. Following a recess during which counsel discussed the issue with those petitioners who were present at the hearing, counsel announced that his clients were concerned about the ability of the court to hear this matter in light of the long-term knowledge and history with the Levins in Pensacola. Counsel requested the judge to disqualify himself from reviewing the petition. Following further discussion, the judge clarified that he did not travel in the same social circles as Levin and his brothers, and stated that, with regard to rendering a decision that would impact Levin financially, "I don't have any particular heartburn either way about it." The judge reiterated that he would only have a problem deciding credibility issues. Following a renewed request for disqualification, the court orally ruled as follows:

I've made my disclosure. That's all I can do. I'm going to go ahead and hear the oral arguments. I'll give you an opportunity, Mr. Theriaque, to file a Motion for Recusal. Of course, you know and I know on a Motion for Recusal it's not to make a determination of the truth or the falsity of it, but it's whether or not it's legally sufficient. If it's legally sufficient, you know, it's legally sufficient. If it's not legally sufficient, it's denied. If it is legally sufficient, it's granted. That's all I can say.

A written motion to disqualify was filed shortly thereafter. On November 5, 1997, over a month after oral argument, the court entered an order denying the motion to disqualify, finding it to be legally insufficient. On the same date, the court entered an order denying the petition for writ of certiorari.

Section 38.10, Florida Statutes, gives litigants the substantive right to seek disqualification of a judge. Rule 2.160, Florida Rules of Judicial Administration, sets forth the procedure to be followed in the disqualification process. Respondents, urging that this rule and statutory provision and related case law are applicable only to judges sitting in their capacities as trial judges, argue that the disqualification of an appellate judge is a matter which rests largely within the sound discretion of the judge involved. However, rule 2.160(a), although entitled ...