The Florida Bar News - March 15, 2010

JAEC studies authorizing a second judge to rule on recusal motions
A subcommittee looking at judicial recusals is working on drafting a rule amendment that would have a second, independent judge look at those motions in some cases.

The panel of the Judicial Administration and Evaluation Committee met February 26 by phone to discuss its options. The committee has two subcommittees looking at the recusal issue. One is examining the substantive reasons for recusals and the second — the one that met by teleconference on the 26th — is looking at procedural issues.

The subcommittee had three basic choices. One would maintain the current rule where the affected judge rules only on the facial sufficiency of the motion, and grants the motion if that test is met. A second option would be after the affected judge finds facial sufficiency, referring the matter to a second, impartial judge who would rule on the veracity of the underlying charges. A third alternative would give a party a one-time peremptory strike of a judge, to be used fairly early in the case, and thereafter setting a high standard for recusing a judge.

The committee decided to prepare a draft amendment based on the second option, noting that comments from judges and lawyers indicated little support for peremptory challenges.

The current system has been criticized by judges, because they cannot respond to accusations made in the recusal motion, no matter how outlandish. Lawyers have criticized the process, saying it is frequently used for tactical reasons to gain a delay in a case or for judge-shopping.

The panel asked committee member Gerald Richman, a former Bar president, to draft a rule for it to consider. Richman said he would use suggestions the committee received from First District Court of Appeal Judge Philip Padovano.

That would have the judge, who is subject to the recusal motion, rule only on the facial sufficiency. If that is found, the matter would be referred to the chief circuit judge who would assign a “disinterested” judge to hear the motion, Richman said. That judge would rule based on the greater weight of the evidence, he said, but the moving party would hear the burden of proof.

He said a similar system has worked in other states, and just having the proof hearing could discourage frivolous and “tactical” motions.

“Once people know there is going to be a hearing, people are going to have to think twice about doing it and proving what they want to allege in there,” he said.

The subcommittee plans to meet again in late April to consider the draft, which it hopes to have ready for the full committee by the Bar’s Annual Convention in June.