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Amendments seek to tighten the rules regarding judicial disqualification

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Judge with GavelThe Board of Governors is scheduled to weigh amendments to the Rules of Judicial Administration that would change the procedure for disqualifying trial judges.

The changes are contained in the 2020 Regular Cycle Report of the Rules of Judicial Administration Committee, which is up for board review when it meets in December.

Proposed amendments to Rule 2.330 would, among other things, add a reference to “general law” to existing grounds for disqualification; require that fear of impartiality be reasonable; prohibit using new or substitute counsel as grounds for disqualification; clarify the relationships that could form a basis for disqualification; and require motions to state the “precise date” when the facts constituting grounds for disqualification were discovered.

Board member Michael Tanner of Jacksonville and liaison to the committee, urged board members to review the proposed changes carefully when he presented the package on first reading at the board’s July meeting.

The board cannot change or amend amendments prepared by procedural rules committees. Rather, its recommendations go separately to the Supreme Court, which has the final say on the amendments.

At least one proposed change, submitted by a South Florida attorney, didn’t survive a lengthy review process.

Last summer, Miami attorney Gary Fox, a former RJAC chair, wrote to the committee to warn about an alleged “obnoxious form of judge shopping” that he believes threatens the “independence and integrity of the judicial system.”

In the August 14, 2018, letter, Fox claims that a large, South Florida firm coaxed an associate to file as a candidate against a sitting circuit judge, and then cited the associate’s candidacy as grounds for disqualifying the judge from more than 25 of the firm’s cases, Fox said.

When the trial judge denied the motion to disqualify, the firm filed for writs of prohibition with the Third District Court of Appeal. Those requests were also denied.

Even if the alleged tactic failed on all points — the associate lost the election — Fox insists the incident exposed a vulnerability in the rule that should be addressed.

“I don’t know that it happens very often, but my great fear is that this tactic might work in other places,” Fox said “Let’s cut this off at the pass, let’s develop the rule so that judges don’t have to worry about this.”

Fox proposed adding a paragraph to the end of Subsection (b): “A party, by its own conduct or that of an attorney or law firm representing it, cannot create circumstances that give rise to the motion.”

Fox based his proposed language on a 1998 First District Court of Appeal Opinion, Sybers v. State, in which the court opined, “The party moving to disqualify a judge cannot create the very bias of which he complains.”

In January, an RJAC subcommittee reviewed Fox’s proposal and decided it went beyond the purview of the committee. Citing the Sybers decision and Florida Statute 38.10, which also sets a procedure for disqualifying trial judges, the subcommittee chair decided that “it would be inappropriate to include substantive law in the rule.”

Fox calls the proposed changes “a good start,” particularly the provision that would prohibit the addition of new or substitute counsel from being used as grounds for disqualification.

But he thinks the rule could be strengthened further to address his concern.

“The real key is simply making it clear that a lawyer or party can’t do something themselves, or take an act, that ultimately leads to the motion to disqualify,” he said. “They shouldn’t be able to do something, and then claim, ‘Hey man, the judge ought to be disqualified because of this thing that we did.’”