JEANNIE ELLIS AND CLIVE ELLIS, HER HUSBAND, AND REUBEN ELLIS, HER MINOR CHILD, BY AND THROUGH HIS PARENTS AND NATURAL GUARDIANS, JEANNIE ELLIS AND CLIVE ELLIS, PETITIONERS,
v.
THE HONORABLE PATTI ENGLANDER HENNING, CIRCUIT COURT JUDGE OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA, RESPONDENT
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Nine consolidated cases where plaintiffs sought disqualification of a circuit court judge based on alleged animosity toward their counsel. The appellate court denied the disqualification motions on the merits but granted the writ of prohibition because the judge impermissibly responded to the disqualification petitions through the attorney general's office, thereby assuming an adversarial posture.
The court held that the allegations of the judge's conduct did not, standing alone without a transcript or full factual context, constitute sufficient grounds for disqualification. However, the court granted the writ of prohibition because by filing responses through the attorney general that indirectly disputed plaintiffs' allegations, the judge assumed an adversarial posture in violation of proper procedure.
[1] A trial judge's expression of dissatisfaction with counsel's behavior alone does not create a reasonable belief of bias requiring recusal.
[2] Allegations of a trial judge treating counsel with disdain and animosity, without sworn factual allegations concerning the context, are insufficient grounds for disqualif…
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Join FLexlaw to unlock all legal intelligence“A trial judge's expression of dissatisfaction with counsel or a client's behavior alone does not give rise to a reasonable belief that the trial judge is biased and the client cannot receive a fair trial.”
Establishes the standard for disqualification based on judicial conduct toward counsel
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Join FLexlaw to unlock all legal intelligenceAll nine cases involved different civil lawsuits represented by the same law firm of Sheldon J. Schlesinger, P.A. Plaintiffs alleged that the trial ju…
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PARIENTE, Judge.
We sua sponte consolidate these nine cases involving the identical issue of whether the trial judge should be disqualified from presiding over petitioners’ (plaintiffs) civil lawsuits. Although the subject matter of the civil cases is unrelated, the common thread is the representation of all plaintiffs by the law firm of Sheldon J. Schlesinger, P.A. Plaintiffs seek disqualification based on alleged animosity between the trial judge and the law firm as evidenced by the trial judge’s actions in a series of proceedings culminating with her conduct during a September 21, 1995 calendar call in the Ellis case.
Supporting affidavits allege that the trial judge treated plaintiffs’ counsel with “disdain and obvious animosity” and addressed counsel in a “hostile, angry manner and in a tone, expression, and body language that evinced anger, hostility, and personal contempt.” The affidavits further allege that the trial judge accused the law firm of “playing word games,” and of “making misrepresentations ‘every time you come in here,’ and ... trying to ‘turn this Court inside out.’ ” According to the response filed by defendant Strax, whose counsel was present at the untran-scribed calendar call, plaintiffs’ allegations are a mischaracterization of the trial judge’s comments taken out of context. Defendant Strax maintains that the comments were incident to the trial judge’s concerns over the failure of plaintiffs’ counsel to comply with discovery and her finding of willful violation of a court order. Without a transcript or sworn factual allegations concerning the context in which the trial judge’s alleged comments arose, we do not find that the allegations in plaintiffs’ motions to disqualify set forth a legally sufficient ground for recusal. See Fischer v. Knuck, 497 So. 2d 240 (Fla.1986). A trial judge’s expression of dissatisfaction with counsel or a Ghent’s behavior alone does not give rise to a reasonable belief that the trial judge is biased and the client cannot receive a fair trial. See, e.g., Oates v. State, 619 So. 2d 23 (Fla. 4th DCA), review denied, 629 So. 2d 134 (Fla.1993); Nassetta v. Kaplan, 557 So. 2d 919 (Fla. 4th DCA 1990). We also do not regard the trial judge’s statements made in connection with the motions to disqualify to constitute an improper attempt to dispute the truth of the facts alleged. See Barwick v. State, 660 So. 2d 685 (Fla.1995), cert. denied, — U.S. —, 116 S.Ct. 823, 133 L.Ed.2d 766 (1996); Nassetta.
Unfortunately, we are compelled to grant the writ of prohibition because the responses, filed on behalf of the trial judge by an assistant attorney general in each of the consolidated cases, impermissibly took issue with the accuracy of plaintiffs’ allegations. See Fabber v. Wessel, 604 So. 2d 533 (Fla. 4th DCA 1992), review denied, 617 So. 2d 322 (Fla.1993); Gieseke v. Moriarty, 471 So. 2d 80 (Fla. 4th DCA 1985). While the responses do not directly controvert the allegations, they do so indirectly by embracing the factual allegations contained in Strax’s response. The responses unmistakably convey the impression that plaintiffs’ allegations are an incorrect and incomplete account of the factual circumstance. By these responses, the trial judge assumed the posture of an adversary.
We caution once again, as we did in Fabber, that while filing a response in a prohibition proceeding is not per se grounds for recusal, “it is decidedly dangerous for the judge to do so.” Fabber, 604 So. 2d at 534. We can appreciate the frustration of a trial judge who may be wrongfully accused of improper conduct in an untranscribed hearing where her words are taken out of context. See Rogers v. State, 630 So. 2d 513, 516 (Fla.1993).
We likewise recognize that the trial judge may have merely referred this case to the attorney general’s office for a response as judges frequently do. It is thus also the responsibility of the office of the attorney general as the judge’s representative not to file a response on the judge’s behalf, which, as in this case, requires the judge’s disqualification. In a prohibition proceeding before this court, we reiterate that it is the safer practice “for the judge to remain silent and let the adversarial party supply the response.” Fabber, 604 So. 2d at 534.
PROHIBITION GRANTED.
WARNER and STEVENSON, JJ., concur.
PER CURIAM.
Respondent Henning has moved for rehearing, rehearing en banc and clarification in which defendants joined. We deny rehearing and rehearing en banc, but grant respondent’s motion for clarification solely to address the concern expressed by respondent that a failure to respond could result in the issuance of a writ of prohibition if a respondent judge follows our advice and remains silent. This concern arises only in those cases where the adversarial party — for whatever reason — also does not respond.
In Daugherty v. McNeal, 643 So. 2d 665 (Fla. 5th DCA 1994), and Paulson v. Evander, 633 So. 2d 540 (Fla. 5th DCA 1994), the fifth district issued the writs after no response to the court’s order to show cause had been filed. In practical terms, there may be those times that both parties desire that another judge hear the ease or where an adversarial party simply fails to respond.
In cautioning the assistant attorney general about the dangers of filing a response, our concern was that a response, which contests the accuracy of the facts alleged by a petitioner, impermissibly places the trial judge in an adversarial posture. This is what led to our decision in Fabber v. Wessel, 604 So. 2d 533 (Fla. 4th DCA 1992), review denied, 617 So. 2d 322 (Fla.1993), and what has led to our decision here.
On the other hand, nothing prevents the assistant attorney general, on behalf of the trial judge, from limiting a response to the legal sufficiency of the facts set forth by the petitioner. The respondent simply must avoid the temptation to dispute the facts if a response is filed. In the overwhelming majority of the cases, the office of the attorney general has struck the necessary balance.
WARNER, PARIENTE and STEVENSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Rollins v. Hon. Joseph P. Baker, 683 So. 2d 1138 (Fla. 5th DCA 1996)…d himself into the litigation and has assumed the role of an adversary. This alone is a basis for disqualification. Bundy v. Rudd, 366 So. 2d 440 (Fla.1978); Mac-Kenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla.1990); Ellis v. Henning, 678 So. 2d 825 (Fla. 4th DCA 1996); Gieseke v. Moriarty, 471 So. 2d 80 (Fla. 4th DCA 1985). Judgés are often confronted with the dilemma of whether or not to respond to a show cause order in these types of eases. Perhaps the best course of action is to request th…
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Fields v. Klein, 946 So. 2d 119 (Fla. 4th DCA 2007)…ee Mansfield v. State, 911 So. 2d 1160 (Fla. 2005); Thomas v. The Chase Manhattan Bank, 857 So. 2d 989 (Fla. 4th DCA 2003), receded from on other grounds, Santa Catalina Townhomes, Inc. v. Mirza, 942 So. 2d 462 (Fla. 4th DCA 2006); Ellis v. Henning, 678 So. 2d 825 (Fla. 4th DCA 1996). [*122] The action is remanded to the trial court with direction to vacate the order finding the contingency had been realized and the final judgment predicated on that order and to grant the motion for leave to amend. Reversed…
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Masten v. State, 159 So. 3d 996 (Fla. 3d DCA 2015)…an expectation the Attorney General’s Office would represent “her interest” in the appeal. “In a prohibition proceeding ... it is the safer practice for the judge to remain silent and let the adversarial party supply the response.” Ellis v. Henning, 678 So. 2d 825, 828 (Fla. 4th DCA 1996) (citation and quotation omitted). “It has long been said in the courts of this state that every litigant is entitled to nothing less than the cold neutrality of an impartial judge.” Great Am. Ins. Co.v. 2000 Island Blvd. Co…
Previewing 3 of 22 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anne Marie Fischer v. Honorable Francis X. Knuck, 497 So. 2d 240 (Fla. 1986)
- Barwick v. State, 660 So. 2d 685 (Fla. 1995)
- Rogers v. State, 630 So. 2d 513 (Fla. 1993)
- Nassetta v. Stanton S. Kaplan, 557 So. 2d 919 (Fla. 4th DCA 1990)
- Eldred Oates v. State, 619 So. 2d 23 (Fla. 4th DCA 1993)
- C.J. v. State, 471 So. 2d 80 (Fla. 3d DCA 1985)
- Gieseke v. The Honorable Estella May Moriarty, 471 So. 2d 80 (Fla. 4th DCA 1985)
- Fabber v. Judge John D. Wessel, 604 So. 2d 533 (Fla. 4th DCA 1992)
- Paulson v. Hon. Kerry I. Evander, 633 So. 2d 540 (Fla. 5th DCA 1994)
- Daugherty v. Hon. Raymond T. McNEAL, 643 So. 2d 663-665 (Fla. 5th DCA 1994)