RICHARD MASTEN, PETITIONER,
v.
THE STATE OF FLORIDA, ET AL., RESPONDENTS
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Richard Masten sought a writ of prohibition challenging the trial judge's denial of his motion to disqualify based on ex parte communications. The court granted the petition, finding that the judge's emails to the Attorney General's Office constituting improper ex parte communications and the judge's subsequent response suggesting a personal interest in the appeal violated the appearance of judicial impartiality required by law.
The trial judge erred in both sending the ex parte emails and filing a response suggesting she held a personal interest in the appeal. The facts alleged in Masten's verified motion, taken as true, established grounds for disqualification because they created an objectively reasonable, well-grounded fear that Masten could not receive a fair and impartial trial.
[1] A judge's ex parte communication with a party's counsel regarding pending litigation creates an appearance of impropriety requiring disqualification.
[2] A judge who interjects himself into litigation and assumes the role of an adversary may be disqualified.
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Join FLexlaw to unlock all legal intelligence“The most insidious result of ex parte communications is their effect on the appearance of the impartiality of the tribunal. The impartiality of the trial judge must be beyond question.”
Establishes the fundamental principle that ex parte communications undermine judicial impartiality
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Join FLexlaw to unlock all legal intelligenceMasten was charged with direct criminal contempt, found guilty, and sentenced to probation. When he moved for a stay of his sentence, the trial judge …
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Richard Masten seeks a writ of prohibition contending the trial judge erred in denying his motion to disqualify. We find the motion was legally sufficient to require recusal.
Masten was charged with direct criminal contempt, found guilty, and sentenced to probation. He moved for a stay of his sentence, which was denied. He then sought review of the denial. In the meantime, Masten was charged with violating his probation.
On learning that Masten sought review of the denial' of the stay, the trial judge sent the Attorney General’s Office a twenty-one paragraph email containing various arguments “intended to assist you in rebutting entitlement to a stay.” The trial judge’s chambers sent further emails attaching documents and transcripts. Neither Masten nor his attorneys were copied or included in these communications. The Attorney General’s Office commendably advised all parties of the emails.
Once the judge’s emails were revealed, Masten filed a verified motion to disqualify. The trial judge denied the motion. Masten then filed an appeal which we now treat as a petition for a writ of prohibition. Through counsel, the trial judge filed a response to the petition which referred to “the purported ex parte communication” and expressed the view that the trial judge “reasonably expected that the Attorney General’s Office would represent her interests [in the review of the stay].”
Without belaboring the point, the trial judge erred in sending the emails which clearly constituted ex parte communications. Rose v. State, 601 So.2d 1181, 1183 (Fla.1992) (“The most insidious result of ex parte communications is their effect on the appearance of the impartiality of the tribunal. The impartiality of the trial judge must be beyond question.”); Rollins v. Baker, 683 So.2d 1138, 1140 (Fla. 5th DCA 1996) (“[The judge] has interjected himself into the litigation and has assumed the role of an adversary. This- alone is a basis for disqualification.”).
The trial judge also erred by filing a response which suggested she held both a personal interest in the appeal of the stay and 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. Condo. Ass’n, Inc., 153 So.3d 384, 385 (Fla. 3d DCA 2014) (citation and quotation omitted). Based on the facts of Masten’s verified motion, which we must take as true, and the statements in the judge’s response, Masten could have “an objectively reasonable, well-grounded fear of not receiving a fair and impartial trial.” Rodgers v. State, 948 So.2d 655, 673 (Fla.2006).
We ask much from our trial judges. Nowhere do we ask more than when a litigant acts in open and obvious contempt of the court. On one hand, the trial court must maintain control of the courtroom *998and uphold the dignity of the legal process by enforcing obedience to court orders. On the other hand, the trial court, no matter how much his or her patience is taxed by a misbehaving litigant, must never abandon the outlook and appearance of a dispassionate and objective magistrate.
We therefore grant the petition, but are confident it will be unnecessary to formally issue the writ. Kopel v. Kopel, 832 So.2d 108 (Fla. 3d DCA 2002)..
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State v. Ambrose Dixon and Johan Matienzo, 217 So. 3d 1115 (Fla. 3d DCA 2017)…receiving a fair and impartial trial.” Livingston v. State, 441 So. 2d 1083, 1087 (Fla. 1983); State v. Borrego, 105 So. 3d 616, 619 (Fla. 3d DCA 2013). The allegations of fact that are contained in the motion must be taken as true, Masten v. State, 159 So. 3d 996, 997 (Fla. 3d DCA 2015), and “the question of disqualification focuses not on what the judge intended, but rather how the message is received and the basis of the feeling.” Great Am. Ins. Co. of N.Y. v. 2000 Island Boulevard Condo. Ass’n, 153 So. 3d…
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Cisneros v. Guinand, 298 So. 3d 1184 (Fla. 3d DCA 2021)…s, 298 So. 3d 1184, 1185 (Fla. 3d DCA 2020) (quoting Colarusso v. Colarusso, 20 So. 3d 985, 986 (Fla. 3d DCA 2009); Fla. R. Jud. Admin. 2.330(d)(1)). “The allegations of fact that are contained in the motion must be taken as true, Masten v. State, 159 So. 3d 996, 997 (Fla. 3d DCA 2015), and ‘the question of disqualification focuses not on what the judge intended, but rather how the message is received and the basis of the feeling.’” Nguyen v. Nguyen, 229 So. 3d 407, 407 (Fla. 3d DCA 2017) (quoting Great…
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State v. Octavio Oliu, 183 So. 3d 1161 (Fla. 3d DCA 2016)…reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.” Valdes-Fauli v. Valdes-Fauli, 903 So. 2d [*1163] 214, 216 (Fla. 3d DCA 2005). The allegations contained in the motion must be taken as true. Masten v. State, 159 So. 3d 996, 997 (Fla. 3d DCA 2015). Actual bias or prejudice need not be shown, rather, it is the appearance of bias or prejudice which requires disqualification. Marcotte v. Gloeckner, 679 So. 2d 1225, 1226 (Fla. 5th DCA 1996). In the instant criminal. case,…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rodgers v. State, 948 So. 2d 655 (Fla. 2006)
- Rose v. State, 601 So. 2d 1181 (Fla. 1992)
- Ellis v. The Honorable Patti Englander Henning, 678 So. 2d 825 (Fla. 4th DCA 1996)
- Kopel v. Bernardo Kopel, 832 So. 2d 108 (Fla. 3d DCA 2002)
- Rollins v. Hon. Joseph P. Baker, 683 So. 2d 1138 (Fla. 5th DCA 1996)
- Great Am. Ins. Co. OF NEW York v. 2000 Island Boulevard Condo. Ass'n, Inc., 153 So. 3d 384 (Fla. 3d DCA 2014)