One of the most confounding topics for attorneys and judges is the disqualification process. There are ambiguities, questions, and challenges regarding the foundation (why) and the process (how). It is admittedly not the simplest of subjects, but the fundamentals are reasonably straightforward.
The foundation begins with the legislative decision that all Judges of Compensation Claims will be governed by the Code of Judicial Conduct. Section 440.442, Fla. Stat. That Code grew from a dissatisfaction with one federal judge's concurrent employment as Commissioner of Baseball back in the early 20th century. Conceived and recommended by the American Bar Association (a voluntary organization with lawyer members), the original effort evolved into the Model Code of Judicial Conduct.
Authority is important to some. It is therefore noteworthy that the "model" conceived by this voluntary organization has no force or authority. It is a recommendation or model drafted by thinkers and writers. However, the states have the authority to regulate their judges and lawyers. Various states have adopted a Code, whether based on the ABA effort/template or not. Florida has. The Judiciary, an independent constitutional branch of Florida government has adopted the Florida Code of Judicial Conduct.
For clarity, that adoption renders all members of the Florida Judiciary subject to the Code's requirements. Judges of Compensation Claims (JCC) are not "constitutional judges," that is not part of the Judiciary. The JCCs are part of the Executive Branch, and therefore not affected by the Court's adoption of the Code. Thus, the statutory mandate above adopts the Code and renders it law in this system.
The Florida Code of Judicial Conduct begins with the premise that judges are supposed to hear cases. That may seem obvious, but the Code spells it out in Canon 3.B.(1):
"(1) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required."
The default is therefore to hear and decide the cases which are assigned. This is a duty that cannot be taken lightly. There will be cases in the life of every trial judge that may be not be wanted, whether because of subject matter, personalities, or otherwise. But, that a judge does not like a particular dispute is not an issue of disqualification. The default is for the judge to ("shall") hear the case. The exception is those instances "in which disqualification is required."
The Florida Courts have also adopted a variety of rules that govern the manner in which Courts function. These are the Rules of Judicial Administration, adopted by the Florida Supreme Court, and thus applicable to the Judiciary. In that the JCCs are not in that branch, the Rules of Judicial Administration (RJA) do not apply to workers' compensation disputes generally. At least once a year I have to explain that to some attorney who is striving to comprehend either that this Office is not a court or that these rules generally apply only to courts.
It should not be difficult. Those rules clearly state they "shall apply to administrative matters in all courts to which the rules are applicable by their terms." The critical word there is, of course, "courts." A great many lawyers unfortunately insist on referring to the JCCs as a "court," even filing documents that refer to "this court." Some judges fail to correct that error, allowing or even encouraging the persistence of the mistaken assumption of the status of a "court." Of course, "the Office of the Judges of Compensation Claims (OJCC) is not a court." Furthermore, the Supreme "Court has no authority" or has "ever had" "authority to promulgate rules of practice and procedure for" the OJCC. Amendments to the Fla. Rules of Workers' Comp. Procedure, 891 So. 2d 474, 477-478 (Fla. 2004). The confusion of practitioners and the public is as lamentable as it is avoidable.
The process for judicial disqualification is set forth in Rule 2.330 of the RJA. This rule applies to the JCCs, not because the Supreme Court adopted it, but because the Court's rule was adopted by reference by the OJCC in Chapter 60Q-6 Rules of Procedure for Workers' Compensation Adjudications, Rule 6.126. That rule affects the applicability of the RJA process of disqualification in the same manner that the legislative adoption of section 440.442 affects applicability of the Code. Two actions that incorporate Court procedure into this administrative agency process.
Once this is outlined, the applicability of these two should be clear and understandable. What remains is a tradition of conflating two concepts related to the removal of a trial judge. One process is called "recusal" and refers to a judge electing upon her or his own judgment to remove oneself from a case. The second process is the "disqualification" which references such a removal at the request of some party. Some of the confusion between the two is the unfortunate and overbroad use of the word "disqualification" in the RJA.
An unfortunate drafting in RJA 2.330(f) contributes to the confusion. It states:
"Nothing in this rule limits the judge's authority to enter an order of disqualification on the judge's own initiative."
Thus, the use of "disqualification" can be conflated with the more appropriate "recusal." It would therefore be improper to file a "Motion for Recusal," which is a voluntary act. It would be equally improper for a judge to "on my own motion disqualify myself," although that example is certainly enabled and perhaps perpetuated by the choice of that term in the RJA.
The use of words can be meaningful. The unfortunate habit of referring to administrative judges as "court" causes confusion for laypersons and lawyers. The mistaken assumptions and misconceptions that come from confusing this Office with a Court are one example. The lack of distinction in the RJA between "disqualification" and "recusal" is another. Words have meaning, and the use of the most appropriate term encourages and facilitates understanding and comprehension.
Any party seeking relief in Florida workers' compensation proceedings proceeds by filing a motion, see Rule 60Q6.115(1). The disqualification of the trial JCC is no different because Rule 2.330 of the RJA similarly requires that "any party . . . may move to disqualify the trial judge assigned." Thus, the appropriate vehicle is a motion. The grounds for such disqualification may be any "grounds provided by rule, by statute, or by the Code of Judicial Conduct."
The process is defined. There are required (shall) elements of any such motion. It must:
"(1) be in writing;(2) allege specifically the facts and reasons upon which the movant relies as the grounds for disqualification;(3) be sworn to by the party by signing the motion under oath or by a separate affidavit; and(4) include the dates of all previously granted motions to disqualify filed under this rule in the case and the dates of the orders granting those motions."
Four elementary components for the motion are thus mandatory. In addition, if the party seeking disqualification is represented, then "the attorney for the party shall also separately certify that the motion and the client’s statements are made in good faith." The motion is to be both "filed" and "immediately serve(d)" upon "the subject judge." The party seeking a disqualification must ("shall") show specific grounds set forth in Rule 2.330(d). The failure to comply with any of these would render the motion "legally insufficient," and subject to denial.
The motion has to be ("shall") "filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion." There is an exception if the hearing or trial has begun, and when the motion is "made during a hearing or trial," then the grounds for the motion "must be based on facts discovered during the hearing or trial and may be stated on the record, provided that it is also promptly (thereafter) reduced to writing." In any case, the requirement of writing is clear.
The judge's decision on such a motion is to be "immediate." In fact, "if not ruled on within 30 days of service, the motion shall be deemed granted." Rule 2.330(j). The Judge must decide this issue before proceeding with further decisions in the case.
What the trial judge is to consider is often a subject for confusion and conflation. Many speak to the Rule's parameters in absolute terms, which is incorrect. Before considering the motion, it is incumbent upon the trial judge to determine whether the party seeking disqualification has previously sought disqualification of another judge.
If not, then the motion is an "initial motion." The judge presented with an "initial motion"
"shall determine only the legal sufficiency of the motion" and"shall not pass on the truth of the facts alleged."
If the motion is both timely and "legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action." If the motion is denied, then the order shall likewise be "immediate" and shall merely state that the motion is "legally insufficient," "untimely," or both. It will provide no further explanation. Rule 2.330(f).
However, if a previous judge has been "disqualified on motion for alleged prejudice or partiality under subdivision (d)(1)," then the
"successor judge shall not be disqualified based on a successive motion by the same party unless the successor judge rules that he or she is in fact not fair or impartial in the case."
In the instance of such a subsequent motion, the "successor judge may rule on the truth of the facts alleged in support of the motion." The "initial" motion is thus taken as true on its face, and the determinations are only of legal sufficiency and timeliness. Any subsequent disqualification motion may be examined more analytically as to its foundation and substance. Thus, the distinction is critical. Whether the judge is considering an "initial" motion or a "subsequent" motion may require a different analysis, and may affect the extent and nature of the order entered.
What is also clear, but too frequently misapprehended, is that once disqualified a judge may not thereafter have any involvement in that case. Thus, an order of disqualification is not amenable to a motion for rehearing or reconsideration (as that judge lacks jurisdiction immediately upon entry of such an order). Later changes to the litigation (a party retaining new counsel, a new party being substituted, etc.) which may remove the conflict or perception thereof will not result in that case being reverted to that judge who has been disqualified. The disqualification may be ameliorated, but that will not shift the case, absent some motion granted regarding the successor judge's disqualification.
In short, the Code applies to JCCs because the Legislature made it so; the RJA applies to JCCs because the DOAH made it so. A voluntary removal is by "recusal" and a party seeking removal moves for "disqualification." The judge's default obligation is to preside unless removal is necessary, and the analysis of removal is dependent upon whether the request is or is not an "initial" request. Despite the persistent struggles some exhibit with the topic, it is reasonably straightforward.
