The Florida Supreme Court adopted significant changes to the Florida Rules of Judicial Administration by order entered January 21, 2021. The changes are effective March 1, 2021. One important change is the title of these rules, They will henceforth be referred to as the “Florida Rules of General Practice and Judicial Administration,” or the “Fla. R. Gen. Prac. & Jud. Admin.” The Court explained that "this change is intended to clarify to Bar members that this chapter of rules is relevant not only to judges." Experience supports that a great many Florida attorneys practice blissfully unaware of these particular rules and the overarching impact they have on issues including calculation of time, schedule conflicts, and more.
The Florida Rules of General Practice and Judicial Administration do not apply to the Florida Office of Judges of Compensation Claims in any general sense. As important as their provisions are to the day-to-day practice of Florida litigators, their impact in workers' compensation is limited. The Fla. R. Gen. Prac. & Jud. Admin. are applicable by their very specific terms "to administrative matters in all courts to which the rules are applicable by their terms." Rule 2.110, Fla. R. Gen. Prac. & Jud. Admin. That reference is not to "administrative law" matters, but rather the broader issue of administration of the courts as in managerial or organizational regulation.
The processes and procedures before the Judges of Compensation Claims are instead governed by statute (notably, among others, by Chapters 440, 112, and 90) and the Rules of Procedure for Workers' Compensation Adjudications, Chapter 60Q-6, Florida Administrative Code. The OJCC is an executive branch office with quasi-judicial authority and responsibility, but it is not a "court." It has never been a court, and the Florida Supreme Court has never had appropriate authority to make rules for this agency, see Amendments to the Fla. Rules of Workers' Comp. Procedure, 891 So. 2d 474, 475 (Fla. 2004).
That the Court cannot impose rules on the OJCC is not conclusory, however. There is no prohibition on the OJCC incorporating Court rules in the Rules of Procedure for Workers' Compensation Adjudications. Those incorporate various Rules of Civil Procedure as regards discovery. And, the Fla. R. Gen. Prac. & Jud. Admin. Rule 2.330 provisions regarding disqualification of trial judges are similarly incorporated in Rule 60Q6.126 ("Any motion for disqualification of a judge shall be made and determined pursuant to Fla. R. Jud. Admin. 2.330.").
Therefore, for the workers' compensation community, the recent Supreme Court decision will be of interest. Beyond changing the name of these Court rules, the decision makes "numerous changes . . . to rule 2.330 (Disqualification of Trial Judges)." The Court explains these changes in detail, as follows.
The changes to "subdivision (a), Application," are not of significant import to judges of compensation claims. However, in the event that disqualification is sought as regards an appellate judge reviewing a workers' compensation case, this clarification is notable. The provisions do not apply to appellate judges. Notably, the title of this section remains unchanged: "Disqualification of Trial Judges." By implication, it would certainly have been logical to discern the section previously had a consistent specific application, but the amendment removes any lingering doubt.
The changes to subdivision (c) are certainly significant. The contents of the motion required specificity and detail to "allege specifically the facts and reasons." That requirement remains. However, the Court has added a requirement that may aid the determination of whether such a motion is timely. The new rule requires the filer to “identify the precise date when the facts constituting the grounds for the motion were discovered.” Thus, when were the circumstances underlying the disqualification known to the filing party? This specificity requirement may bring additional clarity to such a motion.
Furthermore, the amendments to subdivision (c) provide clarity to the process. Added to the requirement that the motion be "sworn" is a new alternative that it may instead be "affirmed."
The Court characterizes other changes as "organizational." In one, it takes two subjects previously addressed and separates them into two newly labeled paragraphs (c)(5) and (d). Paragraph (c)(5) is the requirement that in addition to the party's oath or affirmation in the motion, the attorney must separately provide "certification . . . that the motion and the client’s statements are made in good faith." Paragraph (d) is the requirement that the filing party shall serve the motion upon the judge. This is more pertinent to civil proceedings where there is a greater separation between a Clerk of Courts (where filing is done) and the judge. In workers' compensation, with the electronic filing capabilities and requirements, communication of the motion to the assigned judge is rapid and consistent with the communication of all filings.
The Court describes changes effected by the addition of the new paragraph (e) as delineating "the nonexclusive grounds upon which a motion to disqualify may be raised." There may be multiple reasons raised in such a motion, and this "require(s) the inclusion in the motion of 'all specific and material facts upon which the judge's impartiality might reasonably be questioned.'” This, like the date of knowledge discussion above, is an enhancement to the requirement of specificity.
A "new subdivision (f)" is directed at "creation of grounds." This new section precludes the filing of a disqualification motion when the only foundation therefore is the appearance of new counsel on a case. Thus, if a case is proceeding before a particular judge ("A") and new co-counsel (perhaps the judge's spouse or child) is associated in the case, it would be inappropriate to then file for the judge's disqualification based upon that new conflict.
The Rule clarifies that such a conflict might still be an appropriate grounds if there were a later change in presiding judge. That is, if the case is proceeding before Judge "B," and the child or spouse of Judge "A" is then associated as co-counsel. If later, the case is reassigned (perhaps Judge "B" retires, is reassigned to some other duty, etc.) to Judge "A," then that relationship between a co-counsel and Judge "A" would remain a valid grounds for such a motion.
A significant change in the rule is effected by the amendment to "Time," which "is now designated subdivision (g)." The party is now entitled to "twenty days," perhaps more permissive; however, it is possible that the rule may now be seen as more restrictive. The rule previously stated only that the motion must be within "10 days after discovery of the facts constituting the grounds." The amendment provides clarity as to "whose" discovery or knowledge, specifying "discovery of the relevant facts by either the party or the party's counsel, whichever is earlier." Thus, the knowledge of each is effectively imputed to the other.
The "Determination — Initial Motion" is relabeled paragraph (h). This section previously explained that in adjudicating the motion the judge would "determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged " The substantive change in this section is the addition of a corollary statement regarding the granting of such a motion. It is consistent with the admonition that the judge does not address the "truth of the facts alleged," and states "a determination that a motion to disqualify is legally sufficient 'does not constitute an acknowledgment that the allegations are true.'” This is clarifying, and consistent with the rule generally.
The final change of particular interest regards the reconsideration of prior trial court rulings. This blog has previously addressed the situation When there is a different Judge (2018). The effect of rulings made by a judge who is later disqualified is discussed in If it is Moot, What Does it Matter? (2018).
Essentially, the Rule provided in subdivision (h) that prior rulings by a judge later disqualified could be reconsidered following reassignment. The amendments to the rule do not change that, although this subdivision is now "redesignated (j)." Further, the time allowed to make such a motion regarding prior determinations is expanded to "thirty, rather than twenty, days of the order of disqualification."
There is import and pertinence to the changes in Rule 2.330. Arguably, the rule itself is of perhaps little significance to most attorneys. In the course of practice over a decade, I do not recall ever filing a motion to disqualify a judge. I can recall various instances that would have been meritorious grounds for such a motion but do not recall ever doing so. In conversations over the last twenty years with many attorneys, I have been told a great many of them have likewise never filed such a motion.
Therefore, in an immediate sense, these changes are perhaps of only passing interest. However, the diligent attorney will make a mental note that the process and requirements are different. Should the need arise for such a motion, the diligent attorney will always be best served by a habit of consulting the applicable rule(s). That they read this post will perhaps encourage such a consultation at that time, as she/he recalls that there have been changes worthy of consideration in this regard.
Numerous changes are adopted to rule 2.330 (Disqualification of Trial Judges).
First,
subdivision (a), Application, is amended to clarify to which judges
this rule applies by adding the text “when acting alone as the sole
judicial officer in a trial or appellate proceeding.” In addition, a new
sentence is added to clarify to whom the rule does not apply.
With
respect to subdivision (c), Motion, the more substantial change is the
addition to the second numbered paragraph that the motion “identify the
precise date when the facts constituting the grounds for the motion were
discovered.” The remainder of the amendments are organizational.
Subdivision (d), Grounds, is redesignated (e), and (d) is retitled “Service.”
New
subdivision (e), Grounds, is amended to clarify the nonexclusive
grounds upon which a motion to disqualify may be raised, and to require
the inclusion in the motion of “all specific and material facts upon
which the judge's impartiality might reasonably be questioned.”
Next,
new subdivision (f), Prohibition Against Creation of Grounds for
Disqualification Based Upon Appearance of Substitute or Additional
Counsel, is amended in order to eliminate the ability of manipulation by
practitioners who create grounds for disqualification through the
appearance of substitute or additional counsel. Thus, the provision as
amended provides that with the addition of new substitute counsel or
additional counsel that that party is prohibited from filing a motion
for disqualification based on the new attorney's involvement in the
case.
Former
subdivision (e), Time, is now designated subdivision (g). The time
period within which to file a motion to disqualify after discovery of
the facts giving rise to the motion is amended from ten to twenty days.
Further, the rule is amended to provide for measuring that time from
discovery of the relevant facts by either the party or the party's
counsel, whichever is earlier.
Former
subdivision (f), Determination — Initial Motion, is redesignated (h).
An internal cross-reference is corrected and new language clarifies that
a determination that a motion to disqualify is legally sufficient “does
not constitute acknowledgment that the allegations are true.”
The remaining subdivisions are redesignated (i)-(l)
and the amendments thereto are largely technical. In addition, former
subdivision (h), Prior Rulings, now subdivision (j), is amended to
require that a motion to reconsider prior rulings by a successor judge
must be filed within thirty, rather than twenty, days of the order of
disqualification. And former subdivision (i), Judge's Initiative, is now
(k), and is retitled “Recusal Upon Judge's Initiative.”
In re Amendments to Fla. Rules of Judicial Admin.-2020 Regular-Cycle Report, No. SC20-165, 2021 WL 208450, at *2 (Fla. Jan. 21, 2021)
Numerous changes are adopted to rule 2.330 (Disqualification of Trial Judges).
First,
subdivision (a), Application, is amended to clarify to which judges
this rule applies by adding the text “when acting alone as the sole
judicial officer in a trial or appellate proceeding.” In addition, a new
sentence is added to clarify to whom the rule does not apply.
With
respect to subdivision (c), Motion, the more substantial change is the
addition to the second numbered paragraph that the motion “identify the
precise date when the facts constituting the grounds for the motion were
discovered.” The remainder of the amendments are organizational.
Subdivision (d), Grounds, is redesignated (e), and (d) is retitled “Service.”
New
subdivision (e), Grounds, is amended to clarify the nonexclusive
grounds upon which a motion to disqualify may be raised, and to require
the inclusion in the motion of “all specific and material facts upon
which the judge's impartiality might reasonably be questioned.”
Next,
new subdivision (f), Prohibition Against Creation of Grounds for
Disqualification Based Upon Appearance of Substitute or Additional
Counsel, is amended in order to eliminate the ability of manipulation by
practitioners who create grounds for disqualification through the
appearance of substitute or additional counsel. Thus, the provision as
amended provides that with the addition of new substitute counsel or
additional counsel that that party is prohibited from filing a motion
for disqualification based on the new attorney's involvement in the
case.
Former
subdivision (e), Time, is now designated subdivision (g). The time
period within which to file a motion to disqualify after discovery of
the facts giving rise to the motion is amended from ten to twenty days.
Further, the rule is amended to provide for measuring that time from
discovery of the relevant facts by either the party or the party's
counsel, whichever is earlier.
Former
subdivision (f), Determination — Initial Motion, is redesignated (h).
An internal cross-reference is corrected and new language clarifies that
a determination that a motion to disqualify is legally sufficient “does
not constitute acknowledgment that the allegations are true.”
The remaining subdivisions are redesignated (i)-(l)
and the amendments thereto are largely technical. In addition, former
subdivision (h), Prior Rulings, now subdivision (j), is amended to
require that a motion to reconsider prior rulings by a successor judge
must be filed within thirty, rather than twenty, days of the order of
disqualification. And former subdivision (i), Judge's Initiative, is now
(k), and is retitled “Recusal Upon Judge's Initiative.”
In re Amendments to Fla. Rules of Judicial Admin.-2020 Regular-Cycle Report, No. SC20-165, 2021 WL 208450, at *2 (Fla. Jan. 21, 2021)