There are undoubtedly those who understand the process of changing the judge on a case. Unfortunately, the evidence supports that those attorneys are both few and far between. Through a parade of pleadings over the years, I have witnessed a variety of shortcomings that are worthy of discussion.
First, as is usually the case, there is guidance for what is called "disqualification." In Florida, that comes in the Florida Rules of General Practice and Judicial Administration (Fla. R. Gen. Prac. & Jud. Admin.) Those rules, by their very terms, do not apply generally in Florida workers' compensation.
First, those are rules of the Court, for the courts. The Florida OJCC is not a court and never was. See Amends. to the Fla. Rules of Workers' Comp. Proc., 891 So. 2d 474, 477 (Fla. 2004)("The Office of the Judges of Compensation Claims (OJCC) is not a court of this State.")
Nonetheless, the OJCC has its own rules. Chapter 60Q-6 Rules of Procedure for Workers' Compensation Adjudications (Fla.R.Pro.Work.Comp.) Those rules do apply to practice here. Those rules address "disqualification." They do so in Rule 60Q6.126:
(1) Any motion for disqualification of a judge shall be made and determined pursuant to Fla. R. Gen. Prac. & Jud. Admin. 2.330.
The Fla.R.Pro.Work.Comp. "incorporate" the Fla. R. Gen. Prac. & Jud. Admin., specifically rule 2.330. That has the effect of making that one rule applicable in workers' compensation proceedings.
The lesson is too easily lost on lawyers, who have studied the concepts of statutes, rules, and court decisions. Lawyers struggle to read and comprehend this particular rule and apply it with persistent success. Unfortunately, there are judges who struggle with the interactions of this rule and the Code of Judicial Conduct.
The first distinction that is worthy of note is that the word is "disqualification." That is in Rule 60Q6.126 and Rule 2.330. This is not "recusal," but disqualification. Using "recuse" in the context of a motion is as sensical as referring to "Taylor Swift": "comes now the ______ and moves to Taylor Swift the judge." Patently inappropriate and nonsensical, but no more so than "comes now the ______ and moves to recuse the judge."
For this, the party seeking to change the judge needs only read Rule 2.330(b):
Any party, including the state, may move to disqualify the judge assigned to the case on grounds provided by rule, statute, Code of Judicial Conduct, or general law, and in accordance with the procedural provisions of this rule
This is permissive ("may") and allows the party to seek to "disqualify" the judge. The attentive reader may note the absence of "recuse" in that portion of the rule. They might focus attention in that regard on Rule 2.330(k):
(k) Recusal Upon Judge’s Initiative. Nothing in this rule limits the judge’s authority to enter an order of recusal.
Note the absence there of any "may move." The "recusal" is not upon a motion. It is "upon (the) judge's initiative." This is not a judge reacting (to a motion), but a judge taking a volitional action.
Requirements of the motion in Rule 2.330(c)(“shall”) and Rule 2.330(e)(“shall”) are mandatory. When a rule or statute uses the term "shall," that is suggestive that it must be complied with.
There is a litany of appellate law that decries this simple conclusion but that defies any semblance of consistency or logic. Many uses of "shall" have been judicially converted to "may" and some "may" have been interpreted as "shall." The foundations for those interpretations are often questionable or outright troubling. But I digress.
Rule 2.330(c)(“shall”) says that there "shall" be a motion, and what it "shall" contain. Thus, when disqualification is sought, some party must make a motion. That is a critical term in workers' compensation. Rule 60Q6.115 applies to all motions in workers' compensation.
That rule has requirements for motions. Most critically, it requires consultation with all opposing parties. This is the "good faith" requirement. It applies to "any motion," "except for motions to dismiss for lack of prosecution." Motions filed without that consultation and representation of that "good faith" "shall be summarily denied." Despite that, most motions for disqualification do not include the "good faith" representation or recitations.
Rule 2.330(e)(“shall”) describes the grounds for disqualification. This provision is simply worded and foundational. The party seeking relief—disqualification—should consider listing one of those grounds as their reason for the relief. The rule says these are the reasons for a judge to be disqualified. That said, they are not the only reasons. Nonetheless, the competent motion will state the reason(s).
In the law of torts, there is an oft-ignored concept called "coming to the nuisance." You cannot move into a neighborhood underneath the flight path for the airport and then sue to stop the takeoffs and landings. You knew that noise was there when you came to the noise.
Similarly, Rule 2.330(f) says that the party or lawyer cannot "create" a ground for disqualification by substitution or addition of counsel. If some basis exists for disqualification because of relationship or circumstance between some judge and counsel, the judge should not be removed because that lawyer voluntarily comes to a case where the presence of that judge is already known.
Rule 2.330(f) is titled simply "prohibition against creation." The "coming to the case" is not a valid basis of disqualification. That causes some confusion. The prohibition is clearly about the "party represented by such newly appearing counsel." That party may not seek disqualification. That does not mean another party may not. BUT, the other party would have to file a motion ("shall"), see above.
Rule 2.330(g) provides timing. As if these motions were not already complicated enough ("shall," "motion," "grounds"), the party seeking disqualification must do so in "a reasonable time." That may not "exceed 20 days after discovery" of the "grounds." That is discovery by the party or the attorney. The timeliness of such motions is a frequent failure. It does not matter, independently, when the party learns, or when the counsel learns, the earliest to learn is when the clock starts.
Rule 2.330(j) addresses the procedural effect of a change. Following a disqualification, the case will be assigned to a different judge. That judge may "reconsider and vacate or amend" any "prior factual or legal rulings by (the) disqualified judge." That is specific. By the "recused judge?" No, the rule does not say that. The rule is specific to the "disqualified judge."
That said, any party may always seek "relief." Rule 60Q6.115. The party will not know if the different judge may consider past rulings unless they ask. Though the rule says the parties "may" in one instance ("disqualification") it has no prohibition on the other ("recusal"). However, the motion for that relief must be filed within 30 days.
Thus, the process is specific. The requirements are perhaps exacting. The path and map are nonetheless clear. The key is found in reading two rules: Rule 2.330 and Rule 60Q6.115. With that foundation, anyone could prepare a competent motion. Despite that, complete and competent motions are too rare.
