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Ex parte communications with judge for purely administrative, non-substantive matters do not warrant judge's disqualification. [Added 8/23/10] Law Firm petitioned the Fourth DCA for writ of prohibition to remove Judge from cases in which it represented mortgage foreclosure defendants. Law firm had filed previous petitions with the appellate court, all of which were denied. The court denied the latest one and wrote to explain the situation and its decision. The court began by stating that Law Firm, "under the guise of disqualifying the judge, to exclude itself from proceeding before Judge Sasser, who presides over the foreclosure division of the Palm Beach circuit court." The petition raised "repetitive claims" that had previously been "rejected on the merits." In addition to those claims, Law Firm "raised new arguments alleging that ex parte communication between opposing counsel and the judge requires disqualification." First, Judge had spoken to Law Firm's opposing counsel ex parte about scheduling a hearing. Opposing counsel immediately notified Law firm. Second, an administrative employee for opposing counsel contacted Judge's judicial assistant to inform her that Law Firm's was objecting to having certain motions heard at the uniform motion calendar. "Another judge, sitting in Judge Sasser’s absence, signed orders scheduling the hearing on the uniform motion calendar. The above incident led [Law Firm] to request all emails between the law firm’s staff and the JA. [Law firm] contends the emails show that the law firm’s administrative staff has been engaged in ex parte communications with the judicial assistant." The Fourth DCA rejected the new claims as well. "Ex parte communications regarding purely administrative, non-substantive matters, such as scheduling, do not require disqualification." The communications about which Law Firm complained all involved purely admistrative, non-substantive matters. "As to the communications between the administrative personnel of the [opposing] law firm and the JA, neither the ex parte communications, nor the alleged animosity that has developed between the JA and one of [Law firm]’s employees, provides an objectively reasonable basis for [Law Firm]’s clients to fear that the judge will not be fair and impartial." The court pointed out that Judge's communications did not violate Canon 3B(7) of the Florida Code of Judicial Conduct. Finally, the court concluded: "[Law Firm]’s repetitive attempts at disqualification in these cases appear designed, not to ensure that the proceedings against their clients are presided over by a neutral and fair tribunal, but to achieve a strategic advantage and/or frustrate the efficient function of the foreclosure division. As we suggested in Nassetta v. Kaplan, 557 So. 2d 919, 921 (Fla. 4th DCA 1990), this tactic is an improper use of the disqualification procedure." Nudel v. Flagstar Bank, FSB, __ So.3d ___ (Fla. 4th DCA, No. 4D10-641, 8/11/2010). |
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