Barber v. MacKenzie

562 So. 2d 755, 1990 WL 62853
CourtDistrict Court of Appeal of Florida
DecidedMay 15, 1990
Docket89-2771
StatusPublished
Cited by26 cases

This text of 562 So. 2d 755 (Barber v. MacKenzie) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barber v. MacKenzie, 562 So. 2d 755, 1990 WL 62853 (Fla. Ct. App. 1990).

Opinion

562 So.2d 755 (1990)

Charles L. BARBER, Petitioner,
v.
Honorable Mary Ann MacKENZIE, Judge of the Eleventh Judicial Circuit Court in and for Dade County, Florida, Respondent, Doris Barber, Intervenor.

No. 89-2771.

District Court of Appeal of Florida, Third District.

May 15, 1990.
Rehearing Denied July 10, 1990.

William F. Murphy, Tampa, for petitioner.

Robert A. Ginsburg, County Atty., and Roy Wood, Asst. County Atty., for respondent.

Karlan & Gerson and Charlotte E. Karlan, Miami, for intervenor.

Before FERGUSON, COPE and GERSTEN, JJ.

COPE, Judge.

Charles L. Barber has petitioned for a writ of prohibition, asserting that the trial *756 judge erred by denying a motion for disqualification. We grant partial relief by certiorari.

The threshold issue is whether this matter is moot. Subsequent to the filing of the petition for prohibition and response thereto, this court was informed that the trial judge has transferred to another division of the circuit court, and no longer has responsibility for the matrimonial action pending below. The respondent trial judge and the respondent wife in the matrimonial action contend that the petition is now moot, and their point is well taken insofar as the petition sought to substitute a new trial judge in place of the respondent judge.

The husband contends, however, that the petition is not moot with respect to orders already entered by the trial court. He argues that under section 38.10, Florida Statutes (1989) and Rule 1.432, Florida Rules of Civil Procedure, entry of an order of disqualification by the trial court permits him to move for reconsideration of the orders previously entered by the disqualified judge. Since the trial judge took evidence and, sitting as trier of fact, entered an interim support award and an interlocutory order determining certain property rights, the husband contends that failure to reach the merits of the petition will foreclose an opportunity to move for reconsideration to which he is otherwise entitled.

The theory of petitioner's motions for disqualification was that the trial judge should be disqualified on account of prejudice, the grounds for which are set forth in section 38.10, Florida Statutes. Neither section 38.10 nor Rule 1.432, Florida Rules of Civil Procedure, explicitly provides for moving for reconsideration of interlocutory orders upon entry of an order of disqualification. Florida practice treatises have stated that there is a right to move for reconsideration, citing as authority section 38.07, Florida Statutes (1989).[1] While section 38.07 does provide for such a motion to be made, it is by its terms confined to disqualification for consanguinity under sections 38.02 and 38.05, Florida Statutes.

The Florida Supreme Court has said that, "Under the common law, the acts of a disqualified judge were subject to vacation or reversal, were generally held to be voidable rather than void, and were not subject to collateral attack. It was also required that they be moved against promptly, otherwise the right would be lost." Dickinson v. Raichl, 120 Fla. 907, 912, 163 So. 217, 219 (1935).[2] Common law principles remain in force in Florida except to the extent modified or repealed by statute. See § 2.01, Fla. Stat. (1989); Choctawhatchee Elec. Co-op., Inc. v. Major Realty Co., 161 So.2d 837, 839 (Fla. 1st DCA 1964). Section 38.10 provides that when the trial judge is disqualified, "the judge shall proceed no further, but another judge shall be designated in the manner prescribed by the laws of this state for the substitution of judges for the trial of causes in which the presiding judge is disqualified." Section 38.10 thus specifies that the ordinary procedure for substitution of judges in cases of disqualification will be followed, and does not address, much less negate, the common law right to move for reconsideration.

This interpretation is reinforced by examination of the other disqualification statutes. Section 38.01, Florida Statutes (1989), provides for disqualification where a judge is a party to the pending action. There, the statute has modified the common law rule by providing that all of the judge's acts are void, not merely voidable. Since the successor judge must consider the entire action de novo, a motion for reconsideration would be irrelevant. Section 38.07, Florida Statutes, enacted after section 38.10, see Brown v. St. George Island, Ltd., 561 So.2d 253, 256 n. 4, (1990) in essence codifies the common law rule and *757 provides specific time frames rather than applying the rule of laches. Finally, as the decision in Dickinson v. Raichl indicates, in the rare case of a common law, rather than statutory, disqualification reconsideration is also available. See also Aetna Life & Casualty Co. v. Thorn, 319 So.2d 82, 84 (Fla. 3d DCA 1975) (successor judge had authority to grant relief from judgment). In sum, section 38.10 contains no indication that there was an intention to modify common law practice, and Florida law provides in all other contexts either that reconsideration is available by motion, § 38.07, Fla. Stat.; Dickinson v. Raichl, or that the acts of the disqualified judge are void. § 38.01, Fla. Stat.

We conclude, therefore, that the premise of petitioner's argument is correct: had the motion for disqualification been granted, he could have moved for reconsideration of the trial court's orders. The matter is not entirely moot. Under English v. McCrary, 348 So.2d 293, 296-97 (Fla. 1977), however, it appears that prohibition is not an available remedy, and the petition will instead be treated as one for writ of certiorari.

We next turn to the merits of the petition. Insofar as is pertinent here, the husband moved to disqualify the judge on the ground that the two opposing counsel, who represent the wife in the matrimonial action, are members of the Committee to Re-elect Judge Mary Ann MacKenzie. The re-election campaign is under way and the trial judge has drawn announced opposition. The Committee is actively conducting direct mail solicitation, requesting contributions and endorsements. The Committee's solicitation letter sets forth the reasons for the Committee's support, and concludes, "That is why we are helping Judge MacKenzie in her re-election campaign, and ask that you join us in these efforts." Beneath the text of the letter are the names of all members of the campaign committee, including the two attorneys representing the wife in the matrimonial action now pending before the trial judge.

The standards applicable here have been often stated:

Legal sufficiency is governed by a reasonable person standard. The affidavit must recite "facts and circumstances that would lead any normal human being in the position of [the movant] to `fear' that he would not receive a fair trial... ." Dickenson v. Parks, 104 Fla. [577] at 582, 140 So. [459] at 462 [(1932)]; accord Fischer v. Knuck, 497 So.2d 240 at 242 [(Fla. 1986)]; Livingston v. State, 441 So.2d 1083 at 1087 [(Fla. 1983)]. "`If the attested facts supporting the suggestion are reasonably sufficient to create such a fear, it is not for the trial judge to say that it is not there.'" Livingston v. State, 441 So.2d at 1087 (quoting State ex rel. Davis v. Parks, 141 Fla. 516, 518, 194 So. 613, 614 (1939)). So long as the allegations "`are not frivolous or fanciful, they are sufficient to support a motion to disqualify... .'" Hayslip v. Douglas, 400 So.2d 553, 556 (Fla. 4th DCA 1981) (quoting State ex rel. Brown v.

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562 So. 2d 755, 1990 WL 62853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barber-v-mackenzie-fladistctapp-1990.