IN THE SUPREME COURT OF FLORIDA Case No. SCll-2023

ADMINISTRATIVE ORDER A-2011-037 OF THE THIRTEENTH JUDICIAL CIRCUIT.

RE: AUTOMATIC REASSIGNMENT OF CERTAIN CASES OF THE HONORABLE BERNARD C. SILVER

Robin R. Lane Petitioner,

v.

Honorable Manuel Menendez, Jr., Chief Judge, Thirteenth Judicial Circuit, Hillsborough County, Florida,

Respondent. / -------------------------

ON APPEAL FROM THE THIRTEENTH JUDICIAL CIRCUIT

IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

CORRECTED PETITION FOR REVIEW OF ADMINISTRATIVE ORDER

JORYN JENKINS, ESQUIRE Florida Bar Number 366072 JORYN JENKINS & ASSOCIATES 3839 West Kennedy Boulevard Tampa, Florida 33609 Phone: 813/870-3839 Facsimile: 813/877-3839 E-mail Joryn@JorynJenkinsLaw.com

Appellate Counsel for Robin R. Lane

TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................... ii

TABLE OF CITATIONS ......................................................................................... iii

PRELIMINARY STATEMENT ............................................................................... 1

JURISDICTION AND STANDING ......................................................................... 2

STATEMENT OF THE FACTS ............................................................................... 4

STANDARD OF REVIEW ....................................................................................... 7

SUMMARY OF ARGUMENT ................................................................................. 7

ARGUMENT .......................................................................................................... 18

AO A-20 11-037 VIOLATES CASE LAW .................................................. 18

AO A-2011-037 INAPPROPRIATELY QUALIFIES RULE 2.505(E) ...... 21

AO A-2011-037 INAPPROPRIATELY QUALIFIES RULE 2.330 ........... 25

AO A-2011-037 VIOLATES THE EQUAL PROTECTION CLAUSE ...... 32

CONCLUSION ....................................................................................................... 43

CERTIFICATE OF COMPLIANCE ...................................................................... 44

CERTIFICATE OF SERVICE ................................................................................ 44

11

TABLE OF CITATIONS

Cases

Cascone v. Foster, 774 So. 2d 773 (Fla. 1 st DCA 2000) ......................................... 11

Davis v. State, 849 So. 2d 1137 (Fla. 1 st DCA 2003) .............................................. 24

Forest v. State, 904 So. 2d 629 (Fla. 4th DCA 2005) .............................................. 11

Ginsberg v. Holt, 86 So. 2d 650 (Fla. 1956) ..................................................... 11, 33

Goolsby v. State, 914 So. 2d 494 (Fla. 5th DCA 2005) ......................... 12, 20, 21, 23

Haverty v. State, 830 So. 2d 264 (Fla. 5th DCA 2002) ............................................ 24

Holley v. Adams, 238 So. 2d 401 (Fla. 1970) ............................................................ 4

Inquiry Concerning a Judge, 36 So. 3d 580 (Fla. 2010) ................................... 29,30

Jenkins v. Motorola, Inc., 911 So. 2d 196 (Fla. 3d DCA 2005) ................. 20, 21, 24

Laird v. Tatum, 409 U.S. 824 (1972) ...................................................................... 17

Litekv v. u.s., 510 U.S. 540 (1994) ......................................................................... 17

Livingston v. State, 441 So.2d 1083 (Fla. 1983) .............................................. 16, 33

MacKenzie v. Super Kids Bargain Store, 565 So. 2d 1332 (Fla. 1990) ............ 15, 16

Madura v. Turosienski, 901 So. 2d 396 (Fla. 2d DCA 2005) ................................. 15

Melbourne v. Wright, 760 So. 2d 1100 (Fla. 5th DCA 2000) ............................ 17, 18

Miller v. State, 971 So. 2d 951 (Fla. 5th DCA 2007) ......................................... 37,38

Olive v. Maas, 811 So. 2d 644 (Fla. 2002) ................................................................ 4

Physicians Healthcare Plans, Inc. v. Pfeifler, 846 So. 2d 1129 (Fla. 2003) ............ 3

111

Ridgewood v. Dept. o/Community Affairs, 562 So. 2d 322 (Fla. 1990) ................. 29

Rivkind v. Patterson, 672 So. 2d 819 (Fla. 1996) ..................................................... 3

Rogers v. State, 630 So. 2d 513 (Fla. 1993) ............................................................ 16

Samples, et al., v. Florida Birth-relates Neurological, et aI., 40 So. 3d 18 (Fla. 5th

DCA 2010) ........................................................................................................... 37

Smith v. Santa Rosa Island Auth., 729 So. 2d 944 (Fla. 1st DCA 1998) ................. 16

Spencer v. State, 545 So. 2d 1352 (Fla. 1989) ........................................................ 37

State ex rei. Fuente v. Himes, 160 Fla. 757,36 So. 2d 433 (Fla. 1948) ................. 33

Stimpson Computing Scale Co. v. Knuck, 508 So. 2d 482 (Fla. 3d DCA 1987) .... 24

Sume v. State, 773 So. 2d 600 (Fla. 1 st DCA 2000) .................................... 11,33,40

Thomas v. State, 756 So. 2d 217 (Fla. 4th DCA 2000) ............................................ 24

Town Centre o/Islamorada, Inc. v. Overby, 592 So. 2d 774 (Fla. 3d DCA 1992)31,

33,34,40,42

Wildv. Dozier, 672 So. 2d 16 (Fla. 1996) ................................................................. 3

Statutes

Florida Constitution, Art. I, § 2 ............................................................................... 37

Title 28, United States Code, §455(a) ..................................................................... 14

U.S. Constitution, Amendment XIV, § 1 ................................................................ 37

Other Authorities

Canon 3F, Florida Code of Judicial Conduct. ......................................................... 26

IV

JEAC Opinion No. 2008-04 .................................................................................... 12

JEAC Opinion No. 2009-01 .................................................................................... 15

JEAC Opinion No. 99-2 .................................................................................... 10, 17

JEAC Opinion Number: 99-28 ................................................................................ 26

Rules

Florida Rule of Judicial Administration 2.120(b)(1) ................................................ 9

Florida Rule of Judicial Administration 2.120(b )(2) ................................................ 9

Florida Rule of Judicial Administration 2.120(c) ..................................................... 7

Florida Rule of Judicial Administration 2. 140(h ) ..................................................... 3

Florida Rule of Judicial Administration 2.215(b )(2) ................................................ 2

Florida Rule of Judicial Administration 2.215(e)(2) ................................................. 3

Florida Rule of Judicial Administration 2.215(e)(3) ................................................. 3

Florida Rule of Judicial Administration 2.330 ................................................. passim

Florida Rule of Judicial Administration 2.330(a) ................................................... 15

Florida Rule of Judicial Administration 2.330(b) ................................................... 15

Florida Rule of Judicial Administration 2.330( c) ................................................... 16

Florida Rule of Judicial Administration 2.330(d)(I) .................................. 16, 26, 29

Florida Rule of Judicial Administration 2.330(e) ......................................... 6,26,29

Florida Rule of Judicial Administration 2.330(f) .................................................... 15

Florida Rule of Judicial Administration 2.330(g) ................................................... 29

v

Florida Rule of Judicial Administration 2.505(e) ......................................... 9,22,26

Florida Rule of Judicial Administration 2.505( e)(1 ) ......................................... 22, 25

Florida Rule of Judicial Administration 2.505(e)(2) ................................... 22,23,25

Florida Rule of Judicial Administration 2.505(e)(3) ......................................... 22,25

Statutes

Florida Statute § 38.10 ............................................................................................ 18

VI

PRELIMINARY STATEMENT

Petitioner, Robin R. Lane ("Lane"), is the plaintiff in the legal malpractice

suit, Circuit Court Case No. 07-004079.

The matter underlying the legal malpractice involves the dissolution of her

marriage, as well as her separate financial claims against her erstwhile husband.

The defendants in the trial court are the law firm, Akerman Senterfitt & Edison

P.A., and shareholder, William Kalish (the "Akerman Defendants"), and the Law

Office of Charles W. Ehrlich and Charles W. Ehrlich (the "Ehrlich Defendants").

Respondent, The Honorable Manuel Menendez, Jr. ("Chief Judge

Menendez"), has served as chief judge of the Thirteenth Judicial Circuit of the

State of Florida since July 2001. He entered Administrative Order ("AO") A-

2011-037 on September 7, 2011 regarding the automatic assignment of certain

cases of The Honorable Bernard C. Silver ("Judge Silver"), which is cause for this

petition.

Judge Silver served as trial judge in the legal malpractice case below from

January 26, 2009 until October 11, 2011. The law firm of Trenam, Kemker,

Scharf, Barkin, Frye, O'Neill & Mullis P. A. ("Trenam") is Judge Silver's former

law firm, where he practiced law prior to becoming a judge in 2007.

An attorney of record who is referenced in an AO shall be referred to herein

as a "referenced" attorney. Joryn Jenkins ("Jenkins") is a referenced attorney in

AO A-20ll-03?, among others.

Cited authorities include the Supreme Court Local Rules Advisory

Committee ("LRAC") recommendations, the Supreme Court Judicial Ethics

Advisory Committee ("JEAC") opinions, and case law. The rules cited herein are

the Florida Rules of Judicial Administration, unless otherwise indicated.

References to the appendix are indicated by the abbreviation "App."

All emphasis is supplied, unless otherwise indicated.

JURISDICTION AND STANDING

Lane's notice of appeal, filed on October O?, 2011 and docketed on October

13,2011, has been treated by the Supreme Court as a petition for review of an AO.

By order of this Court, Lane was allowed to file a petition for review of the AO

pursuant to Florida Rule Judicial Administration 2.215.

Chief Judge Menendez promulgated AO A-20ll-03? under Florida Rule of

Judicial Administration 2.2l5(b )(2). It is an automatic reassignment AO of certain

cases of Judge Silver, applicable when a referenced attorney appears of record in a

case assigned to Judge Silver's division.

The chief judge enters AOs. See Rule 2.215 (b)(2). He must also review

standing AOs annually to ensure that they are current and do not conflict with

2

Supreme Court or local rules.) See Rule 2.2IS(e)(3).

However, any judge or member of the Florida Bar who believes that an AO

promulgated under Rule 2.21S(b )(2) "is a court rule or a local rule as defined in

rule 2.120, rather than an administrative order, may apply to the Supreme Court

Local Rules Advisory Committee for a decision on the question." See Rule

2.21S(e)(2). "The chief justice of the supreme court may appoint a Local Rule

Advisory Committee to consider and make recommendations to the court

concerning local rules and administrative orders submitted pursuant to rule

2.21S(e)." See Rule 2. 140(h).

This is a petition to review the AO, and to determine its legality. Therefore,

the Supreme Court has jurisdiction in this matter? Lane seeks review of an AO

entered by Chief Judge Menendez, nunc pro tunc reassigning her case back to

Judge Silver, despite Judge Silver's automatic recusal from any case in which

1 The clerk of the court must index and record the AO in each county in which the AO is effective.

2 The Florida Supreme Court has been clear in concluding that it "has exclusive jurisdiction to review judicial assignments." Rivldnd v. Patterson, 672 So. 2d 819 (Fla. 1996). The Court has unambiguously held that "a litigant who is affected by a judicial assignment made by a chief judge of a judicial circuit must challenge that assignment in the trial court and then seek review in [the supreme court] by way of petition for writ of prohibition or petition under the 'all writs' power." Wild v. Dozier, 672 So. 2d 16, 17-18 (Fla. 1996); see also Physicians Healthcare Plans, Inc. v. Pfeifler, 846 So. 2d 1129, 1133 (Fla. 2003) (quoting Wild and reiterating that exclusivity).

3

certain attorneys appear of record by virtue of prior standing AOs, and after such

an automatic recusal had already effectuated a transfer of her case to a different,

unbiased judge.

The test of standing is whether the party has sufficient interest in the

outcome of the case at bar. Olive v. Maas, 811 So. 2d 644 (Fla. 2002); Holley v.

Adams, 238 So. 2d 401 (Fla. 1970). Lane has standing because she, as the plaintiff

in the lower court tribunal, was injured by AO A-20II-037 when she retained

counsel. The AO was specifically directed at her and her new counsel, and has

thus injured Lane and violated Lane's rights to due process.

STATEMENT OF THE FACTS

The underlying matter is Lane's legal malpractice suit against Akerman, in

which present and former defendants and defense witnesses are also present and

former attorneys at Trenam, a firm at which Judge Silver practiced law before his

election to the bench.

Since his ascension to the bench, Judge Silver has been automatically

recused from any case in which an attorney associated with Trenam appears of

record, via Chief Judge Menendez's standing AO A-2007-002,3 as referenced in

AO A-20II-037. See App. A.

On or about August 22, 2011, Lane retained counsel who was also the

3 Counsel has been unable to procure a copy of AO A-2007-002, itself.

4

subject of one of the chief judge's automatic recusal orders (App. B), and, upon her

notice of appearance, the case was automatically transferred to another division.

Nevertheless, on August 30, 2011, Judge Silver conducted a hearing in the

matter below in which he informed counsel, "we are reviewing the situation

regarding the reassignment to Division F, and will get back to you in due course."

App. C, at p. 4, 11.17-19. He continued, "[t]he matter is under review in terms of

whether or not the case will be reassigned back to me. So depending upon my

review of the situation, we will let the parties know." See App. C, pp. 6-7, 11. 24-

25, 1-2.

On September 7, 2011, over two weeks after the case had been automatically

reassigned from Judge Silver, Chief Judge Menendez entered two new AOs

relative only to Judge Silver, and to no other circuit court judge. AO A-2011-037,

effective nunc pro tunc to August 24, 2011, ordered that the automatic

reassignment of cases from before Judge Silver only applies when a referenced

attorney files an initial pleading or responsive motion. Finding that AO A-2011-

037 supersedes AO A-2009-005, Chief Judge Menendez also entered AO A-2011-

038, specifically reassigning the case below back to Judge Silver. App. D.

Lane had been unaware of Judge Silver's automatic recusal of Trenam­

connected attorneys until she received the two new AOs. Judge Silver had

presided over the case for more than 30 months and had never brought it or his

5

presumed bias to the attention of the parties. Upon receiving her copies of the

AOs, however, Lane discovered that two of the referenced attorneys who had

represented her in the underlying divorce case had later moved to Trenam.

Furthermore, two additional attorneys, individually named defendants, who are

currently Akerman shareholders, were formerly at Trenam. And, as if this was not

sufficient, three other defense witnesses are also former Trenam shareholders.

On September 13, 2011, therefore, within 10 days of discovering Judge

Silver's prima facie bias documented by Chief Judge Menendez's AOs, Lane filed

her application for and affidavit in support of the disqualification of Judge Silver,

pursuant to Florida Rule of Judicial Administration 2.330(e). App. E.

AO A-2011-037 and AO A-2011-038, both entered on September 7, 2011,

contained the facts that constituted the grounds for Lane's request that Judge Silver

disqualify himself. See App. D. The basis of Lane's well-founded fear that she

would not receive a fair trial before Judge Silver derives from the undisputed fact

that Judge Silver had already been disqualified from presiding over any cases in

which eight of the individuals involved in the defense of her complaint were to

appear as attorneys of record. A complete recounting of the facts is contained in

Lane's affidavit and is incorporated herein by reference hereto.4 App. E.

4 On September 16, 2011, Lane filed a notice of filing supplemental records in support of the disqualification of Judge Silver. App. F. The Akerman Defendants opposed Lane's motion on September 21, 2011. App. G. In their

6

On September 26, 2011, nearly two weeks after she filed it, Judge Silver

entered an order denying Lane's motion for judicial disqualification. Thereafter,

Lane sought review of the order in the Second District Court of Appeal.

On October 11, 2011, the appellate court granted her petition for a writ and

prohibited Judge Silver from presiding further in the Lane case. Thereafter, in

accordance with the appellate court order, the clerk of the circuit court randomly

reassigned the Lane case to General Civil Division "I."

AO A-2011-038 and AO A-2011-0S2 provide a succinct summary of the

chain of motions and judicial reassignment associated with the judicial recusal AO

A-2011-037 and its predecessor AO A-2009-00S.

STANDARD OF REVIEW

The standard of review of an administrative order is de novo. This is a

petition to review the legality of an AO. An AO is a directive by the chief judge

necessary for the proper administration of circuit court's affairs. The AO must not

be "inconsistent with the constitution or with court rules and administrative orders

entered by the Supreme Court." See Rule 2.120( c ).

SUMMARY OF ARGUMENT

The first issue is whether the entry of the AO was a lawful exercise of Chief

response, they confirmed, "[e]ight of the individuals referenced [in Lane's affidavit as Trenam-associated attorneys] are either a named defendant or witnesses in this case."

7

Judge Menendez's power to make judicial assignments in contravention of equal

protection rights guaranteed under article I, section 2 of the Florida Constitution,

and the sixth and fourteenth amendments of the United States Constitution. Was it

lawful for the chief judge to enter an order, in derogation of his prior AOs,

targeting a specific judge, a specific attorney, and a specific case, and thereby

assign that judge to hear a matter because that judge requests it? The language of

the AO made available automatic reassignment of pending cases when a referenced

attorney noticed her appearance to similarly-situated litigants in one division of the

court but not in the others, thereby violating equal protection rights.

The second issue is whether A 0 A -2011-037 has effectuated a novel judicial

recusal procedure which oversteps appellate case law and Supreme Court rulings.

The AO provided the rationale for a successor AO, A-2011-038, entered

concurrently with A-2011-037, which reversed a prior disqualification of Judge

Silver, prohibited by the appellate court decisions, even if the prior disqualification

was III error.

The AO has also instituted a mechanism by which the judge investigates

whether the appearance of a referenced attorney in a case necessitates the judge's

voluntary recusal, and then requires the same judge to adjudicate his own

disqualification pursuant to Rule 2.330. By conferring investigative and

adjudicative powers on the same individuals, the AO breaches the guarantee of due

8

process.

The third Issue is whether the AO is, in fact, a local rule expediently

disguised as an AO. A local court rule is a "rule of practice or procedure for

circuit or county application only," that, because of local conditions, supplies an

omission in, or facilitates application of a rule of statewide application, and does

not conflict therewith.s See Rule 2. 120(b)(l).

One court rule affected by the AO is Rule 2.505(e), which delineates the

ways by which an attorney may appear in a case. The AO allows automatic

assignment when a referenced attorney appears by filing initial papers, but

prohibits automatic reassignment of the case when the referenced attorney files a

notice of appearance after the initial pleading or responsive motion has been filed.

However, the AO is silent in cases when a referenced attorney files a motion for

substitution of counsel, thus appearing by order of the court. By conditioning the

automatic assignment of a recused judge on the method of appearance of the

referenced attorney, the AO has qualified Rule 2.505(e), and confounds the

decision on the wayan attorney appears in a pending case with the disqualification

of a judge. This extends and qualifies the application of Rule 2.505( e) to pending

cases with referenced attorneys of record, which necessitates a review of the AO as

5 The local rule may address other matters that are required by the Florida Constitution, general law, rules of court, or a supreme court opinion to be adopted by or in a local rule. See Rule 2.l20(b)(2).

9

a local rule.

A second court rule affected by the AO is Rule 2.330. When a referenced

attorney appears of record in a pending case, automatic reassignment is prohibited.

The AO directs the attorney to Rule 2.330 as an additional vehicle for judicial

disqualification, if required. However, Rule 2.330 requires the recused judge to

"determine only the legal sufficiency of the motion" and not to pass on the truth of

the facts alleged. Nonetheless, in the case of a judge who has disclosed his

intention to disqualify himself, the Supreme Court JEAC Opinion No. 99-2 holds,

"if a judge discloses a possible conflict, then, upon motion, the judge should recuse

regardless of the legal sufficiency of the motion." Because A-2011-037 is a

standing recusal AO disclosing possible conflict between the judge and a

referenced attorney, the legal sufficiency requirement of Rule 2.330 is inconsistent

with Supreme Court JEAC Opinion. Chief Judge Menendez's inappropriate

adaptation of Rule 2.330 for recused judges necessitates a review of the AO as a

possible local court rule. Hence, this petition.

ARGUMENT

A brief review of the difference between voluntary judicial recusal and

disqualification of a judge by motion, the language of a typical judicial recusal AO,

and the legal sufficiency of a standing AO, sets the background for Lane's

arguments.

10

Recusal v. Disqualification

Although the words "recusal" and "disqualification" appear in the common

law interchangeably, they differ. Disqualification is the process by which a litigant

seeks to remove a specific judge from a specific case. Recusal signifies a

voluntary decision made by the judge when he removes himself from a single or a

class of cases. See Sume v. State, 773 So. 2d 600 (Fla. 1st DCA 2000); Forest v.

State, 904 So. 2d 629 (Fla. 4th DCA 2005).

A trial judge may instruct the clerk not to make certain assignments in cases

filed in which he may have a possible conflict with certain lawyers. This is a

blanket disqualification in which the judge recuses himself from a class of cases by

entering a standing recusal order. It is an administrative recusal from a class of

cases that confers no rights on the litigants. A party who fears that a judge is

biased may at any time file a motion to disqualify the judge under Rule 2.330, but

this right exists only on a case-by-case basis. A litigant has no right to pursue

disqualification of a Florida judge from a class of cases. Ginsberg v. Holt, 86 So.

2d 650 (Fla. 1956); Cascone v. Foster, 774 So. 2d 773 (Fla. 1 st DCA 2000).

The Supreme Court Judicial Ethics Advisory Committee6 has recognized the

6 The JEAC is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting the judge or judicial candidate. Its opinions are advisory to the inquiring party, the Judicial Qualifications Commission, and the jUdiciary at large.

11

differences between recusal and disqualification:

It is important to note that the Inquiring Judge entered an Order of Recusal, not an Order Granting a Motion for Disqualification. There is a significant difference. Disqualification is the formal procedure described in Chapter 38, Florida Statutes, Rule 2.330, Florida Rules of Judicial Administration, and Canon 3E of the Code of Judicial Conduct. Recusal, not formally recognized by current Florida statutes or Rules of Court, is a common law procedure for a judge to remove himself/herself from a particular case ...

or a class of cases. See JEAC Opinion No. 2008-04.

A standing order of recusal, "not formally recognized by current Florida

statutes or Rules of Court" is the subject of this petition. No specific language is

required in order for the judge's order of recusal to be effective. Goolsby v.

State,9l4 So. 2d 494 (Fla. 5th DCA 2005). In the absence of formal rules, the

process of judicial recusal is expected to vary. For example, the internal operating

procedure of the Second District Court of AppeaC directs the clerk to:

. .. maintain a list for each active judge of persons or entities who are likely to appear before the court and whose involvement in a proceeding will require the judge's recusal. Each judge is responsible for keeping the clerk informed as additions to or deletions from this recusallist come to the judge's attention.

In the Thirteenth Judicial Circuit, judicial recusal is managed by the clerk of

court, pursuant to AOs entered by the chief judge.

7 See Internal Operating Procedures, Second District Court of State of Florida, Revised September 27,2007, p. 4, ~1.7.

12

Typical Language of Standing Recusal AO A-2009-00S

Each judicial recusal AO in the Thirteenth Judicial Circuit references

attorneys and their law firms whose appearance in a proceeding triggers recusal of

the judge and automatic assignment of the case to another division. AO A-2009-

005 is a typical judicial recusal order. Chief Judge Menendez entered the AO on

January 21, 2009, five days before Judge Silver was assigned to General Civil

Division H, on January 26,2009.

The language of AO A-2009-005 is typical of blanket recusal orders issued

by Chief Judge Menendez for other judges. It identifies a class of cases by naming

attorneys and law firms necessitating judicial disqualification. There were thirteen

standing judicial recusal AOs in the Thirteenth Judicial Circuit on the day A-2009-

005 was amended by Chief Judge Menendez. True and complete copies of these

AOs are attached hereto as Composite App. H.

The language of AO A-2009-005 is typical of standing judicial recusal AOs:

The Honorable Bernard C. Silver has indicated it is his intention to disqualify himself from all cases in which ... [certain attorneys referenced in the AO]; or any attorney associated with the law firm of [Entity Name], is attorney of record.

The AO then directs the clerk of the circuit court to:

... reassign all cases in which ... [a certain attorney referenced in the AO] is attorney of record as well as all cases in which any attorney associated with the law firm of [Entity Name], is attorney of record from any division

13

to which the Honorable Bernard C. Silver is assigned to another division until further order of the court.

The AO further explains that the reassignment of these cases is "necessary

for the proper and efficient administration of justice," and the AO is effective

immediately, on the day it is entered.8 Because the judicial recusal or reassignment

of the case to another division is performed by the clerk, the AO is referred to as

"automatic reassignment." No further investigation or consultation with the

recused judge is required. The standing AO is sufficient to disqualify the judge.

The Legal Sufficiency of a Standing Recusal AO

Recusal action is a voluntary professional decision by a judge consistent

with statutes9 and canons of judicial conduct. The Supreme Court's JEAC advises:

Canon 3E(1) requires a judge to "disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned ... " including but not limited to instances where the judge has a personal bias. "The question whether disqualification is required 'focuses on those matters from which a litigant may reasonably question a judge's impartiality rather than the judge's perception of his ability to act fairly and impartially. '" Stevens v. Americana Healthcare Corp., 919 So. 2d 713, 715 (Fla. 2d DCA 2006) (citing Livingston v. State, 441 So.2d 1083, 1086 (Fla. 1983).

8 These orders may be rescinded, amended, or superseded by subsequent AOs. In this case, A-2009-005 supersedes AOs A-2007-002 and A-2007-022.

9 For example, Title 28, United States Code, §455(a) codified this doctrine. Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

14

See JEAC Opinion No. 2009-01.

However, "legal sufficiency" is the crux of the issue when a motion to

disqualify a judge is initiated by a litigant. If the form of the motion is sufficient -

i.e., the motion is procedurally sufficient - it does not matter whether the substance

of the allegations is true. Madura v. Turosienski, 901 So. 2d 396, 398 (Fla. 2d

DCA 2005) (noting that, in evaluating a motion to disqualify, the court must accept

the facts alleged as true). Under Florida Rule of Judicial Administration 2.330(f),

a judge is required to immediately grant a disqualification if the motion is legally

sufficient. 10

Rule 2.330 applies only to trial judges, county and circuit judges in all

matters, in all divisions of the court. Any party may move to disqualify the trial

judge assigned to the case on grounds provided by rule, by statute, or by the Code

of Judicial Conduct. See Rule 2.330(a) and (b).

The motion must be granted provided only that the facts alleged, "would

place a reasonably prudent person in fear of not receiving a fair and impartial

trial." MacKenzie v. Super Kids Bargain Store, 565 So. 2d 1332, 1335 (Fla. 1990)

10 The judge against whom an initial motion to disqualify under subdivision (d)(l) is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action. See Rule 2.330(f).

15

(quoting Livingston v. State, 441 So.2d 1083, 1087 (Fla. 1983)). Thus, the issue is

whether the facts alleged in the motion and accompanying affidavit would place a

reasonably prudent person in fear of not receiving a fair or impartial trial. 11 See

Rogers v. State, 630 So. 2d 513, 515-16 (Fla. 1993); Smith v. Santa Rosa Island

Auth., 729 So. 2d 944, 946 (Fla. 1 st DCA 1998).

Moreover, the court must review the motion from the litigant's perspective,

questioning the 'judge's impartiality rather than [from] the judge's [perspective] of

his ability to act fairly and impartially." Id. at 1334 (quoting Livingston, 441 So.

2d at 1086). The court must therefore take the facts stated in the motion as true

and view them from the movant's perspective. See Rogers at 515; Smith at 946-47

("[i]t is not a question of how the judge feels; it is a question of what feeling

resides in the movant's mind, and the basis of such a feeling.")

While disqualification is mandatory, if the motion is legally sufficient,

recusal is a voluntary act by the judge. However, the obligation to recuse is not

limited to those instances in which a party makes a motion. Rather, it places a

burden on a judge to sua sponte identify those circumstances in which recusal may

II Nevertheless, a motion to disqualify a judge must allege specifically the facts and reasons upon which the movant relies as the grounds for disqualification, and show that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge. See Rule 2.330( c) and 2.330( d)(l).

16

be appropriate. I2 Litekv v. U.S., 510 U.S. 540 (1994). Hence the standing AOs

entered by Chief Judge Menendez.

A standing judicial recusal AO, such as AO A-2009-005, documents the

circumstances in which the judge determines his recusal is mandated. The AO

discloses the judge's intention to disqualify himself from a class of cases defined

by a list of referenced attorneys and directs the clerk of the court to reassign these

cases to another division should the named attorneys appear of record. The clerk

then records the AO in each county where the order is effective. 13

The Supreme Court's JEAC concluded, "[i]t is our Committee's opinion that

if a judge discloses a possible conflict, then, upon motion, the judge should recuse

regardless of the legal sufficiency of the motion." See JEAC Opinion No. 99-2.

Two appellate decisions affirmed the JEAC 1999 opinion.

In Melbourne v. Wright, 760 So. 2d 1100 (Fla. 5th DCA 2000), the appellate

court granted a petition for writ of prohibition seeking review of an order denying

12 Judges also have an obligation not to recuse themselves in certain circumstances. See Laird v. Tatum, 409 U.S. 824, 837 (1972) (holding "a federal judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified") (and cases cited therein).

13 Pursuant to 2.215(e)(3), the AOs designated by the chief judge are indexed and recorded by the clerk of the circuit court in each county in which the orders are effective. The chief judge shall, on an annual basis, direct a review of all local AOs to ensure that the set of copies maintained by the clerk remains current and does not conflict with Supreme Court or local rules.

17

a motion to disqualify judge. The motion and supporting affidavit alleged a fear of

prejudice or bias. In Melbourne, the petitioner's motion "specifically refers to

Administrative Order 99-5-B of the Eighteenth Judicial Circuit which orders that

all pending or newly filed cases in which certain named individuals and law firms

appear as counsel should not be heard by [the] Judge." The court ruled, "[u]nder

the circumstances, we find the petitioner has met the burden to establish a legally

sufficient basis for disqualification." Id.

In Lane v. Ehrlich, Case No. 2Dll-4913, on October 11, 2011, the Second

District Court of Appeal granted Lane's petition for a writ prohibiting Judge Silver

from presiding further in the case. The court deemed Lane's motion to disqualify

the Judge Silver legally sufficient. Lane's motion states that Chief Judge

Menendez's AOs, A-2011-037 and A-2011-038, contained the facts that

constituted the grounds for Lane's fear that she will not receive a fair trial or

hearing.

The law is well settled on this issue. The standing recusal AO A-2009-005

and AO A-2011-037 meet the legal sufficiency burden of Rule 2.330, and Judge

Silver should have recused himself immediately upon the filing of the motion.

ARGUMENT

AO A-2011-037 VIOLATES CASE LAW

On or about August 22, 2011, Lane retained counsel, Jenkins, who was also

18

the subject of Chief Judge Menendez's automatic recusal AO A-2009-005. Upon

Jenkins' notice of appearance, on August 24, 2011, the case was automatically

transferred to another division.

On September 7, 2011, Chief Judge Menendez entered two new AOs

relative only to Judge Silver and to no other circuit judge. AO A-20ll-037,

effective nunc pro tunc to August 24, 2011, provided that the automatic

reassignment of cases before Judge Silver only applies when a referenced attorney

files an initial pleading or responsive motion. The new AO explains:

Under the current language of Administrative Order A-2009-005, the Clerk of Court automatically reassigns a case upon the filing of a notice of appearance by one of the attorneys referenced in the administrative order, even where the case may have been pending for years.

The new AO then amends nunc pro tunc the recusal provision. "This

automatic reassignment order only applies when any of the above referenced

attorneys files an initial pleading or an initial responsive motion." Finding that AO

A-20ll-037 superseded AO A-2009-005, Chief Judge Menendez also entered AO

A-20ll-038, specifically reassigning this case back to Judge Silver. Chief Judge

Menendez explained the belated reversal of the judicial disqualification as follows:

If any of the above-referenced attorneys files a notice of appearance after an initial pleading or initial responsive motion, then the automatic reassignment provision of this administrative order does not apply.

Subsequent to the August 24, 2011 assignment of the case to another

19

division, Judge Silver conducted a hearing on August 30, 2011, in which he

infonned Lane's counsel, "we are reviewing the situation regarding the

reassignment to Division F, and will get back to you in due course." App. C, at p.

4,11. 17-19. He continued, "[t]he matter is under review in tenns of whether or not

the case will be reassigned back to me. So depending upon my review of the

situation, we will let the parties know." See App. C, pp. 6-7,11.24-25, 1-2.

The hearing transcript is clear evidence that Judge Silver and Chief Judge

Menendez reconsidered the August 24, 2011 decision to disqualify Judge Silver

pursuant to the standing AO A-2009-005. Chief Judge Menendez thus entered the

new AOs, A-2011-037 and A-2011-038, on September 7, 2011, "to clarify the

language of Administrative Order A-2009-005," with new language that enabled

Judge Silver to reconsider his prior disqualification decision.

Chief Judge Menendez's AOs plainly contravene Jenkins v. Motorola, Inc.,

911 So. 2d 196 (Fla. 3d DCA 2005):

Once a trial judge enters an order of disqualification, he or she may not reconsider the decision to disqualify. Further, a trial judge may not reconsider an order of disqualification even if the trial judge entered the order in error.

AO A-2011-027 also violates Goolsby v. State, 914 So. 2d 494 (Fla. 5th DCA

2005):

A judge who enters an order disqualifying herself is barred from further participation in the case, Florida Rule

20

Judicial Administration 2.160(f), and may not reconsider the decision to disqualify herself, State v. Schack, 617 So. 2d 832, 833-34 (Fla. 4th DCA 1993), even if the order was entered in error. Deberry v. Ward, 625 So. 2d 992 (Fla. 4th DCA 1993).

Therefore, Jenkins v. Motorola and Goolsby v. State bar a judge from amending a

recusal AO nunc pro tunc in order to reverse a judicial disqualification, even if the

disqualification resulting from the prior AO was in error.

AO A-2011-037 INAPPROPRIATELY QUALIFIES RULE 2.505(E)

AO A-2011-037 specifically bars the clerk from reassigning Judge Silver's

cases after initial papers are served. The AO states:

This automatic reassignment order only applies when any of the above-referenced attorneys files an initial pleading or an initial responsive motion.

If any of the above-referenced attorneys files a notice of appearance after an initial pleading or initial responsive motion, then the automatic reassignment provision of this administrative order does not apply.

However, the new AO does not void the disqualification of Judge Silver,

even if initial papers have already been served. His intention to recuse himself

remains in effect.

The new AO allows automatic reassignment by the clerk only if the

referenced attorney files initial papers, and it bars automatic reassignment if the

referenced attorney notices an appearance thereafter. Therefore, the manner in

which an attorney appears in the case, whether she files an "initial pleading" or a

21

"notice of appearance," governs whether the automatic reassignment occurs.

Rule 2.505( e) delimits the ways in which an attorney may appear In

proceedings: (1) by filing and serving the first pleading or paper in the case; (2) by

substitution of counsel; (3) or by filing and serving a "notice of appearance."

According to AO A-2011-037, the clerk automatically reassigns the case

under Rule 2.505( e)(1) only if the referenced attorney appears in the proceedings

by filing an initial pleading or responsive motion. However, should a referenced

attorney who is co-counsel file a "notice of appearance" under Rule 2.505(e)(3)

concomitantly with a non-referenced attorney who files the initial papers, then

automatic assignment of case by the clerk is barred. Only the appearance of a

referenced attorney who files initial papers triggers the automatic reassignment.

Therefore, under all circumstances, after initial papers have been served, the

clerk is barred from reassigning the case to another division if the referenced

attorney appears in the case pursuant to Rule 2.505(e)(3), by filing a "notice of

appearance." However, when the attorney appears of record by "substitution of

counsel" pursuant to Rule 2.505(e)(2), automatic assignment by the clerk is not

barred. This discrepancy is odd, and thus subjects Rule 2.505( e) to extraneous

consideration concerning the automatic recusal of the judge.

Even if the AO were to explicitly bar the automatic assignment under Rule

2.505(e)(2), the appearance of new counsel by substitution is possible "only by

22

order of court and with written consent of the client, filed with the court." It

requires an order entered by a presiding judge who has previously "indicated it was

his intention to disqualify himself from all cases in which any attorney referenced

in the administrative order was attorney of record." The recused judge is thus

compelled by the AO to rule on the substitution of an attorney whose appearance

in the case will most likely cause his disqualification.

Therefore, the new AO qualifies Rule 2.505(e)(2) in an unexpected way.

The substitution of counsel under AO A-20 11-037 no longer deals exclusively with

the appearance of a new attorney who substitutes for the withdrawing counsel. If

the new attorney is referenced in the AO, the substitution order entered by the

judge compels a new decision on his prior disqualification, pursuant to the AO.

The judge orders the substitution of counsel, with full knowledge that the AO has

recused him from presiding further over the case in which the referenced attorney

appears. The decision on the motion to substitute counsel, Rule 2.505( e )(2), has

thus been altered by recusal considerations. The AO is therefore a local rule,

adapting 2.505( e) to cases presided over by recused judges.

AO 2011-037 thus compelled Judge Silver to contend with Goolsby v. State,

barring him from "further participation in the case" and prohibiting him from

"reconsider[ing] the decision to disqualify himself or herself, even if the order was

entered in error." Moreover, an order entered by a trial judge who has been

23

disqualified is void. 14 See Jenkins v. Motorola, Inc., 911 So. 2d 196 (Fla. 3d DCA

2005), citing Stimpson Computing Scale Co. v. Knuck, 508 So. 2d 482 (Fla. 3d

DCA 1987).

The case at bar provides a poignant example of how judicial recusal can be

altered by the method of appearance of a referenced attorney. The entire sequence

of events is rendered in Chief Judge Menendez's AO A-2011-038:

The Honorable Bernard C. Silver has been assigned to General Civil Division "H" since January 2009. On August 24, 2011, Joryn Jenkins filed a notice of appearance as local counsel of record for the plaintiff in the Lane case. Joseph E. Parrish is currently local counsel of record in the Lane case. Mr. Parrish has filed a motion to withdraw but the motion has not yet been adjudicated. (Cf. AO A-2011-38, ~l)

Contemporaneous with filing her notice of appearance, Ms. Jenkins-the attorney referenced in Administrative Order A-2007-022 and one of several attorneys referenced in Administrative Order A-2009-005-directed the Clerk of Court to reassign the Lane case from Division "H" to another division. The clerk reassigned the Lane case to Division "F" on August 24, 2011. Since the clerk's reassignment of the Lane case to General Civil Division "F," Administrative Order A-2009-005 has been superseded by attached Administrative Order A-2011-037." (Cf. AO A-2011-38, ~3)

14 [A]ny order entered simultaneously with the order of recusal, as well as any subsequent orders she enters in that case, are void and have no effect. Jenkins v. Motorola, Inc., 911 So. 2d 196, (Fla. 3d DCA 2005); see Davis v. State, 849 So. 2d 1137, 1138 (Fla. 1st DCA 2003); Haverty v. State, 830 So. 2d 264 (Fla. 5th DCA 2002); Thomas v. State, 756 So. 2d 217 (Fla. 4th DCA 2000).

24

Chief Judge Menendez concludes, "[b lased on the provisions of Administrative

Order A-2011-037, the Lane case should be reassigned back to General Civil

Division "R." Id.

Would Chief Judge Menendez's conclusion in AO A-2011-038 have been

different if Jenkins had not noticed her appearance but, instead, had stipulated with

Parrish to move for substitution of counsel? Under this hypothetical, Judge Silver

would have been compelled to solicit an amendment to AO A-2009-005 with very

different automatic reassignment instructions to the clerk. It is likely that he would

have approved the substitution of counsel, but would still have refused to recuse

himself. Chief Judge Menendez would then have contrived an alternative AO A-

2011-037, customized for substitution of counsel, under Rules 2.505(e)(1) and

2.505(e)(2), instead of Rules 2.505(e)(1) and 2.505(e)(3).

AO A-2011-037 INAPPROPRIATELY QUALIFIES RULE 2.330

There is little doubt that AO A-2011-037 calls for further clarifications of

Rule 2.505(e)(2) when a referenced attorney appears in a case by substitution of

counsel. The AO also qualifies Rule 2.330 in such circumstances.

Consider a litigant who has retained a new attorney after the parties served

their respective initial papers. A new attorney files a motion for the court's

approval of the stipulation for substitution of counsel, pursuant to Rule 2.505( e )(2),

and sets the motion for hearing. The new attorney is referenced in the recusal AO.

25

He, therefore, attaches a copy of AO A-2011-037 to the motion for substitution of

counsel.

Because the new counsel has not yet appeared of record, the decision on

judicial recusal must await the court's order. Moreover, the litigant who has

retained the new attorney has no ground for moving to disqualify the judge under

Rule 2.330.

During the hearing on the motion to substitute counsel, the judge approves

the substitution,15 the new counsel and the judge discuss the AO, but the judge

states that the case has been pending for years, and that he will not recusel6

himself. Having thus discovered the facts constituting the grounds for a motion to

disqualify the judge, pursuant to Rule 2.330( d)(l), the new attorney moves to

disqualify the judge at the hearing.

Pursuant to Rule 2.330(e):

Any motion for disqualification made during a hearing or

15 There are other possible rulings: the judge may recuse him/herself from the case, under 2.330(i), without ordering the substitution; the judge may order the substitution of counsel and hislher own recusal; or the judge may condition the substitution of counsel upon waver of disqualification, pursuant to Rule 2.505(e)(2), and Canon 3F, Florida Code of Judicial Conduct. The latter provides, "[a] judge disqualified by the terms of 3E may disclose on the record the basis of the judge's disqualification and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification .... " See also Supreme Court's JEAC Opinion No. 99-28, issued November 29, 1999. 16 "Judge Silver had indicated it was his intention to disqualify himself from all cases in which any attorney referenced in the AO was attorney of record." See AO A-2011-037, ~1.

26

trial must be based on facts discovered during the hearing or trial and may be stated on the record, provided that it is also promptly reduced to writing in compliance with subdivision (c) and promptly filed. A motion made during hearing or trial shall be ruled on immediately.

The motion made by the new counsel during the hearing is reduced to writing

promptly; the trial judge then denies the motion, finding the motion legally

insufficient.

The judge and the new attorney followed the sequence of events suggested

by the rationale encapsulated in the language of AO A-2011-037:

If any of the above-referenced attorneys files a notice of appearance after an initial pleading or initial responsive motion, then the automatic reassignment provision of this administrative order does not apply. See Sume v. State, 773 So. 2d 600 (Fla. 1 st DCA 2000), quoting Town Centre of Islamorada, Inc. v. Overby, 592 So. 2d 774, 776 (Fla. 3rd DCA 1992) (explaining that "a party may not bring an attorney into a case after it has been assigned to a judge, and then move to disqualify the judge on grounds that the judge has a bias against the attorney.") Nothing in this provision precludes any of the above referenced attorneys from filing a motion for judicial disqualification under Florida Rule of Judicial Administration 2.330.

In a later AO, A-2011-052 (rescinding A-2011-038, which Chief Judge

Menendez entered after the appellate court disqualified Judge Silver and reversed

AO A-2011-038, which had reassigned Lane's case back to Judge Silver), Chief

Judge Menendez explains:

Administrative Order A-2011-038 specifically stated that

27

the reassignment of the Lane case in no way precluded any party from filing a motion disqualification under Florida Rule Administration 2.330.

for judicial of Judicial

The reliance in AO A-2011-037 on Rule 2.330 to execute the disqualification of

the judge creates a chain of judicial investigations and decisions that violate the

litigant's right to due process.

In the hypothetical discussed above, the same judge who investigates the

motion filed by a referenced attorney to substitute counsel, which includes a

discussion of the judge's recusal under the AO, must also adjudicate the motion to

disqualify the judge, filed under Rule 2.330. In fact, the AO explicitly confers

investigative and adjudicative powers on the same judge who has been recused by

theAO.

a. AO A-20ll-037: The chief judge enters a standing recusal order after

Judge Silver had investigated and informed the chief judge that "it was his

intention to disqualify himself from all cases in which any attorney referenced in

the administrative order was attorney of record."

b. The order on substitution of counsel: The circuit judge considers the

substitution of a withdrawing counsel with a new counsel referenced in AO A-

2011-037. The hearing is, in fact, an investigation of whether the situation calls for

judicial recusal, given the conflict of interest between the judge and the new

counsel. The AO directs the referenced attorney to file "a motion for judicial

28

disqualification under Florida Rule of Judicial Administration 2.330."

c. Motion to disqualify judge under Rule 2.330: Once the motion is

made during the hearing and promptly reduced to writing and filed, the judge must

adjudicate the matter immediately,17 pursuant to Rule 2.330(e).

The 2010 Florida Supreme Court review of the Judicial Qualifications

Commission proceedings concerning Judge Ralph Eriksson concluded that the

practice of "conferring investigative and adjudicative powers on the same

individuals ... must be forbidden if the guarantee of due process is to be adequately

implemented." Inquiry Concerning a Judge, 36 So. 3d 580 (Fla. 2010). This

Court18 explained:

The finding that someone involved in the investigation of an allegation may later adjudicate that same allegation and not violate due process applies to the judicial

17 Although the above hypothetical entails multiple decisions related to judicial recusal, only one decision is under Rule 2.330. Therefore, these are "successive motions" under 2.330(g), because the circuit judge has not been previously disqualified under 2.3 30( d) (1 ), and there is no successor judge until the case is assigned to another judge. Only a successor judge may rule on the truth of the facts alleged in support of the motion.

18 This Court's earlier rulings have allowed combining investigative and judicial functions within the same administrative office under certain specific conditions. See Ridgewood v. Dept. of Community Affairs, 562 So. 2d 322 (Fla. 1990) (combining fact-seeking and judicial functions in same office does not automatically violate due process. An impartial decision-maker is a basic constituent of minimum due process.) However, Judge Silver and Chief Judge Menendez are not "impartial decision-makers" when they investigated the consequences of their own AO A-2009-005, and entered AO A-2011-37.

29

Id. at 59l.

disciplinary context as it does to the administrative law framework.

Therefore, by reqUITIng an investigation by a recused judge as to the

condition and circumstances under which a referenced attorney will trigger the

judge's recusal from the case, and by requiring Rule 2.330 to adjudicate the

disqualification of the recused judge, AO A-2011-037 has instituted a mechanism

by which a recourse to Rule 2.330 compels the recused circuit judge to violate the

due process rights of the litigant.

The above example is not a hypothetical scenario. AO A-2011-037 was

entered by Chief Judge Menendez on September 7, 2011, one week after the

August 30, 2011 hearing at which Judge Silver, who was no longer assigned to this

case, nevertheless informed the parties that he had taken it upon himself to

investigate the transfer of Lane's case to another division. Judge Silver informed

the parties, "we are reviewing the situation regarding the reassignment to Division

F, and will get back to you in due course." Lane's App. C, at p. 4, lines 17-19. He

continued, "[ t ]he matter is under review in terms of whether or not the case will be

reassigned back to me. So depending upon my review of the situation, we will let

the parties know." See Lane's App. C, pp. 6-7, lines 24-25, 1-2.

The following summarizes the steps Judge Silver and Chief Judge Menendez

took to investigate and adjudicate the automatic disqualification of Judge Silver:

30

a. First, Judge Silver investigated the clerk's reassignment, pursuant to AO

A-2009-005, of Lane's case from Division H to Division F. Clearly, Jenkins

appeared of record after the initial pleading or initial responsive motion had been

filed. Jenkins noticed her appearance on August 24, 2011, and the clerk assigned

the case to another judge on the same day.19

b. During Judge Silver's investigation, he learned or knew that Sume v.

State and Town Centre of Islamorada, Inc. v. Overby ruled "a party may not bring

an attorney into a case after it has been assigned to a judge, and then move to

disqualify the judge on grounds that the judge has a bias against the attorney."

However, Sume did not apply because Lane had not moved to disqualify Judge

Silver pursuant to Rule 2.330, and her case was no longer assigned to him.

c. Judge Silver met with Chief Judge Menendez, who, at his request,

reversed the automatic transfer of Lane's case on September 7, 2011 by

superseding AO A-2009-005 with a new automatic recusal order, AO 2011-037,

nunc pro tunc to August 24, 2011. He then reassigned Lane's case back to Judge

Silver via AO 2011-038, specifically leaving open the possibility that Lane might

move to disqualify Judge Silver, pursuant to Rule 2.330.

19 Investigating how standing AOs affect the representation of a party in a case that is, at the time, assigned to another division, is an independent inquiry. Yet a judge must not independently investigate facts in a case and must consider only the evidence presented. See Canon 3 Commentary.

31

d. AO 2011-037, therefore, afforded Judge Silver the opportunity to

adjudicate his disqualification from Lane's case, the same issue he had previously

investigated. Chief Judge Menendez describes the chain of events that followed in

AO A-2011-052:

After the Lane case was reassigned to General Civil Division "H" via Administrative Order A-20 11-038, the plaintiff filed a motion under Rule 2.330 seeking the disqualification of the Honorable Bernard C. Silver- the judge presiding in General Civil Division "H." Judge Silver entered an order denying the plaintiff s motion for judicial disqualification after which plaintiff sought review of the order at the Second District Court of Appeal.

AO A-2011-037, therefore, enabled Judge Silver to adjudicate an issue he

had previously, according to his own words, investigated, thereby violating Lane's

right to due process. Lane sought and obtained relief from the appellate court

because her right to due process was violated by AO A-20 11-037.

AO A-2011-037 must be rescinded or quashed because it conferred

investigative and adjudicative powers on Judge Silver, thereby violating Lane's

right to due process. It is ironic that Rule 2.330, which is designed to safeguard the

litigant's constitutional right to a fair trial, also breaches the litigant's right to due

process when uses in conjunction with AO A-2011-037.

AO A-2011-037 VIOLATES THE EQUAL PROTECTION CLAUSE

This Court has "expressly held that a judge may be disqualified due to

32

prejudice towards an attorney where the prejudice is of such degree that it

adversely affects the client." Moreover, "[p]rejudice against a party's attorney can

be as detrimental to the interests of that party as prejudice against the party

himself." Livingston v. State, 441 So. 2d 1083 (Fla. 1983); Ginsberg v. Holt, 86

So. 2d 650, 651 (Fla. 1956). See also State ex reI. Fuente v. Himes, 160 Fla. 757,

36 So. 2d 433 (Fla. 1948). The Supreme Court makes no exceptions for cases that

have been pending for years, nor does the Court limit the disqualification of a

biased judge only to cases where attorneys of record have filed the initial papers in

a case.

Citing Sume v. State, 773 So. 2d 600 (Fla. 1st DCA 2000), Chief Judge

Menendez concluded, on September 7, 2011, quoting Town Centre of Islamorada,

Inc. v. Overby, 592 So. 2d 774, 776 (Fla. 3d DCA 1992), "a party may not bring an

attorney into a case after it has been assigned to a judge, and then move to

disqualify the judge on grounds that the judge has a bias against the attorney." Id.

See AO A-2011-037, p. 2, ~1.

On September 7, 2011, Chief Judge Menendez entered two new AOs

relative only to Judge Silver. In AO A-2011-037, effective nunc pro tunc to

August 24, 2011, finding that AO A-2009-005 was not intended to provide for the

automatic reassignment of a pending case beyond the filing of initial pleadings or

initial responsive motions, Chief Judge Menendez ordered that the automatic

33

reassignment of cases before Judge Silver only applies when a referenced attorney

files initial papers. Holding that AO A-2011-037 superseded AO A-2009-005,

Chief Judge Menendez concurrently entered AO A-20 11-038, specifically

reassigning Lane's case back to Judge Silver.

There were twelve other standing recusal AOs in effect on September 7,

2011 in the Thirteenth Judicial Circuit. Eleven were entered by Chief Judge

Menendez. He explained in AO A-2011-037, under the current language of these

standing AOs, the clerk "automatically reassigns a case upon the filing of a notice

of appearance by one of the attorneys referenced in the administrative order, even

where the case may have been pending for years." It was not the intent of the AOs

to provide for the automatic reassignment of a pending case beyond the filing of

initial papers. However, nearly four months have passed since Chief Judge

Menendez's finding, and he has amended no other of his standing AOs. The same

finding about the intended use of the AOs applies to all standing AOs he has

entered since 2004. Yet none of the other twelve AOs has been amended to date;

none incorporates Sume v. State and Town Centre of Islamorada, Inc. v. Overby.

On October 11, 2011, the Second District Court of Appeal entered an order

granting the petition for a writ prohibiting Judge Silver from presiding further in

the Lane case. After the appellate court order, the clerk of the circuit court

reassigned the Lane case to General Civil Division 1.

34

On November 2, 2011, Chief Judge Menendez assigned the Honorable

Christopher C. Sabella ("Judge Sabella") to Division 1. See AO A-20ll-053. On

November 27, 27, 2011, Chief Judge Menendez entered a new judicial recusal AO

reassigning certain cases of Judge Sabella. See AO A-20ll-057. Judge Sabella

has been a circuit court judge since 2006; this is his first judicial recusa1 AO.

Judge Sabella's AO contains the same language found in AO A-20ll-037. Now,

two judge's presiding over general civil divisions to which Lane's case has been

assigned are subject to the same recusal provisions of AO A-20ll-037. Yet not

one of the other standing recusal AOs in the General Civil Division has been

amended.

Lane's due process and equal protection rights were violated by AO A-2011-

037. The AO has altered the automatic reassignment of pending cases when

referenced attorneys appear of record in the general civil divisions of the circuit

court. In Divisions H and I, automatic reassignment of pending cases by the clerk

is prohibited after initial papers have been served. In other divisions, specifically

Divisions D and F, automatic reassignment of cases of similarly-situated litigants

is allowed. Therefore, effective August 24, 2011, Lane was deprived of her right

to be represented by an attorney of her choice, in a court free of prima facie

prejudice of the judge, compared to similarly-situated persons in Divisions D and

F.

35

The Thirteenth Judicial Circuit has twelve general civil divisions/o each

presided over by a circuit judge. The divisions are named "A" through "L" and

"T." Divisions Land T specialize in complex business litigation, and the Jimmy

Rice Act, respectively, and the remaining ten general civil divisions are not

specialized. Six of the ten divisions are presided over by judges with no standing

recusal AOs (Divisions A, B, C, G, I, J, and K). Chief Judge Menendez has

entered recusal AOs for the four judges presiding21 over Divisions D, F, H, and 1.

Therefore, before September 7, 2011, the day AO A-2011-037 was entered,

all litigants with cases pending in Divisions D, F, H, and I were treated the same in

the event that they retained a referenced attorney, no matter when that attorney

appeared of record.

In Divisions D and F (and in Division H prior to September 7, 2011),

automatic reassignment by the clerk is still governed by recusal procedures similar

to AO A-2011-005. See AOs A-2004-011, A-2004-036, and A-2004-040, entered

by Chief Judge Menendez in 2004. These AOs instruct the clerk to reassign any

20 Jurisdiction of this court division includes professional malpractice, products liability, real property/foreclosure, auto negligence, eminent domain, condominium, contract and indebtedness, and other civil matters in excess of $15,000. In addition, jurisdiction includes appeals from final AOs of local government code enforcement boards and the majority of appeals from County Court.

21 Judge Sabella's assignment to Division I is effected on January 3,2012. See AO A-2011-053, entered November 2,2011.

36

pending case in which a referenced attorney appears of record, regardless of when

that appearance occurs.

In Division H, as of September 7, 2011, and in Division I, effective January

3, 2012, automatic reassignment by the clerk is governed by recusal procedures set

forth in AOs A-2011-037 and A-2011-057. These AOs prohibit the automatic

reassignment of pending cases by the clerk if the referenced attorney files a notice

of appearance after initial papers have been served in the case.

The availability of automatic reassignment of cases to similarly-situated

litigants in one division of the court but not in the other violates equal protection

rights. See Spencer v. State, 545 So. 2d 1352 (Fla. 1989) ("That procedure of

allowing a choice in one district but not in the other violates equal protection rights

guaranteed under article I, section 2, of the Florida Constitution, and the sixth and

fourteenth amendments of the United States Constitution.")

To apply the rational relationship test to Lane's equal protection claim,22 one

must be guided by Samples, et al., v. Florida Birth-relates Neurological, et al., 40

So. 3d 18 (Fla. 5th DCA 2010) and Miller v. State, 971 So. 2d 951, 952 (Fla. 5th

DCA 2007). No suspect class, such as race, is involved, and therefore, the rational

22 The Equal Protection Clause of the United States Constitution provides that "[ n]o state shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend. XIV, § 1. Similarly, the Equal Protection Clause of the Florida Constitution provides that "[a]ll natural persons are equal before the law . . . ." Art. I, § 2, Fla. Const.

37

relationship test applies to Lane's equal protection claim.

Id.

Under this test, a statute must be upheld if the classification bears a rational relationship to a legitimate government objective. Id. Conversely, a statutory classification violates equal protection if it treats similarly-situated people in a different manner based upon an illogical and arbitrary basis. Id.

As the party challenging section 766.31 (1 )(b) 1, as applied, on equal protection grounds, [Lane] bear the burden to show that (1) [she] were treated differently under the law from similarly-situated persons, (2) that the statute intentionally discriminates against [her], and (3) that there was no rational basis for the discrimination.

Lane was treated differently under the law from similarly-situated persons.

Lane is a party in litigation whose case was assigned to General Division H in

2007. Judge Silver was assigned to preside over Division H in January 2009. The

Honorable D. Michelle Sisco ("Judge Sisco") presides over General Civil Division

D, and the Honorable Charles Ed Bergmann ("Judge Bergmann") presides over

General Civil Division F. Judges Silver, Sisco, and Bergmann have similar

standing judicial recusal AOs that instruct the clerk to automatically reassign

pending cases appear as attorney of record.

Lane retained a new local counsel who was a referenced attorney in Judge's

Silver's standing recusal AO A-2009-00S. Lane's new attorney noticed her

appearance on August 24, 2011, and she contemporaneously noticed the clerk

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about her appearance in Lane's case. The clerk promptly reassigned Lane's case to

another division, pursuant to AO A-2009-00S. The case was assigned to Division

F, presided over by Judge Bergmann.

On September 7, 2011, Chief Judge Menendez entered judicial recusal AO

A-2011-037, effective nunc pro tunc to August 24,20111, and, finding that AO A-

2011-037 supersedes A-2009-00S, entered AO A-2011-038, thereby ordering the

clerk to reassign Lane's case back to Division H.

The new AO A-2011-037 amends the prior AO, prohibiting the automatic

reassignment of pending cases when a referenced attorney notices an appearance.

Only Judge Silver's AO was amended. Judge Sisco's and Judge Bergmann's AOs

were not altered.

Therefore, similarly-situated litigants in Divisions D and F (and in Division

H prior to August 24,2011) were not subjected to the new recusal terms in AO A-

2011-037. Lane was treated differently under the law from similarly-situated

persons. She would have been treated differently if her case had been pending in

Division F and if her new counsel was a referenced attorney in Judge Bergmann's

AO.

The AO intentionally discriminates against Lane. AO A-2011-037, entered

on September 7, 2011, was intentionally made effective nunc pro tunc August 24,

2011, to coincide with Lane's new attorney's appearance in the case. There is no

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other reason or rationale for the "effective date," other than the date of Jenkins'

notice of appearance and the date when the clerk reassigned Lane's case from

Division H (Judge Silver) to Division F (Judge Bergmann).

To confirm the targeting of Lane by AO A-2011-037, note AO A-2011-036,

entered by Chief Judge Menendez on August 25, 2011, one day after Jenkins

appeared in Lane's case. The new AO A-2011-036 is Honorable Paul L. Huey's

recusal AO. It is similar in terms to A-2009-005, and it contains none of the

provisions added in AO A-2011-037. Clearly, Lane has been singled out.

The timing of the order is not the sole indicator of intentional targeting and

selective discrimination. AO A-2011-037 cites Sume v. State, 773 So. 2d 600 (Fla.

1 st DCA 2000), quoting Town Centre of Islamorada, Inc. v. Overby, 592 So. 2d

774, 776 (Fla. 3d DCA 1992) as the rationale for amending the prior standing

recusal AO A-009-005. Town Centre of Islamorada, Inc. v. Overby and Sume v.

State were entered well before Chief Judge Menendez entered the earliest standing

AO in 2004. He knew or should have known of the relevance of this case law well

before he entered AO A-2011-005 in 2009. He knew well before A-2011-037 was

entered that Sume v. State was not applied to any of standing judicial recusal AOs

he had entered since 2004. AO A-2011-037 states:

Under the current language of Administrative Order A-2009-005, the Clerk of Court automatically reassigns a case upon the filing of a notice of appearance by one of the attorneys referenced in the administrative order, even

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where the case may have been pending for years.

See A-2011-00S, p. 1, ~2. This has been the prevailing practice.

If it was not the intent of the stating AOs "to provide for the automatic

reassignment of a pending case beyond the filing of initial pleadings or initial

responsive motions," why was A-2009-00S the only AO to be amended?23 To

date, none of the other standing AOs entered by Chief Judge Menendez since 2004

have been amended to accommodate Sume v. State. Therefore, Jenkins'

appearance in Lane's case was singled out for the application of Sume v. State;

Lane and Jenkins were subjected to disparate treatment compared to other

similarly-situated litigants and attorneys, specifically to those with cases pending

in Divisions D and F.

The only other AO conditioned on Sume v. State is Judge Sabella's AO A-

20 11-0S7, entered on November 2, 2011, after Judge Sabella was assigned to

preside over Division I, where Lane's case has been pending since October 12,

2011. Where Lane goes, Sume v. State follows.

There was no rational basis for the discrimination against Lane. Chief Judge

Menendez states, "it is necessary to clarify the language of Administrative Order

23 If the language in AO A-2011-037 represents the intent of AO A-2009-00S, it should also apply to the following AOs: A-1994-123, A-2000-039, A-2001-079, A-2004-011 A-2004-036 A-2004-039 A-2004-040 A-200S-193 A-200S-211 A-, , , , , , 200S-060, A-200S-103, A-2009-02S, A-2010-0S1, and AO A-2011-036.

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A-2009-005" because "[i]t was not the intent of Administrative Order A-2009-005

to provide for the automatic reassignment of a pending case beyond the filing of

initial pleadings or initial responsive motions." See A-2011-037, p. 1, ~2. He then

encapsulates the rational basis for the discriminatory provision in the AO by citing

Sume v. State, quoting Town Centre of Islamorada, Inc. v. Overby:

A party may not bring an attorney into a case after it has been assigned to a judge, and then move to disqualify the judge on grounds that the judge has a bias against the attorney.

However, there is no rational basis for citing Sume v. State when Lane did

not "move to disqualify the judge on grounds that the judge has a bias against the

attorney." The clerk reassigned Lane's case after a referenced attorney in the AO

appeared in her case.

The selective incorporation of Sume v. State into the language of a standing

recusal AO, made effective nunc pro tunc, has no rational basis. Chief Judge

Menendez has been chief judge since 2001, and he had known or should have

known of Sume v. State since it was entered in 2000. If he only learned of Sume v.

State after the appearance of Lane's counsel, Jenkins, then the same rationale used

to amend AO A-2009-005, should also apply to the following standing AOs: A-

2000-039, A-200l-079, A-2004-0ll, A-2004-036, A-2004-039, A-2004-040, A-

2005-193, A-2005-211, A-2008-060, A-2008-103, A-2009-028, A-2010-081, and

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AO A-2011-036. Nevertheless, he amended only AO A-2009-005?4

AO A-2011-037, entered on Sept. 7. 2011, superseding A-2009-005,

included new judicial recusal provisions that were applied to Lane's case, but were

not applied to twelve other standing automatic assignment AOs. The new AO was

made effective nunc pro tunc to August 24,2011, in order to target Jenkins and her

client, Lane. Lane and Jenkins25 were subjected to disparate treatment by AO A-

2011-037, and the application of the AO violated Lane's equal protection rights by

treating similarly-situated people in a different manner based upon an illogical and

arbitrary basis, the admitted bias of the circuit judge in question, The Honorable

Bernard C. Silver.

CONCLUSION

The AO should not have been entered and Judge Silver's automatic recusal

should never have been reversed. The two September 7, 2011 AOs should be

rescinded or quashed to avoid even the appearance of impropriety.

Lane, therefore, respectfully requests that this Court review the AO entered

24 As of December 26, 2011, and based on the public records of the clerk, none of the other 12 AOs was amended.

25 Jenkins was compelled to withdraw as attorney of record, leaving Lane without local counsel. Had Jenkins remained as Lane's counsel, she would have introduced potential bias and prejudiced the proceedings, which was the very reason Chief Judge Manuel Menendez entered AO A-2007-022, and its successors AO, A-2009-005, in the first place.

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by Chief Judge Menendez on September 7, 2011, determine that it violates due

process, and either quash it or direct Chief Judge Menendez to rescind it.

CERTIFICATE OF COMPLIANCE

The undersigned counsel certifies that the above document is submitted in

Times New Roman proportionately spaced 14-point font.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was

forwarded via U.S. mail to: Benjamin H. Hill, III, Mark J. Criser, and Patrick M.

Causey, PO Box 2321, Tampa, FL 33601; to The Honorable Bernard C. Silver,

George E. Edgecomb Courthouse, 800 E. Twiggs St., Rm. 519, Tampa, FL 33602;

and to The Honorable Manuel Menendez, Chief Judge of the Thirteenth Judicial

Circuit, State of Florida, George E. Edgecomb Courthouse, 800 E. Twiggs St.,

Room 602, Tampa, FL 33602, on thiS,? of December, 2012.

-:7 /;::::;:p Ry-N JENKINS, ESQUIRE

Florida Bar Number 366072 JORYN JENKINS & ASSOCIATES 3839 West Kennedy Boulevard Tampa, Florida 33609 Phone: 813/870-3839 Facsimile: 813/877-3839 J oryn@JorynJenkinsLaw.com

Appellate Counsel for Robin R. Lane

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