159 So. 3d 996
Fla. Dist. Ct. App.2015Background
- Richard Masten was convicted of direct criminal contempt, sentenced to probation, and his motion for a stay of sentence was denied.
- Masten sought appellate review of the denial of the stay; while that review was pending, he was charged with violating probation.
- The trial judge sent a 21‑paragraph email and follow‑up chambers emails to the Attorney General’s Office arguing against entitlement to a stay and attaching transcripts; Masten and his counsel were not copied.
- The Attorney General’s Office notified all parties about receiving the judge’s emails; once revealed, Masten filed a verified motion to disqualify the trial judge for bias.
- The trial judge denied the disqualification motion and (through counsel) filed a response characterizing the communications as a “purported ex parte communication” and suggesting she expected the Attorney General’s Office to represent her interests in the stay appeal.
- The court treated Masten’s subsequent appeal as a petition for writ of prohibition and concluded the motion to disqualify was legally sufficient.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the judge’s emails to the Attorney General were improper ex parte communications | Masten: emails were ex parte advocacy that compromised impartiality and warranted disqualification | Trial judge: communications were intended to aid the Attorney General and not improper; she expected the AG to represent her interests | The emails were ex parte and improper; they required recusal |
| Whether the judge’s response to the petition suggested personal interest and violated practice for prohibition proceedings | Masten: judge’s response showed personal interest and undermined impartiality | Judge (through counsel): characterized the communications as “purported” and defended expectation the AG would represent her interest | Response reinforced appearance of partiality and was error; judge should have remained silent |
| Whether Masten’s verified motion established an objectively reasonable fear of unfair trial | Masten: verified facts compel recusal because appearance of bias was reasonable | Trial judge: denied motion; argued no disqualifying bias | Court: taking verified allegations as true, a well‑grounded fear of unfair trial existed |
| Appropriate remedy (writ of prohibition / recusal) | Masten: seek disqualification and prohibition relief | Trial judge: opposed disqualification; court treated appeal as prohibition petition | Court granted petition (writ unnecessary to issue formally) and found recusal required |
Key Cases Cited
- Rose v. State, 601 So. 2d 1181 (Fla. 1992) (ex parte communications undermine appearance of judicial impartiality)
- Rollins v. Baker, 683 So. 2d 1138 (Fla. 5th DCA 1996) (judge acting as adversary is ground for disqualification)
- Ellis v. Henning, 678 So. 2d 825 (Fla. 4th DCA 1996) (in prohibition proceedings judges should generally remain silent)
- Great Am. Ins. Co. v. 2000 Island Blvd. Condo. Ass’n, Inc., 153 So. 3d 384 (Fla. 3d DCA 2014) (litigants are entitled to the cold neutrality of an impartial judge)
- Rodgers v. State, 948 So. 2d 655 (Fla. 2006) (standard for objectively reasonable fear of not receiving a fair trial)
- Kopel v. Kopel, 832 So. 2d 108 (Fla. 3d DCA 2002) (writ of prohibition may be granted though formal issuance can be unnecessary)