268 So. 3d 151
Fla. Dist. Ct. App.2019Background
- These are Engle-progeny tobacco cases before a Broward County judge; defendants (R.J. Reynolds, Philip Morris, Liggett, Vector) sought disqualification after the judge disclosed an ex parte conversation in a different Engle case (Calloway).
- At a pretrial status conference in Calloway the judge disclosed a longtime personal acquaintance with Attorney Hammer and said they had a brief conversation about Hammer’s recent Engle trial and “thoughts concerning consolidations.”
- Defendants moved to disqualify the judge in Calloway; the trial court denied the motion and defendants petitioned this Court for prohibition.
- After the petition was filed here, defendants moved to disqualify the judge in 15 other Engle-progeny cases; the trial court summarily denied motions in 12 cases and later granted disqualification in 3 cases (where Hammer was counsel of record).
- While the Calloway petition was pending on appeal, the trial judge sua sponte disqualified himself in Calloway, named a successor judge, and set a trial date—actions taken while this Court had issued an order to show cause.
- Plaintiffs/respondents opposed prohibition; this Court granted the petition as to the 12 cases whose disqualification motions were denied, finding the limited disclosure plus subsequent judge actions created an appearance of partiality that could not be deemed harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an ex parte communication requires disqualification | The brief disclosed conversation was minor and compliant with disclosure rules; no actual prejudice | The ex parte communication on consolidation (a hot-button Engle issue) created a reasonable fear of partiality warranting disqualification | Ex parte communications can require recusal; here the disclosure lacked detail and, combined with subsequent judge actions, required disqualification |
| Whether judge’s sua sponte recusal during appellate stay was proper | The judge properly removed himself and managed the case calendar | The judge acted while this Court’s order to show cause and attempted to control successor assignment and trial timing, creating impropriety | The judge’s voluntary disqualification while appellate review was pending and his attempt to pick successor and schedule trial undermined impartiality |
| Whether motions denied in 12 cases should stand given grants in 3 similar cases | Denials were appropriate where Hammer was not counsel of record; grants in other cases reflect case-specific facts | The inconsistent rulings, coming after the same disclosure and timing, created suspicion of unfairness across the docket | Given unique facts and timing, the denials in the 12 cases were overturned; appearance of impropriety permeated proceedings |
| Standard for sufficiency of disqualification motion based on ex parte contact | Disclosure and context showed no substantive contact affecting rulings | Even a brief ex parte contact may suffice if it creates objectively reasonable fear of bias; must show impartiality not beyond question | Motion legally sufficient here because the combination of the ex parte contact and subsequent judge conduct made harmlessness indeterminable |
Key Cases Cited
- Engle v. Liggett Grp., 945 So. 2d 1246 (background on Engle-progeny litigation)
- Gregory v. State, 118 So. 3d 770 (de novo review; objective-reasonableness standard for disqualification)
- Rodriguez v. State, 919 So. 2d 1252 (objective standard for fear of partiality)
- Pearson v. Pearson, 870 So. 2d 248 (ex parte communication can be legally sufficient for recusal)
- Robbins v. Robbins, 742 So. 2d 395 (same)
- Rose v. State, 601 So. 2d 1181 (judge’s impartiality must be beyond question)
- Rollins v. Baker, 683 So. 2d 1138 (ex parte communications and appearance of bias)
- Hanson v. Hanson, 678 So. 2d 522 (appearance of impropriety warrants reversal)
- Brake v. Murphy, 693 So. 2d 663 (short ex parte contacts can warrant disqualification when followed by questionable orders)
- Nassetta v. Kaplan, 557 So. 2d 919 (ex parte contact alone not per se grounds; motion must allege specifics and prejudice)
- Patton v. State, 784 So. 2d 380 (ex parte allegations must evidence prejudice)
- Albert v. Rogers, 57 So. 3d 233 (orders based on communications outside the record require reversal)
- Wilson v. Armstrong, 686 So. 2d 647 (same principle regarding ex parte communications)