No Hugs for Judges

The Florida Supreme Court granted a petition for prohibition regarding a constitutional (Circuit) judge presiding over the proceedings regarding a criminal defendant. This is nothing to do with workers' compensation directly, but the implications are as pertinent to any judge governed by a Code of Judicial Conduct as Florida judges of compensation claims are. 

This April 13, 2023 decision in Tundidor v. State, SC2022-1732 is an interesting read as regards judicial compassion and the appearance of impropriety. Essentially, Mr. Tundidor finds himself convicted and under "sentence of death." He has some "postconviction proceedings" pending and coincidentally his case is assigned to the same judge that presided over the sentencing of the young man that massacred many students at a Parkland high school on Valentine's Day 2018. 

Mr. Tundidor sought disqualification of the trial judge on the basis of "the appearance of impropriety and actual bias.” His foundation was the judge's interaction associated with persons involved in the Parkland case. He contends that the judge has been "accused of conduct . . . viewed as exhibiting bias against the defense." He cites reporting of such perceptions "in local, national, and international press, and streamed live on social media." 

The specifics include allegedly "heated exchanges with (the) defense team" in the Parkland matter. Further, that 

"immediately after sentencing" the shooter, the judge "left the bench and, while still in her judicial robe, exchanged hugs with the victims’ families and  members of the prosecution team."

Mr. Tundidor noted that one of the hug recipients "was Assistant State Attorney Steven Klinger." He notes this is pertinent because this particular hug recipient "is also the prosecutor in Tundidor’s case." Further, he alleges that "while off the record at a status hearing" in Mr. Tundidor's case days later, the judge "'sympathetically' asked ASA Klinger how he was doing." That allegedly devolved into a discussion of the emotional state of Mr. Klinger which Tundidor associated with Parkland, though that case was not mentioned. 

Mr. Tundidor concluded that he, therefore, had an "objectively reasonable fear . . . that he would not receive a fair hearing before" the judge. He alleges the behavior (hugging) and comments "raises the appearance of impropriety" and perhaps also demonstrates "actual bias in favor of the State." The hugging and recounted conversation, he claims, shows the judge "shares a special relationship with the prosecutor and bias in favor of the State."

The trial judge denied the motion to disqualify, finding the allegations "legally insufficient." Mr. Tundidor sought review by the Florida Supreme Court by writ of prohibition (one of the original jurisdiction writs for immediate review). See Writ Protection as Opposed to Appeal, (July 2017). 

The Court reminded that Florida Rule of General Practice and Judicial Administration 2.330 sets forth the grounds for a motion to disqualify. By incorporation, that same rule applies to judges of compensation claims, see Rule 60Q6.126. It explained that 

“The standard for determining the legal sufficiency of a motion to disqualify is whether the facts alleged, which must be assumed to be true, ‘would place a reasonably prudent person in fear of not receiving a fair and impartial trial.’ ” (citation omitted).

And, it reminded that under the Code, “Actual bias or prejudice need not be shown, rather it is the appearance of bias or prejudice which requires disqualification.” While subjective conclusions or premonition may form some foundation, they are not alone sufficient to justify disqualification. In order to reach that standard, "the fear must be objectively reasonable.” 

The Supreme Court concluded that "the combination of certain circumstances" and the allegation of demonstrating "a sympathy with the State that was linked to the outcome of another capital case" were sufficient to "create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial proceeding." In support of this conclusion, the Court specifically noted the hugging of ASA Klinger in the courtroom while in robes, and the commiserating two days later in the off-the-record conversation in a hearing related to Mr. Tundidor. 

The Court found the petition legally sufficient and it was granted. 

There are important reminders for all judges in this outcome. First, being "off the record" presents challenges. What Mr. Tundidor heard is what he heard, but there are times in which perception, hearing, and recollection do not necessarily match the record. But here, there is no record to which his allegations and recollections can be compared. I persistently counsel judges to be on the record in such interactions. 

Second, the sympathy or commiseration is not the key to the Court's decision here. Rather, "the appearance of impropriety" alone may be sufficient. In the role of adjudicator, it is seldom appropriate to interact socially with any party. That said, in the emotion of a tragedy such as Parkland, there is perhaps an irresistible urge to comfort the victims and survivors. That said, exhibiting those human emotions in a public setting, particularly while enrobed, might certainly appear to some as a bias in favor of those victims and thus the state that is prosecuting them.

Third, in any adjudicatory process, there is some probability that judges and various lawyers will see each other on a repetitive basis. It is not appropriate to discuss a case with one party (or her/his/its) counsel unless all parties to that case are present (ex parte), or were at least provided notice of the proceeding. Many times, a party or judge may refer to some other proceeding during a hearing that involves some coincidence of counsel. This is ill-advised. 

When a party or attorney in case "A" perceives that the judge and opposing counsel are discussing another case inappropriately, case "B," that attorney or party may validly wonder if the judge and counsel discuss case "A" similarly, and without them when proceedings occur in case "B." Discussing cases in such an informal and ex parte manner is troubling. The practice leads to speculation, and speculation to doubt, distrust, and "appearances."

The Court's opinion is brief, but informative in its reminders of the challenges of avoiding the appearance of impropriety. At the end of the day, it is best to refrain from hugs, social interaction, and frankly small talk in general. While that is troublesome in its own right, it is likely the best advice for avoiding misunderstanding and misconception. An injured worker once complained to me that the assigned JCC and both attorneys were obviously familiar with each other. He was troubled that the judge praised and complimented both attorneys. 

One should be able to praise and compliment. But, in the eyes of some that is upsetting and troubling. Thus, the subjectivity of "appearance" is revealed, as is the challenge of its avoidance. Would disqualification be in order in the instance of complimenting all counsel in a case? I think the "objective standard" described by the Court says no in most instances. That said, it nonetheless is a case-by-case analysis of exactly what was said, to whom, and when. As nice as it is to be complimentary, a complaint may still arise. 

By Judge David Langham

Courtesy of Florida Workers' Comp

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