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Bob Carroll
Bob Carroll
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Trial Judge Must Honor Commitment To Withdraw

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A trial judge must sometimes withdraw from presiding over a legal matter. There are times when his withdrawal (called a recusal) is mandated by the facts, and there are times when he must deliver on his promise to do so.

A very recent appellate decision in Florida in a wrongful death lawsuit against a nursing home tells of a trial judge who voluntary disclosed that he was personally acquainted with the nursing home administrator and two physicians who were expected to testify at trial. These facts alone did not require the disqualification of the judge. But, after making the voluntary disclosure and inviting the Plaintiff’s counsel to make a motion for disqualification and suggesting that the motion would be granted, the trial judge should not have then denied the motion when it was received.

Excerpts from the full legal opinion:

THOMAS L. STEVENS, as Personal Representative of the Estate of Virginia L. Bleecker, deceased, Petitioner, v. AMERICANA HEALTHCARE CORPORATION OF NAPLES; MANOR CARE HEALTH SERVICES, INC.; MANOR CARE OF AMERICA, INC.; and MANOR CARE, INC., Respondents. 2nd District. Case No. 2D05-5731. Opinion filed February 8, 2006.

At the hearing, the trial judge disclosed to counsel for the parties that he was personally acquainted with three of the witnesses who were expected to testify at trial. One of the potential witnesses was a nursing home administrator; the other two were physicians. The trial judge said that he was “very good friends” with Dr. Mehta, one of the physicians. Dr. Mehta had been Mrs. Bleecker’s treating physician. The trial judge also said that he knew the nursing home administrator not only because of her employment at the nursing home but also through her service on the local school board. Upon making these disclosures, the trial judge said: “So if that’ll make any difference to anybody here, I wanted to reveal that.”

the trial judge’s remarks in this case did not end with his voluntary disclosure of acquaintance or friendship with the three potential witnesses. Instead, the trial judge continued the discussion by inviting counsel for Petitioner to file a motion for disqualification. The trial judge then expanded his remarks by advising counsel about what the judge planned to do if the motion was filed. The trial judge declared his intention to write an “Order of Recusal” and ask the chief judge of the circuit to consider assigning a senior judge from Fort Myers to hear the matter. Undoubtedly, the trial judge’s remarks would have caused any reasonable person to conclude that the judge intended to grant a timely motion for disqualification if Petitioner’s counsel filed such a motion after he had an opportunity to consult with his client.

The trial judge should have granted the motion for disqualification that it solicited and then offered to grant.

We hold only that where, as in this case, a judge makes such a disclosure, invites the parties to make a motion for disqualification, and suggests that the motion will be granted, the judge cannot thereafter properly deny a timely motion for disqualification based on the facts disclosed. In short, a judge should not offer to recuse himself or herself based on a voluntary disclosure of information relevant to the question of disqualification unless the judge means it.