IN RE ESTATE OF CARLTON

PER CURIAM.

Petitioners have requested the disqualification of Justice Overton from participation in the decision on rehearing in this case, based on sections 38.02 and 38.10, Florida Statutes (1977), and Canon 3C(1) of Florida's Code of Judicial Conduct.

This Court's procedural treatment of requests for disqualification has not always been consistent. In two cases the non-challenged members of the Court ruled on the legal sufficiency of the request. Ervin v. Collins, 85 So.2d 833 (Fla. 1956); Ball v. Yates, 158 Fla. 521, 29 So.2d 729, cert. denied, 322 U.S. 774, 68 S.Ct. 66, 92 L.Ed. 359 (1947). More recent cases, however, have left the determination of disqualification to the discretion of the justice sought to be disqualified. Daytona Beach Racing Recreational Facilities District v. Volusia County, 372 So.2d 417 (Fla. 1978); Department of Revenue v. Golder, 322 So.2d 1 (Fla. 1975); Department of Revenue v. Leadership Housing, Inc., 322 So.2d 7 (Fla. 1975), cert. denied, 434 U.S. 805, 98 S.Ct. 35, 54 L.Ed.2d 63 (1977).

Without expressing any opinion as to the overall legal sufficiency of the petitioners' request, their reliance on sections 38.02 and 38.10 is misplaced. These provisions, as framed, apply only to trial judges and not appellate judges. See Department of Revenue v. Golder, 322 So.2d 1, 4 n. 15 (Fla. 1975) ("Florida's disqualification statutes are not involved in this proceeding in any way."). Moreover, the statutes include no evidence of any legislative intent to the contrary. Cf. 28 U.S.C. § 455 (1976) (revised in 1948 so as to extend to United States justices as well as judges).

After due consideration, we now recede from Ervin and Ball and hold that each justice must determine for himself both the legal sufficiency of a request seeking his disqualification and the propriety of withdrawing in any particular circumstances. This procedure is in accord with the great weight of authority, and it reenforces the modern view of disqualification as a matter which is "personal and discretionary with individual members of the judiciary. . . ." Department of Revenue v. Leadership Housing, Inc., 322 So.2d 7, 9 (Fla. 1975).

Petitioners' request for disqualification will be submitted to Justice Overton for his decision.

ENGLAND, C.J., ADKINS, BOYD, SUNDBERG and McDONALD, JJ. and MELVIN, Associate Justice, concur.

OVERTON, J., not participating in per curiam.

PER CURIAM.

OVERTON, Justice.

Pursuant to sections 38.02 and 38.10, Florida Statutes (1977), and the Code of Judicial Conduct, Canon 3(C)(1), petitioners filed a suggestion that I disqualify myself or be disqualified from this cause on the grounds of my close friendship with a lawyer whose law firm had represented the respondent, the administrator of the estate in issue, but who are not attorneys of record in this cause. The knowledge of that personal friendship was known at the time of the second oral argument of this cause on April 11, 1978. The suggestion for disqualification, however, was not filed until March 27, 1979, after this Court had rendered its decision with my participation but while the matter was still pending for rehearing.

In accordance with the procedure established by this Court in Ball v. Yates, 158 Fla. 521, 29 So.2d 729 (1947), and Ervin v. Collins, 85 So.2d 833 (Fla. 1956), I submitted this suggestion for disqualification to the remaining members of this Court assigned to hear the merits of this cause without my participation and agreed to abide by their decision.

In Ball a suggestion to disqualify Justices Buford and Adams was made on the grounds that: (1) Justice Buford was friends with an attorney previously employed by the prevailing party, and (2) Justice Adams had financial dealings with a bank controlled by the prevailing party. As in the instant case, the unsuccessful party filed the suggestion after the Court's opinion was rendered and while the matter was pending on rehearing. Justices Buford and Adams voluntarily submitted the issue of disqualification to the remaining members of the Court. A special panel of the Court held that the suggestion was "in fact and in law . . . inadequate and insufficient in substance." 158 Fla. at 532, 29 So.2d at 735. The Court stated that when no disqualification is shown, the matter of voluntary recusal is for the individual justice to determine. Both justices declined to recuse themselves and participated in the denial of the petition for rehearing.

In Ervin, a suggestion to disqualify Justices Thomas, Thornal, and O'Connell was made on the grounds that: (1) Justice Thomas and Governor Collins and their families "are close, intimate, and personal friends, and have been for many years," and (2) Justices Thornal and O'Connell were appointed by Governor Collins and were "strong personal and political friend(s) of the Governor." Id. at 833. A special panel of the Supreme Court held that the allegations in the suggestion were "not legally sufficient to constitute a basis for disqualification," but instead could be considered as being addressed to the "conscience of the respective Justices against whom the suggestions are directed." Justices Thomas, Thornal, and O'Connell declined to recuse themselves in the cause and participated on the merits. See Ervin v. Collins, 85 So.2d 852 (Fla. 1956).

Upon my submission of this matter, the Court receded from the procedure of Ball and Ervin and expressly found that sections 38.02 and 38.10, Florida Statutes (1977), were not applicable to appellate judges or justices. The Court stated it is a matter which is personal and discretionary with the individual judge or justice and thus resubmitted the matter to me for my determination.

The suggestion that a judge or justice disqualify himself presents a sensitive and difficult problem because the issue concerns the integrity of the Court and the resulting credibility of the judicial system as a whole. The instant case poses an even greater problem because the suggestion for disqualification was made eleven months after the petitioners had knowledge of the alleged grounds for disqualification and after the decision of the Court was rendered for a second time.

In reaching my determination, two questions must be considered: (1) whether the suggestion was timely filed, and (2) even if timely filed, whether the asserted circumstances of personal friendship are sufficient to require disqualification.

For the reasons which follow, I find that this suggestion for disqualification is legally insufficient and therefore must be denied.

The suggestion for disqualification asserts that I should disqualify myself because of my "extremely close association and friendship with Benjamin A. Bittan, Jr., Esquire, a member of the law firm of Willes, Bittan, and Willes, Fort Pierce, Florida, the actual attorneys from [sic] the Respondent, Lucy Jane Carlton Rogers, although not presently her attorneys of record herein." The record reflects that Mr. Willes was the firm representative in all matters pertaining to the estate and Mrs. Rogers although he received advice from his partner, B.A. Bittan, Jr. It further reflects that B.A. Bittan was best man in Justice Overton's wedding and that a close friendship has been continually maintained. The facts asserted by petitioners also reflect (1) Raymond E. Ford, one of the counsel for petitioners, had knowledge of Justice Overton's close relationship with B.A. Bittan at a time prior to this cause being filed initially in this Court, and (2) petitioner Charles H. Carlton had knowledge of Justice Overton's close relationship with B.A. Bittan at the time of the oral argument of this cause on April 11, 1978. The Court denied certiorari on March 8, 1979, approximately eleven months after oral argument. A petition for rehearing was filed on March 21, 1979, and on March 27, 1979, this suggestion for disqualification was filed.

It is a general rule of law that a party waives any grounds for disqualification of a judge or justice when the suggestion is not filed within a reasonable period of time after having knowledge of such grounds. The purpose of this timeliness requirement is to avoid the adverse effects on the other litigant and the problems of a retrial with its resulting costs and delay. Allowing a party to request disqualification after a decision has been rendered by the Court provides a second opportunity to achieve a favorable result when the first decision is adverse, an opportunity not available to the opposing party. Because of these factors, this rule of law has been strictly enforced in situations where there is knowledge of the grounds for disqualification before a decision but the suggestion for disqualification is not filed until after the court's decision is rendered. This general rule of law is reflected in part in the following cases: Oppenheimer v. Deutchman, 270 P.2d 52 (Cal.App. 1954) (statement alleging bias and prejudice of a judge filed after rendition of judgment was filed too late to be considered); State ex rel. Rathe v. Jefferson Parish School Board, 206 La. 317, 19 So.2d 153 (1944) (a motion to recuse a supreme court justice on rehearing was untimely where the party and her counsel participated in the original hearing with knowledge of facts on which the motion to recuse was based); City of Biloxi v. Cawley, 332 So.2d 749 (Miss. 1976) (trial judge did not err in refusing to recuse himself where the motion suggesting recusal was not made until after the final decree was entered); Broad Street Corporation v. Velco Mortgage Co., 135 N.J. Eq. 581, 39 A.2d 700 (1944), aff'd, 136 N.J. Eq. 513, 42 A.2d 704 (1945) (objections to the trial judge were not timely where they were not made until after the judge had rendered his decision); State v. Cline, 69 N.M. 305, 366 P.2d 441 (1961) (affidavit of disqualification was not timely filed when made after the district judge had judicially rejected requests made by a defendant in a criminal case).

In our own state, sections 38.02 and 38.10, Florida Statutes (1977), pertaining to the disqualification of trial judges, codify this general rule of law. Section 38.02 requires that a suggestion for disqualification must be filed not more than thirty days after the plaintiff's attorney has learned of such grounds of disqualification. Section 38.10 requires that the affidavit of disqualification be filed not less than ten days before the beginning of the term of court. In Data Lease Financial Corporation v. Blackhawk Heating Pacific Co., Inc., 325 So.2d 475 (Fla. 4th DCA 1975), the district court held under the authority of section 38.10 that a motion to disqualify was not timely filed where the plaintiff had waited until after an unfavorable ruling to request the trial judge's recusal.

Given the clear authority of this general rule of law, I find this request for disqualification was waived by the petitioners' delay in submitting the suggestion until after this Court ruled on the cause.

Even assuming the suggestion was timely filed, it appears clear that friendship with a lawyer whose law firm represents one of the parties but is not counsel of record in the cause does not in and of itself require disqualification of a judge or justice.

In Ervin v. Collins and Ball v. Yates, this Court held that personal friendship with an attorney or a party to the cause, or an attorney who had represented a party, was not sufficient to constitute a legal basis for disqualification.

Canon 3(C)(1) of the Code of Judicial Conduct, adopted in 1973, pertains to the disqualification of a judge and states in part: "A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned." In interpreting this provision, opinions rendered by judicial conduct committees have concluded that, absent some special circumstance, friendly relationships between judges and attorneys do not of themselves require disqualification.

The Committee on the Code of Judicial Conduct for United States Judges, in advisory opinion 11, had presented to it a situation where an attorney was a long-time friend of the judge and godfather of one of the judge's children. The judge asked the committee whether he should disqualify himself from cases where a party is represented by a member of this attorney's firm. The committee answered as follows:

The question regarding members or associates of the firm of the friend and godfather poses no problem. It cannot be that firms are precluded from practice before judges simply because members have judges for friends. Here again there may be special circumstances dictating disqualification, but a friendly relationship is not sufficient reason in itself.

In a related matter, Florida's Committee on Standards of Conduct Governing Judges, in its opinion 76-12, stated that a judge need not disqualify himself from cases of a law firm which employs the judge's son as a nonlegal employee in a nonlawyer, nondiscretionary position.

If friendship alone with a lawyer or member of a firm is a basis for disqualification, then most judges in rural and semi-rural areas and many in metropolitan areas would be subject to disqualification in a large number of cases.

In the instant case, one of the attorneys of record for the petitioners is a former justice of this Court and has personal friendships among the present members of this Court. That situation alone does not require members of this Court to disqualify themselves when his law firm brings matters before this Court for decision. The instant case is in fact more remote since the lawyer is neither counsel of record in the cause or the principle lawyer representing the party in other legal matters. I conclude that my disqualification is not required by either the law or the canons for judicial conduct.

Even though a suggestion for disqualification is legally insufficient, a judge may still voluntarily recuse himself if he believes it would be in the best interests for the administration of justice. Voluntary recusation has limited availability when, as in the instant case, disqualification is requested by an unsuccessful litigant after a judge or justice has participated in the decision adverse to the requesting party. To do so would adversely and unjustly affect the successful party in the cause. Voluntary recusation after the rendition of judgment would be justifiable only when the judge or justice honestly believes he or she can no longer fairly and impartially rule on the cause.

I believe that I can continue to properly consider the issues in this cause fairly and impartially, and, consequently, I have a duty not to recuse myself. To do otherwise would set a dangerous precedent.

Upon consideration of the Petition for Rehearing filed by attorneys for petitioners, and reply thereto,

IT IS ORDERED by the Court that said petition be and the same is hereby denied.

ENGLAND, C.J., and OVERTON, SUNDBERG and McDONALD, JJ., concur.

ADKINS and BOYD, JJ. and MELVIN, Associate Justice, dissent.