| [1] | SUPREME COURT OF FLORIDA |
| [2] | |
| [3] | 1939.FL.40847 <http://www.versuslaw.com>; 194
So. 613, 141 Fla. 516 |
| [4] | September 26, 1939 |
| [5] | STATE EX REL. THOMAS E. DAVIS v. L. L. PARKS, AS ONE OF THE JUDGES OF THE CIRCUIT COURT OF HILLSBOROUGH COUNTY, FLORIDA |
| [6] | A Case of Original Jurisdiction -- Prohibition. |
| [7] | E. V. Whitaker, W. B. Dickenson and W. B. Dickenson, Jr., for
Relator; |
| [8] | Ray C. Brown, Chester H. Ferguson, McKay, Macfarlane, Jackson &
Ramsey, for Respondent. |
| [9] | Terrell, C.j., Whitfield, Buford and Chapman, J.j., concur; Thomas,
J., dissents; Justice Brown not participating as authorized by Section
4687, Compiled General Laws of 1927, and Rule 21-a of the Rules of this
Court. |
| [10] | Author: Terrell |
| [11] | TERRELL, C.J. |
| [12] | On petition of relator, a rule nisi in prohibition was issued from
this Court directed to respondent commanding him to desist from exercising
further jurisdiction in a certain cause pending in the Circuit Court of
Hillsborough County wherein relator was the plaintiff and Karl B. Cuesta
was defendant. The petition and supporting affidavits were predicated on
prejudice of the trial judge to both relator and his
counsel. |
| [13] | A return to the rule nisi challenges the sufficiency of the affidavit
of disqualification. The affidavit and suggestion of disqualification were
made under Section 4341, Compiled General Laws of 1927, which requires
that every such affidavit shall state the facts and the reasons for the
belief that such bias or prejudice as is relied on exists. The
suggestion of disqualification is supported by the affidavit of relator
alleging prejudice against him on the part of respondent. It is also
supported by the answer of respondent to the rule nisi in the case of
State ex rel. Nuccio v. Parks, decided more than ten years
ago, wherein it is contended that he admitted prejudice against relator's
counsel. The petition is also supported by affidavits of Alice Maree
Sumner, John C. Summer, Thomas E. Davis, B. B. Poston, and W. B.
Dickenson, attesting the continuing prejudice of respondent to relator's
counsel and to relator. |
| [14] | Section 4341, Compiled General Laws of 1927, does not in terms
disqualify a trial judge for prejudice to a litigant's counsel but the
contention of counsel for relator in this case is that the litigation at
bar in which respondent is charged with being disqualified is a damage
suit in which he (relator's counsel) has a contingent fee and being so, he
is not only counsel but is in effect a party to the cause making the
disqualification statute apply to him. |
| [15] | Section 4341, Compiled General Laws of 1927, the disqualifying
statute, does not require an unqualified statement of prejudice. If the
facts attested evidence a fear of such prejudice as will endanger his
securing a fair trial that is sufficient. Such a fear rests in the mind of
the litigant and if the attested facts supporting the suggestion are
reasonably sufficient to create such a fear, it is not for the trial judge
to say that it is not there. |
| [16] | Prejudice to a lawyer would not necessarily extend to his client.
Under the disqualifying statute, the prejudice to disqualify must be shown
to the client but we would hesitate to say that prejudice to the lawyer
could not be of such a degree as to adversely affect his client. The
suggestion and the affidavits in this case evidence a situation that has
not appeared in this Court before. They show that
on three former occasions, respondent has been disqualified by counsel for
relator in important litigation. If the affidavits may be taken at face
value, it is perfectly apparent why relator "fears" that he would not have
a fair trial at the hands of respondent. |
| [17] | To defeat the contention of relator, counsel for respondent relies on
the insufficiency of the affidavits to meet the requirements of Section
4341, Compiled General Laws of 1927. Limited to the technical content of
the affidavits, this view could be upheld and supported, but that is not
the measure by which they should be evaluated. If taken as a whole, the
suggestion and supporting affidavits are sufficient to warrant fear on the
part of relator that he will not receive a fair trial at the hands of
respondent, they are sufficient. |
| [18] | Courts, Legislatures, football squads and baseball nines as well as
other deliberative and non-deliberative bodies must be guided by rules
technical to each in the dispatch fo their business. Regardless of where
applied, the rule of the game must make for the orderly administration of
right and justice; otherwise pandemonium supplants system and dispatch.
The rule must be construed, however, with order and justice in view and
should not be employed to perpetuate a prejudice, to justify pride of
opinion or to attach a value to unusual complexes that result in defeating
its purpose. |
| [19] | This Court is committed to the doctrine that every litigant is
entitled to nothing less than the cold neutrality of an impartial judge.
It is the duty of courts to scrupulously guard this right and to refrain
from attempting to exercise jurisdiction in any matter where his
qualification to do so is seriously brought in question. The exercise of
any other policy tends to discredit the judiciary and shadow the
administration of justice. It
is not enough for a judge to assert that he is free from prejudice. His
mien and the reflex from his court room speak louder than he can declaim
on this point. It he fails through these avenues to reflect justice and
square dealing, his usefulness is destroyed. The attitude of the judge and
the atmosphere of the court room should indeed be such that no matter what
charge is lodged against a litigant or what cause he is called on to
litigate, he can approach the bar with every assurance that he is in a
forum where the judicial ermine is everything that it typifies -- purity
and justice. The guaranty of a fair and impartial trial can mean nothing
less than this. |
| [20] | To force relator to trial in face of the fear that the suggestion for
disqualification warrants would be to impose on him a condition contrary
to every principle devised for the administration of justice under our
system of jurisprudence. There may, in reality, be little basis for his
fear but if it's there, the renunciation of the trial judge won't efface
it. There is no reason why he should not, and every reason why he should,
excuse himself under the circumstances. |
| [21] | The administration of justice is the most sacred rite known to the
social order of a democracy. The duty of performing that rite is laid on
the bench and bar. No greater commission was ever handed a profession but
the same power that gave it can and will withdraw it if we prostitute it.
We can save our commission for posterity by thinking in terms of justice
but we cannot save it by exalting the personal equation. |
| [22] | It follows that the writ of prohibition as prayed for must be and is
hereby granted. |
| [23] | It is so ordered. |
| [24] | THOMAS, J. (dissenting). |
| [25] | I agree whole-heartedly with the observations of the learned Chief
Justice on the importance of fair trials by impartial judges but I feel
that the relator has completely failed to comply with the rules which the
Legislature has prescribed to disqualify judges on the ground of
prejudice; therefore, I dissent. |