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Wednesday, July 27, 2022

As Published in the Daily Business Review: Ex Parte Communications With the Judge - What Attorneys Need to Know

By: Esther E. Galicia | July 27, 2022
As published in the Daily Business Review

 

Attorneys must make sure that any ex parte contacts and communications with a judge concerning administrative matters in no way venture into the merits of the case. Otherwise, the judge will be subject to disqualification, as the Third District made crystal clear in Menada v. Arevalo, Case Nos. 3D21-0773, 3D21-945, 47 Fla. L. Weekly D1400 (Fla. 3d DCA June 29, 2022).

The Menada decision involved a wrongful death action where the original judge was transferred to the family court division after presiding over the case for two years. At the time, the defendant had a pending motion for clarification as to an order the original judge entered before being reassigned.

A few months after the successor judge was presiding, the original judge’s judicial assistant contacted defense counsel to schedule a hearing on the defendant’s motion for clarification. Defense counsel objected because the case was before the successor judge who was hearing all matters regarding the case.

“The judicial assistant responded that ‘she had been notified that the parties had requested that [the prior judge] reassert his jurisdiction of the case.’” The assistant’s response triggered the defendant’s first motion for disqualification, which alleged that the original judge had engaged in improper ex parte communication with plaintiffs counsel and that defendant was “‘never privy to any request or communication regarding any attempt to bring this action back before a judge now serving in the Family Division.’”

The original judge denied the motion for disqualification and proceeded to hear the defendant’s motion for clarification later that day.

On appeal, the plaintiff argued that the alleged ex parte communication only concerned the scheduling of a hearing. The Third District disagreed, stating “the simple scheduling of a hearing is not what happened here.”

Required to accept the facts in defendant’s disqualification motion as true, the Third District concluded that the plaintiff’s ex parte contact “went beyond the administrative scheduling of a hearing and ventured into merits-based communication concerning the [original] judge’s retention” of the case. Id. While the original judge could have possibly retained the case, the Third District pointed out there was no evidence that the plaintiff had obtained the required approval of the administrative judges or that any of the exceptions to that requirement applied.

As a result, the Third District held that the original judge’s disqualification was necessary because the defendant could have “an objectively reasonable, well-grounded fear of not receiving a fair and impartial trial.’”

To make matters worse, the original judge also improperly commented on the merits of the first motion for disqualification during the hearing on the defendant’s motion for clarification. The defendant accordingly moved a second time to disqualify the original judge.

The original judge denied that motion one day after the Third District issued an order to show cause (regarding the denial of the first disqualification motion) which stayed the trial court proceedings. The Third District quashed the order denying the second motion for disqualification because the original judge lacked jurisdiction and the order was thus a nullity.

Esther E. Galicia is a shareholder in Fowler White’s appellate practice group where she focuses her practice in civil appeals at all levels and provides litigation and trial support. She received her J.D., cum laude, from the University of Miami School of Law.


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