State, Ex Rel. v. Atkinson , 116 Fla. 366 ( 1934 )

By a petition for rehearing filed by relators, it is suggested that the Court has overlooked certain material considerations that should result in a different conclusion from that reached by this Court in its opinion herein filed August 6th, 1934, wherein we held that the motion of relators for a peremptory writ of mandamus should be denied and the present proceeding dismissed.

Relators assert that the real question, and the only question, presented for our decision in this instance is whether or not a circuit judge should be permitted to inconvenience and embarrass litigants, and delay the administration of justice, by transferring a cause from the division over which be presides to another division of the same court after two full days of hearings in said cause, and after full argument of counsel, when there are no grounds, or just cause, for the judge's disqualification?

At the outset of this discussion of relators' petition for a rehearing, it would not be amiss to point out that in our first consideration of this matter, we did not consider that any such question as that just stated, was required to be decided in the present litigation. The alternative writ of mandamus neither alleges in positive terms, nor shows by any fair inference from what is alleged, that the respondent circuit judge's refusal to make a ruling in the chancery cause in which he has refused to further act, is calculated or intended to embarrass the realtors, or to work any undue inconvenience to them. Nor is it shown by the writ that any such undue delay in the administration of justice will be the result, as would require the Supreme Court, in the exercise of its superogatory powers over a subordinate tribunal, to deal with the respondent judge as a defaulter in the performance of his inescapable judicial duties, by issuing a peremptory writ of mandamus against him to require him to rule in a case wherein he has indicated that there are reasons personal to himself which suggest his recusation in order to avoid the likelihood of that unseemly controversy, which is always present, when formal proceedings to disqualify judges on the ground of prejudice are filed against them by litigants, whether well founded or not in law or fact.

The Supreme Court of the United States has pointed out that occasions sometimes occur where, although the particular judge called upon to decide a matter is not legally disqualified to act, he may, without flinching from his duty in the premises, properly ask that one of his fellow judges, equally qualified to act, take his place and preside in his stead, where there are circumstances surrounding his sitting in the case, that suggest the judge's retirement in order to avoid an attack upon the judge as being biased or prejudiced in the event he should act. Cooke v. United States, 267 U.S. 517, 45 Sup. Ct. 390, 69 L.Ed. 767. The noteworthy exception to this rule, which we approve in this jurisdiction, is that even though embarrassment or unseemly criticism may ensue should the judge act, no judge should retire from a case (unless actually disqualified) where the judge is apprised of any attempt to drive him out of the case for ulterior purposes, such as delay, etc. See Cooke v. United States, supra.

The right to the extraordinary writ of mandamus in cases where it is sought to coerce public officials in the performance of their public duties must be grounded upon something more than a mere duty on the part of the respondent officer. The relator must have a clear legal right to the enforcement of the officer's duty. And there must exist no plain, complete and adequate method of redress other than mandamus directed to the delinquent officer. Davis, Attorney General, v. Crawford, 95 Fla. 438, 116 Sou. Rep. 41.

On the first consideration of this case this Court did, not hold that the respondent Judge Atkinson was actually bound by the agreement alleged to have been made by him to the effect that he would habitually decline to act in any case wherein the First National Bank of Miami should happen to be a party. Nor do we consider that agreement as having any future efficacy, force or effect whatsoever as either a legal or a moral obligation on the part of the judge who is said to have made it. On the contrary, the precis of our holding is simply this: that a litigant in a county having more than one available resident circuit judge qualified to act in a chancery case, is not entitled to mandamus to compel a particular judge to decide his case, even where there is a duty on the part of the respondent circuit judge to retain jurisdiction and make his decision after having once assumed control of the cause by entering upon a hearing of it, in the absence of some showing of special inconvenience or embarrassment to the relator, other than the mere necessity of representing the case before another judge equally available and qualified to hear it — the requirement, in mandamus being that relator must show a real necessity for the writ to issue, in order to prevent the deprivation of some legal right of his that would otherwise be lost to him if the writ were denied.

All that relator can lose in the present controversy is the benefit of a ruling by Judge Atkinson instead of some other judge of equal jurisdiction to whom Judge Atkinson has indicated his desire and willingness to refer it for reasons personal to himself. We must presume that the respondent Circuit Judge is acting in good faith in taking the position that he does, as disclosed by his return to the alternative writ; that his refusal to retain his jurisdiction to rule in the case in which relator is a party at interest, is neither arbitrary, capricious, nor purpose of hindering, embarrassing or delaying the administration of justice in the consideration of the matters in issue in the pending cause. Furthermore, and in addition to all that has been said, we have held that, as the senior judge of the Eleventh Judicial Circuit of Florida, Judge Atkinson has the constitutional right under Section 43 of Article V of the Constitution, irrespective of any local rule of court, to make an assignment of the pending case to any other judge of the same circuit qualified to act. This, it appears, he has indicated his intention of doing as a means of affording relators an appropriate hearing. Rules of court providing for an orderly division of the work amongst several judges of one and the same circuit, must be construed and applied in the light of the Constitution, which in effect makes the senior Circuit Judge of a circuit having more than one judge, the controlling and directing head of the Circuit Court of that circuit.

As we have had occasion to heretofore decide, there is but one Circuit Court in Dade County, although there are several individual judges thereof. Each is qualified to sit as judge of the Circuit Court and to entertain jurisdiction in particular causes when the papers therein are assigned to him pursuant to rule or dominant authority, and are actually before the judge when he assumes to act. State v. Freeland, 103 Fla. 663, 138 Sou. Rep. 27. The course pursued by Judge Atkinson, the respondent in this case, does not appear to unduly burden, defeat or delay a decision of realtor's case by the Circuit Court of Dade County. Such right to a reasonably prompt decision is the only absolute and unqualified right realtors have shown themselves entitled to have accorded to them with respect to the pending legislation that gave rise to this mandamus proceeding.

We feel impelled to adhere to our former conclusion and deny the petition for rehearing.

WHITFIELD, ELLIS, TERRELL, BROWN and BUFORD, J. J., concur.