Thompson v. Florida Bar et al

Filing 57

ORDER denying 5 Motion to Disqualify Judge. Signed by Judge Marcia G. Cooke on 11/19/08. (tm)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 08-22603-CIV-COOKE/BANDSTRA JOHN B. THOMPSON, Plaintiff, v. THE FLORIDA BAR, et al., Defendants. _______________________________/ ORDER DENYING PLAINTIFF'S VERIFIED MOTION TO DISQUALIFY ALL FLORIDA BAR MEMBER JUDGES FROM PRESIDING OVER THIS CASE This matter is before me on Plaintiff's Verified Motion to Disqualify all Florida Bar Member Judges from Presiding Over this Case [D.E. 5]. Plaintiff argues that all judges who are members of The Florida Bar must recuse from this case because of the mere appearance of a lack of impartiality and because of a financial interest in the outcome of the case. Plaintiff further argues that any sizable verdict against The Florida Bar will potentially require a special assessment against members. Title 28 U.S.C. § 455 governs the standards for recusal by members of the federal judiciary. Section 455(a) requires that a judge disqualify herself "in any proceeding in which [her] impartiality might reasonably be questioned." Section 455(b)(4) requires that a judge recuse herself if she knows that she or her spouse "has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding." 28 U.S.C. § 455(b)(4). Financial interest is defined as "ownership of a legal or equitable interest, however small," but does not include certain remote interests. 28 U.S.C. § 455(d)(4).

A judge does not have to disqualify herself from a case brought against a bar association, even though she is a member of the bar association and it is alleged that the judge might have a financial interest in the outcome of the proceeding. In a separate action filed by Plaintiff against Defendant, Thompson v. The Florida Bar, 2007 WL 4380609, at *1 (S.D. Fla. Oct. 2, 2007), Plaintiff moved to recuse Judge Jordan. Judge Jordan denied the motion concluding that, even though he is a member of the Florida Bar, he did not have an interest in the lawsuit, financial or otherwise, because of such membership. Id. Similarly, I do not have an interest in this lawsuit merely because I am a member of the Florida Bar. Furthermore, the Eleventh Circuit has already determined that the mere membership in a mandatory state bar association is not a ground for disqualification from presiding over a case and that the possibility that the bar association will have to make monetary payment to a plaintiff does not fall within the definition of "financial interest" under section 455(d)(4). Parrish v. Bd. of Comm'r of Ala. State Bar, 524 F.2d 98, 104 (5th Cir. 1975).1 Other circuits have similarly held that a judge does not need to recuse from a case where a bar association is a defendant due to membership in the defendant association. See also Plechner v. Widener College, Inc., 569 F.2d 1250, 1262 (3rd Cir. 1977) (concluding that membership in the American Bar Association is not a financial interest that requires the disqualification of a judge where the association is a party); Foster v. Capshaw, 72 Fed. App'x 192, 192 (5th Cir. 2003) (concluding that a district judge's refusal to recuse was not an abuse of discretion because a district judge does not have a substantial interest in the success of a suit simply because of his identification with a defendant bar association). Accordingly, Plaintiff's Verified Motion to Disqualify All Florida Bar Member Judges from

Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

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Presiding Over this case [D.E. 5] is denied. DONE AND ORDERED in Miami, Florida, this 19th day of November 2008.

cc: Honorable Ted E. Bandstra All counsel of record John B. Thompson, pro se