Ex Parte Fact Finding By Judge Leads To Reversal

In Albert v. Rogers (4D09-4512), the Fourth District reversed "an order finding her in contempt and modifying the parties' visitation schedule with the children." What I found interesting is the Court's discussion about the trial court's independent fact finding mission. After a discussion of various issues and facts, the court stated:

When counsel for the mother pointed out that there appeared to have been an ex parte communication with the school, the judge explained: “I called the school to find out. … I did it to protect the children.” The mother's counsel then asked for the name of the person at the school whom the judge spoke to, but the judge replied that he “threw away the name,” explaining that the person was not the principal but was someone in the administration office.

The court addressed this communication as follows:

We first address the trial court's independent investigation of the facts of this matter, which served as the linchpin of the court's evaluation of the evidence. The judge's investigation constituted a fundamental denial of due process.

With limited exceptions, “[a] judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding ….” Fla. Code Jud. Conduct, Canon 3B(7). The commentary to this canon states, “A judge must not independently investigate facts in a case and must consider only the evidence presented.” As the Supreme Court of South Dakota has explained, “A judge simply cannot be both a judge and [an attorney] searching out facts favorable to [a party] without abandoning his or her judicial neutrality.” State v. McCrary, 676 N.W.2d 116, 125 (S.D. 2004). These principles were not followed in this case.

“[E]very litigant is entitled to nothing less than the cold neutrality of an impartial judge.” State ex rel. Davis v. Parks, 141 Fla. 516, 519-20, 194 So. 613, 615 (1939). Our supreme court has adhered to the principle that the courthouse is “temple of justice” where all litigants “may enter its portal with the assurance that they may controvert their differences in calm and dispassionate environment before an impartial judge and have their rights adjudicated in a fair and just manner.” Williams v. State, 143 So. 2d 484, 488 (Fla. 1962). That neutrality is destroyed when the judge himself becomes part of the fact-gathering process.

A trial judge's decision must be overturned when “the appellate court cannot determine if the trial judge's actions were harmless because the trial court's order was based on communications outside the record.” Wilson v. Armstrong, 686 So. 2d 647, 648-49 (Fla. 1st DCA 1996). We have no difficulty in this case finding that this error was harmful to the proceedings. The trial judge specifically stated that he relied upon his independent communication with the school in determining the mother's credibility. By initiating communication with the children's school administration and independently investigating the facts, the trial judge abandoned his role as a neutral arbiter of the dispute. The independent investigation served to deny the mother due process. We reverse and remand.