Petition for Writ of Certiorari — Donner v. Donner

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»Jreme Court. u.s.

98 478 SEP 1 61998

OFFICE OF THE CLERK

DOCKET NO.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1997

MIRIAM DONNER,

Petitioner,

Vv.

CHARLES DONNER,

Respondent

On Petition For Writ Of Certiorari

To the Supreme Court Of Florida

PETITION FOR WRIT OF CERTIORARI

Miriam Donner, Pro Se

P. O. Box 1232

Hallandale, Florida 33009

QUESTION PRESENTED FOR REVIEW

Where a Florida state court judgment

adverse to Petitioner was affirmed on

appeal, where one of the affirming judges,

who was essential to the quorum in the

appellate panel, negotiated for employ-

ment, and became employed, as a name mem-

ber of the opposing party's law firm, con-

temporaneous with his participation in the

appeal, where Petitioner discovered those

concealed facts only after the mandate was

issued and after the term of that court

expired and thereupon immediately filed a

motion to recall the mandate, citing those

facts as a due-process violation, did the

Florida court violate the Due Process

Clause by ruling that, because of the

expiration of its term of court, it lacked

jurisdiction to consider Petitioner's

motion to recall the mandate and her due-

process arguments on the merits?

LIST OF ALL PARTIES TO THE FLORIDA STATE

COURT PROCEEDING

Miriam Donner

Charles Donner’

* Charles Donner is deceased. With the

permission of the Florida court, the cer-

tificate of service accompanying the

motion to recall was amended to reflect

service of that motion upon the attorney

for the persons appointed as personal

representatives of the estate of Charles

Donner. Those persons are Edward, Mark,

and William Donner. However, Miriam Don-

ner's motion to substitute as parties

those persons in their appointed capaci-

ties as personal representatives of the

Charles Donner estate was denied by the

Florida court as "moot" as part of its

December 23, 1997 order denying the motion

to recall mandate. App. I-III.

il oe

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW

LIST OF ALL PARTIES TO THE FLORIDA

STATE COURT PROCEEDING

TABLE OF CITED AUTHORITIES

OPINIONS BELOW

STATEMENT OF JURISDICTION

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE

_REASONS FOR GRANTING

CERTIORARI REVIEW

' #

az.

WHERE PETITIONER DISCOVERED,

THROUGH THE EXERCISE OF DILI-

GENCE, FACTS RELATING TO JUDGE'S

DISQUALIFICATION ONLY AFTER EX-

PIRATION OF TERM OF COURT DURING

WHICH MANDATE WAS ISSUED, STATE

COURT CANNOT EVADE DETERMINATION

OF WHETHER JUDGE'S PARTICIPATION

IN DECISION CONSTITUTED DUE-PRO-

CESS VIOLATION BY INVOKING

TERM-OF-COURT RULE

DUE-PROCESS GUARANTEES BARRED

JUDGE MAGER'S PARTICIPATION IN

THE CASE CONTEMPORANEOUS WITH

HIS NEGOTIATION FOR EMPLOYMENT,

AND EMPLOYMENT, AS A NAME MEMBER

OF A LAW FIRM REPRESENTING THE

OPPOSING PARTY IN REGARD TO THAT

CASE AND OTHER CASES

iii

III. WHERE DUE-PROCESS CONCERNS DIS-

QUALIFY JUDGE WHOSE PARTICIPA-

TION WAS ESSENTIAL TO QUORUM,

HIS DELIBERATIONS AND VOTE WITH

OTHER JUDGES IN PANEL INVALIDATE

THE PANEL DECISION AS A DENIAL

DUE PROCESS 21

IV. CONCLUSION 30

APPENDIX I-XII

December 23, 1997 order of District

Court of Appeal of Florida denying

motion to recall mandate I-III

January 30, 1998 order of District

Court of Appeal of Florida denying

motions for rehearing, rehearing en

banc, and to reconstitute record IV-V

May 18, 1998 order of Florida

Supreme Court denying review VI-VII

August 9, 1977 opinion of affirmance

of District Court of Appeal of

Florida VIII

February 17, 1978 mandate of

District Court of Appeal of Florida IX-xX

June 7, 1976 judgment XI-XII

TABLE OF CITED AUTHORITIES

Cases:

Aetna Life Ins. Co. v. Lavoie,

475 U.S. 813 (1986) 19, 21, 22, 26, 30

rv. State, 486 So.2d 70

(Fla.Dist.Ct.App. 1986), rev. denied,

494 So.2d 1149 (Fla. 1987) 28, 29

Bracey v. Gray,

71 Cal.App.2d 206,

162 P.2d 314 (1945) 27

Caples v. Taliaferro,

146 Fla. 122, 200 So. 378 (1941) 24, 25

Chambers v. Nasco, Inc.,

501 U.S. 32 (1991) 18

Matter of Continental Airlines,

981 F.2d 1450 (Sth Cir. 1993) 14, 19

Donner v. Donner,

276 So.2d 516 (Fla.Dist.Ct.App. 1973) 9

Donner v. Donner,

349 So.2d 1240

(Fla.Dist.Ct.App. 1977),

cert. denied, 365 So.2d 724

(Fla. 1978) x: 4

In re Estate of Donner,

347 So.2d 436 (Fla.Dist.Ct.App. 1977) 9

In re Estate of Donner,

364 So.2d 758 (Fla.Dist.Ct.App. 1978) 9

The Florida Star v. B.J.F.,

530 So.2d 286 (Fla. 1988), after

certification, 491 U.S. 524 (1989) 1

Goodhart v. Casey, 523 Pa. 188,

565 A.2d 757 (1989) 28

Gorrill v. Whittier, 3 N.H. 265

(1825) 28

Harris v. Champion, 15 F.3d 1538

(10th Cir. 1994) 27

Hart v. Hart, 458 So.2d 815

(Fla.Dist. Ct. App. 1984) 12

Hazel-Atlas Glass Co. v.

Hartford-Empire Co.,

322 U.S. 238 (1944) 6, 17

Ladner v. .Plaza Del Prado

Condominium Ass'n, Inc.,

423 So.2d 927

(Fla.Dist.Ct.App. 1982) 12

Langer v. Kositzky,

38 N.D. 616, 166 N.W. 534

(1918) 22; 23; 24;-26

Liljebe v. Health Services

Acquisition Corp.,

486 U.S. 847 (1988) LS aes an

Louk v. Haynes, 159 W.Va. 482,

223 S.E.2d 780 (1976) 21

Marshall v. Amos,

442 P.2d 500 (Okla. 1968) 16, 26

In re Murchison,

349 U.S. 133 (1955) 20, 21

Nalle v. Austin,

22 S.W. 668 (Tex. 1893)

Nephi Irr. Co. v. Jenkins,

8 Utah 452, 32 P. 699 (1893)

Oakley v. Aspinwall,

3 N.Y. 547 (1850)

Parham v. Church Mut. Ins. Co.,

53 Ark.App. 194,

922 S.W.2d 724 (Ark.App. 1996)

Pepsico, Inc. v. McMillen,

764 F.2d 458 (7th Cir. 1985)

Regional Sales Agency, Inc. v.

Reichert,

830 P.2d 252 (Utah 1992)

Rogers v. State, 341 So.2d 196

22,

(Fla.Dist.Ct.App. 1976), cert. denied,

348 So.2d 953 (Fla. 1977)

Sands v. Wainwright, 491 F.2d 417

(Sth Cir. 1973)

Simer v. Rios,

661 F.2d 655 (7th Cir. 1981)

State ex rel. Getchel v. Bradish,

95 Wis. 205, 70 N.W. 172

(Wis. 1897)

State v. Schack, 617 So.2d 832

(Fla.Dist. Ct.App. 1993)

Stockwell v. Township Board of

White Lake,

22 Mich. 341 (1871)

vii

Walker v. Rogan,

1 Wis. 511 (1853) 25

Constitutional Provisions, Statutes,

and Rules:

U.S. Const., amend XIV, § l 2,5

Fla. Const. art. V, § 4(a) 3, 23

28 U.S.C. § 1257(a) 1

Sup. Ct. R. 11 2

Other Authorities:

48A C.J.S. Judges § 159 22, 24, 25

46 Am.Jur.2d Judges § 232 26

Annot. 29.A.L.R.5th 722 (1995) 26

viii

OPINIONS BELOW “=a

Neither the December 23, 1997 order

of the district court of appeal, to which

this petition is directed, nor the May 18,

1998 order of the Florida Supreme Court 4

denying discretionary review of that order

are published in any official or unoffi-

cial reporter. Those orders are reproduced

at App. I and VI.

The antecedent August 9, 1977 order

of the district court of appeal is report-

ed as Donner v. Donner, 349 So.2d 1240

(Fla. Dist.Ct. App. 1977), cert. denied,

365 So.2d 724 (Fla. 1978) and is repro-

duced at App. VIII.

STATEMENT OF JURISDICTION

Under 28 U.S.C. § 1257(a), jurisdic-

tion is conferred on this Court to review

by writ of certiorari the order of the

district court of appeal of Florida, deny-

ing Petitioner's motion to recall mandate.

Paraphrasing that statute, that order was

"rendered by the highest court" of the

state of Florida "in which a decision

could be had" because the Florida Supreme

Court denied discretionary review of that

order. See Florida Star v. B.J.F., 530

So.2d 286 (Fla. 1988), after certifica-

tion, 491 U.S. 524 (1989), holding, on a

question certified by the U.S. Supreme

Court to the Florida Supreme Court, that,

where, as here, a district court of appeal

order includes a reasoned opinion, the

Florida Supreme Court is vested with dis-

cretionary jurisdiction to review that

order.

Moreover, Petitioner's rights are

being “specially set up or claimed under

the (Due Process Clause of the Fourteenth

Amendment to the] Constitution."

The district court of appeal order,

with opinion, was issued on December 23,

1997. A timely motion for rehearing was

served and filed (within the required 15

days) on December 30, 1997 and that motion

was denied on January 30, 1998. Petition-

er's petition to the Florida Supreme Court

for review of that order was timely served

and filed (within the required 30 days) on

Monday, March 2, 1998, and the Florida

Supreme Court denied discretionary review

on May 18, 1998. See Sup. Ct. R. 13.1.

On August 13, 1998, Justice Kennedy

extended the deadline for filing this

petition to September 19, 1998.

CONSTITUTIONAL PROVISIONS INVOLVED

U. S. Const., amend. XIV, § 1 provides:

"No state shall make or enforce

any law which shall abridge the

privileges or immunities of cit-

izens of the United States; nor

shall any State deprive any per-

son of life, liberty, or proper-

ty without due process of law:

Fla. Const. art. V, § 4(a) provides:

"There shall be a district court

of appeal servicing each appel-

late district. Each district

court of appeal shall consist of —

at least three judges. Three

judges shall consider each case

and the concurrence of two shall

be necessary to a decision."

STATEMENT OF THE CASE

Miriam Donner sued Charles Donner in

Florida state court in 1976. The court

entered judgment in favor of Charles Don-

ner. Miriam Donner appealed that judgment

to the district court of appeal of Flori-

da. On August 9, 1977, a three-judge panel

of that court unanimously affirmed that

judgment. App. VIII. One of the judges on

that panel was Judge Gerald Mager. On Sep-

tember 15, 1977, Miriam Donner's motion

for rehearing of that affirmance was deni-

ed. In 1978, the Florida Supreme Court

denied certiorari without opinion. The

district court of appeal then issued its

mandate. Donner v. Donner, 349 So.2d 1240

(Fla.Dist.Ct.App. 1977), cert. denied, 365

So.2d 724 (Fla. 1978). In 1997, Miriam

Donner discovered for the first time that,

at least by August 15, 1977, just four

business days after that August 9, 1977

affirmance, Judge Mager was already a

"name" member of a law firm that had been

representing, and continued to represent,

Charles Donner on an ongoing basis in re-

gard to the subject matter of that case.

Upon making that discovery, Miriam Donner

immediately moved in the district court of

appeal to recall its mandate of affirmance

on several grounds. One ground, timely

raised and preserved, was that Judge Mag-

er's negotiation for employment (and his

then-employment) with that law firm con-

temporaneous with his participation in the

required quorum and in the panel decision

was a denial of due process violative of

the Due Process Clause of the Fourteenth

Amendment to the U.S. Constitution. That

ground was first articulated in the motion

to recall the mandate, as follows:

Appellant Miriam Donner

moves the Court to recall and

declare void its February 17,

1978 mandate and its August 9,

September 15, and September 21,

1977 orders on the following

grounds:

(a) One of the judges on

the panel in the appeal at bar,

(then-Chief) Judge Gerald Mager,

was rendered incompetent to par-

ticipate in the panel by virtue

of the facts that, during his

participation in the case, he

negotiated employment, and

accepted employment, with a law

firm representing Charles Donner

in regard to the subject matter

of the claim at issue in the

case;

(b) Since a panel is con-

stitutionally required to con-

sist of three judges, (then-

Chief) Judge Mager's disqual-

ification deprived the panel of

the necessary quorum;

fied (then-Chief) Judge Mager's

participation with the other two

judges on the panel in their de-

liberations and vote additional-

ly disqualified those judges;

(d) Appellant was thereby

also deprived of due process;

(e) Neither Appellee's law

firm nor (then-Chief) Judge Mag-

er disclosed the fact concerning

his employment to Miriam Donner

and she first discovered those

facts within the past 30 days."

vs The combination of those

disqualifying circumstances did

moreover deprive Appellant of

procedural due process, a viola-

tion of both the due process

Clause of the Fourteenth Amend-

ment to the U.S. Constitution

and of Article I, § 9, Florida

Constitution."

That motion also cited Hazel-Atlas

Glass Co. v. Hartford-Empire Co., 322 U.S.

238 (1944) and its holding that, where

enforcement of a judgment is "manifestly

unconscionable," the term of court rule

should not be applied.

That motion was accompanied by a cer-

tified copy of the court docket recording

—

the names of the judges, including Judge

Mager, who were on the panel and by the

affidavit of Miriam Donner verifying that

she first learned of the facts disqualify-

ing Judge Mager in September and October,

1997. That affidavit verified that in Sep-

tember, 1997, she learned that, at some

unspecified time, Judge Mager had become a

member of the law firm of Abrams, Anton,

Robbins, Resnick & Schneider. That affida-

vit verified that said firm had represent-

ed Charles Donner (albeit not of record)

in his negotiations with Miriam Donner

with regard to the claim that was the sub-

ject of the suit throughout the period

when that claim was in litigation and on

appeal. That affidavit also verified that,

upon learning of Mager's association with

that firm, she initiated a search of the

public Florida corporate filings to deter-

mine when Judge Mager joined that firm.

According to Miriam Donner's affida-

vit, as a result of that search, in Octo-

ber, 1997, she learned that, on August 30,

1977, Anton's law firm had filed with the

Secretary of State "Articles of Amend-

ment." A certified copy of that record was

included in the appendix that accompanied

the motion to recall mandate. Those Artic-

les recited that, "on the 15th day of

August, 1977," the shareholders of that

firm adopted an amendment, changing the >

name of the firm from "Abrams, Anton, Rob-

bins, Resnick and Schneider, P.A." to

"Abrams, Anton, Robbins, Resnick, Schnei-

der. and Mager, P.A." (emphasis supplied).

That filing was accompanied by an August

24, 1977 letter to the Secretary of State,

filed on August 26, 1977 (and also enclos-

ed in the appendix to the motion to recall

mandate), cross-referencing the aforemen-

tioned "Original and one copy of Articles

of Amendment of Abrams, Anton, Robbins,

Resnick and Schneider, P.A."’,°

On December 23, 1997, a panel of

judges of the district court of appeal,

different than the judges who comprised

the panel presiding in 1977, denied the

motion (App. I), stating:

* Accompanying that motion was a 1975

Martindale, Hubbell directory listing

"Donner Enterprises, Inc." as a "represen-

tative client" of that law firm. That

motion also noted that the law firm also

appeared as counsel for the interests of

Charles Donner in In re Estate of Donner,

347 So.2d 436 (Fla. Dist.Ct.App. 1977) and

In re Estate of Donner, 364 So.2d 758

(Fla.Dist.Ct.App. 1978), pending through-

out the time when the case at bar was

pending, and had previcusly appeared as

counsel for him in Donner v. Donner, 276

So.2d 516 (Fla.Dist.Ct.App. 1973).

* The appendix to that motion fur-

ther substantiated that the "Mager" whose

name was added to the "P.A." was the same

Gerald Mager who was the judge on the

district-court-of-appeal panel by includ-

ing the law firm's Martindale, Hubbell

directory listing, a certified copy of

the law firms' 1980 Corporation Annual

Report filed with the Secretary of State,

and Mager's 1978 University of Miami

Alumni Directory listing.

ae |

bs An appellate court is with-

Out jurisdiction to recall its

mandate beyond the term of court

during which the mandate was

issued. State Farm Mutual Ins.

Co. v. Judges of District Court

Of Appeal, Fifth District, 405

So.2d 980, 982 (Fla. 1981). The

Supreme court explained:

‘All things must have end, even

a district court's power to cor-

rect inconsistencies. The

reasons for this form the bed-

rock of Anglo-American juris-

prudence: 'There must be an end

of litigation. Public policy, as

well as the interests of indivi-

dual litigants, demands it, and

the rule just is indispensable

to such a consummation.' See

also, @€.g., ... Boyer v. State,

486 So.2d 70 (Fla. 4th DCA

1986).

We have considered Hazel-

Atlas Glass Co. v. Hartford-

Empire Co., 64 S.Ct. 997 (1994)

and deem it inapposite."

That order also noted in passing that

"(t]his court's file has long ago been

destroyed." However, there continues to

exist in the district-court-of-appeal file

its docket in the case at bar, showing the

names of the judges on the panel, their

rulings, and the dates thereof. Moreover,

Miriam Donner moved that court to "recon-

stitute" its record. Accompanying that

motion was a certified copy of that

court's August 9, 1977 opinion, again

showing (a) the date of the opinion, (b)

the per curiam affirmance without opinion,

and (c) Judge Mager's participation and

concurrence therein. App. VIII.

Supplementing that district-court-of-

appeal record is the trial court record

that remains extant. Among other things,

the trial-court record and transcripts

reflect that the suit was for separate

maintenance and that, over objection, (a)

after the trial judge announced his dis-

qualification, he then "“undisqualified"

himself and ruled on the merits and (b) at

a hearing noticed to hear a motion for

temporary maintenance only, the trial

court made a final ruling of dismissal,

refusing to recognize Miriam Donner's

proofs of marriage. App. XI. The effect of

that judgment was to bar her marital right

to support and her right of inheritance as

widow upon the death of Charles Donner.’

Miriam Donner filed timely motions

for rehearing and rehearing en banc of the

order denying her motion to recall the

appellate mandate. Those motions again

raised the due process issue as follows:

"... Liljeberg [v. Health Ser-

vices Acquisition Corp.], 486

‘ There were, and upon recall of the

mandate would be, several substantial

grounds for reversal., Some of the support-

ing authorities are as follows: State v.

Schack, 617 So.2d 832 (Fla.Dist.Ct. App.

1993) (judge may not reconsider his oral-

ly-announced disqualification), citing

Rogers v. State, 341 So.2d 196 ‘Fla. Dist.

Ct.App. 1976), cert. denied, 348 So.2d 953

(Fla. 1977) (same); Hart v. Hart, 458 So.

2d 815 (Fla.Dist. Ct.App. 1984) (judge may

not make final ruling at hearing on motion

for temporary relief); Ladner v. Plaza Del

Prado Condominium Ass'n, Inc., 423 So.2d

927, 929 (Fla.Dist.Ct.App. 1982) (same).

U.S. 865, n. 12,° emphasized

that its decision had 'constitu-

tional dimensions' [and was not

limited just to a construction

of § 455(a) and Rule 60(b),

quoting Aetna Life Ins. Co. v.

Lavoie, 475 U.S. 813, 825

(1986):

''The Due Process Clause ‘may

bar trial by judges who have no

actual bias and who would do

their very best to weigh the

scales of justice equally be-

tween contending parties. But to

perform its high function in the

best way, ‘justice must satisfy

the appearance of justice.'"

° In that regard, without

reference to whether Judge

Mager's failure to disqualify

himself was "inadvertent" or

knowing, that failure gives rise

to due-process concerns.

Although Appellant's motion ...

expressly adverted to the due-

process dimensions of the newly-

discovered circumstances of

Judge Mager's disqualification,

the omission from this Court's

order of any mention thereof may

suggest that the Court has over-

looked that issue. [Footnote

quoted post] None of the cases,

cited in this Court's order,

Liljeberg had also been cited and

discussed in Miriam Donner's motion to

recall mandate.

hold (contrary to- Liljeberg)

that constitutional due-process

requirement must yieid to the

(not-constitutionally-based)

'term-of-court' rule."

The footnote omitted from the above quoted

excerpt (but accompanying the quoted text)

was as follows:

? Footnote 3 at p. 10 of

Appellant's motion for recall

points out that Liljeberg's (due

process) concerns about 'main-

tain[ing] public confidence in

the judiciary' is cited in Mat-

ter of Continental Airlines, 981

F.2d 1450, 1462 (Sth Cir. 1993)

and that Continental analogously

held a judge to be disqualified

by his employment with a party's

law firm shortly after issuing

an order in the case."

Those motions for rehearing and for

rehearing en banc were denied on January

30, 1998 by the district court of appeal

without any additional opinion. App. IX.

That order also denied Petitioner's motion

® Continental had also been cited and

discussed in Petitioner's antecedent

motion to recall mandate.

to reconstitute the record.

Petitioner's ensuing petition to the

Florida Supreme Court for discretionary

review of the order denying her motion to

recall the mandate was denied. App. VI.

REASONS FOR GRANTING CERTORARI REVIEW

The Due Process issues timely raised

in this case merit certiorari review.

I. WHERE PETITIONER DISCOVERED, THROUGH

THE EXERCISE OF DILIGENCE, FACTS RELATING

TO JUDGE'S DISQUALIFICATION ONLY AFTER

EXPIRATION OF TERM OF COURT DURING WHICH

MANDATE WAS ISSUED, STATE COURT CANNOT

EVADE ISSUE OF WHETHER JUDGE'S PARTICI-

PATION IN DECISION CONSTITUTED DUE-PROCESS

VIOLATION BY INVOKING TERM-OF-COURT RULE

The district court of appeal's

threshold determination that it was with-

out jurisdiction to recall its mandate

abrogated its responsibility to confront

on the merits whether there was a denial

of due process -- and, if such a denial

were found to exist, to recall its man-

date. Where due process is violated, it

would be a further denial of due process

to hold that this violation could be pro-

cedurally insulated from correction by the

happenstance that the court's term expired

before Petitioner, through the exercise of

diligence, discovered the violation. The

Florida court's perceived jurisdictional

barrier would apply with equal force to

bar all post-term-of-court motions to

recall mandate -- even if the concealed

facts concerning the judge's disqualifi-

cation and the attendant due process

violation would, through the exercise of

diligence, have been discovered and the

motion to recall mandate filed, not 20

years later, but rather just one day after

expiration of the term of court during

which the mandate was issued. There is no

rational basis to invoke any such proce-

dural device to deny relief from a denial

of due process. See Marshall v. Amos, 442

P.2ad 500 (Okla. 1968), vacating an appel-

late decision 12 years later when judge

was discovered to have been bribed. Speci-

fically in the context of a due process

violation, Simer v. Rios, 661 F.2d 655,

663 (7th Cir. 1981) held that, without

reference to any rule of court, a court is

empowered to vacate a judgment that is the

product of a denial of due process.

In the parallel context of a fraud on

the court discovered nine years after ex-

piration of the term of court in which the

judgment was entered, Hazel-Atlas Glass

Co. v. Hartford-Empire Co., 322 U.S. 238

(1944) recognized an exception to the

term-of-court rule

"... to fulfill a universally

recognized need for correcting

injustices which, in certain

instances, are deemed suffici-

ently gross to demand a depar-

ture from rigid adherence to the

term rule. Out of deference to

the deep rooted policy in favor

of the repose of judgments en-

tered during past terms, courts

of equity have been cautious in

exercising their power over such

judgments. [Citation omitted]

But where the occasion has de-

manded, where enforcement of the

judgment is ‘manifestly uncon-

scionable," [citation omitted]

., they have wielded the power

without hesitation."

Without explanation, the court below

rejected Hazel-Atlas as "inapposite."

More recently, Hazel-Atlas' holding

has been cited with approval in Chambers

v. Nasco, Inc., 501 U.S. 32, 44 (1991).

Liljeberg v. Health Services Acquisi-

tion Corp., 486 U.S. 847 (1988) held that

after-discovered facts disqualifying the

judge who had entered the judgment war-

ranted post-judgment relief therefrom,

even though the affirmance of the judgment

had become final on appeal ten months

earlier in a prior term of court.

II. DUE-PROCESS GUARANTEES BARRED JUDGE

MAGER'S PARTICIPATION IN THE CASE CONTEM-

PORANEOUS WITH HIS NEGOTIATION FOR EMPLOY-

MENT, AND EMPLOYMENT, AS A NAME MEMBER OF

A LAW FIRM REPRESENTING THE OPPOSING PARTY

IN REGARD TO THAT CASE AND OTHER CASES

Footnote 12 to Liljeberg, at 865,

quoted Aetna Life Ins. Co. v. Lavoie, 475

U.S. 813 (1986), as follows:

"The Due Process Clause ‘may

sometimes bar trial by judges

who have no actual bias and who

would do their very best to

weigh the scales of justice

equally between contending par-

ties. But to perform its high

function in the best way, ‘'jus-

tice must satisfy the appearance

of justice.'"

Liljeberg, 486 U.S. at 861, also reasoned

that, in regard to matters affecting his

qualification, a judge is required "to

take the steps necessary to maintain pub-

lic confidence in the judiciary." Lilje-

berg's above-quoted reasoning was para-

phrased in Matter of Continental Airlines,

981 F.2d 1450, 1462 (Sth Cir. 1993) as

obligating a judge to disqualify himself

because he accepted employment with a par-

ty's law firm shortly after issuing the

Order in the case. In Pepsico, Inc. v.

McMillen, 764 F.2d 458, 461 (7th Cir.

1985), the judge was disqualified even

though he disclosed the fact that his

agent had negotiated in his behalf for

employment with the Parties' respective

law firms. All the more egregious are the

allegations and proofs relating to the

concealed facts concerning Mager's negoti-

ation for employment and employment as a

name member of the Opposing party's law

firm contemporaneous with his participa-

tion in the appeal. He was thereby tainted

with a direct pecuniary interest in the

litigation. That Strikes at the very

foundation of our judicial system and at

basic notions of due process. In re Mur-

chison, 349 U.s. 133, 136 (1955) stated:

"..+. OUr system of law has al-

ways endeavored to prevent even

the possibility of unfairness.

To this end ... no man is per-

mitted to try cases where he has

an interest in the outcome. That

interest cannot be defined with

precision. Circumstances and

relationships must be consid-

ered. This Court has said, how-

ever, that ‘every procedure

which would offer a possible

temptation to the average man as

a judge ... not to hold the bal-

ance nice, clear, and true ...

denied ... due process of law.'"

Murchison is quoted and adhered to in Louk

v. Haynes, 159 W.Va. 482, 223 S.E.2d 780,

791 (1976). Just such a "possible tempta-

tion" was posed by Judge Mager's "inter-

est" in the opposing party's law firm.

III. WHERE DUE-PROCESS CONCERNS DISQUALIFY

JUDGE WHOSE PARTICIPATION WAS ESSENTIAL TO

QUORUM, HIS DELIBERATIONS AND VOTE WITH

OTHER JUDGES IN PANEL INVALIDATE THE PANEL

DECISION AS A DENIAL DUE PROCESS

In Aetna Life Ins. Co. v. Lavoie, 475

U.S. 813 (1986), a split Alabama Supreme

Court decision was reversed as a denial of

due process where a disqualified Alabama

Supreme Court Justice cast the deciding

vote. The concurring opinions in Aetna

reasoned that the participation of the

disqualified judge in the decision preju-

diced the entire panel regardless of

whether he cast the deciding vote.’ The

majority in Aetna, at 827, withheld ruling

on whether to treat as a denial of due

process an appellate decision in which the

disqualified judge's vote was not the

deciding vote, citing Langer v. Kositzky,

38 N.D. 616, 166 N.W. 534 (1918), Oakley

v. Aspinwall, 3 N.Y. 547 (185), and 48A |

C.J.S. Judges § 159.

In Langer, it was brought to the

attention of the original panel of judges

that one of the judges who participated in

Just as there were substantial

State-law questions that confronted the

Alabama Supreme Court in Aetna, so, in the

appeal from the trial court's judgment of

dismissal in the case at bar, there were

several substantial state-law grounds for

reversal. See footnote 4, ante.

the decision was disqualified. The remain-

ing judges on that panel held that since

the disqualified judge did not cast the

deciding vote and since his participation

was not essential to form a quorum, the

decision would not be vacated.’ Langer is

distinguishable from the case at bar on

each of the following two grounds:

(a) Judge Mager's participation in

considering the appeal was essential to

the three-judge district-court-of-appeal

quorum under Fla. Const. art. V § 4(a);

(b) in Langer, the judges who deli-

berated with the disqualified judge were

still on the panel on rehearing and as

such were able to determine of their own

personal knowledge that the disqualified

Sands v. Wainwright, 491 F.2d 417,

424 (5th Cir. 1973) recognized that where

a three-judge quorum is required, the

requirement is "jurisdictional" and ren-

ders a decision of a quorumless panel

"void."

judge did not prejudicially influence

their vote. By contrast, in the case at

bar, the judges who deliberated with Judge

Mager were no longer on that court when

the motion to recall mandate was filed.

In Oakley, the New York court held

that the disqualified judge's participa-

tion in the appellate panel decision

invalidated the decision; the majority did

not rule on whether his disqualification

deprived the panel of the required quorum

but two concurring judges did rule that

the disqualification deprived the panel of

the required quorum. Langer and Oakley are

cited in 48 C.J.S. Judges § 159.

Also cited in that annotation is a

Florida Supreme Court decision, Caples v.

Taliaferro, 146 Fla. 122, 200 So. 378

(1941). In Caples, one of the Justices of

that court who participated in that deci-

sion was disqualified. When that fact was

ESR

brought to the attention of that court,

the remaining Justices who had participat-

ed in the decision determined that the

disqualification had no effect on the

decision because the disqualified Justice

was not essential to a quorum. Id., at 380

and 382. Caples is distinguishable from

the case at bar for the same reasons that

distinguish Langer.

In the only other two cases cited in

48A C.J.S. Judges § 159 that merit com-

ment, the disqualified judges sat "pro

forma" either by statute or by stipulation

to constitute the needed quorum but did

not participate in the decision: Nephi

Irr. Co. v. Jenkins, 8 Utah 452, 32 P. 699

(1893) (by statute); Walker v. Rogan, 1

Wis. 511 (1853) (by stipulation).

Not a single case, cited in 48A

C.J.S. Judges § 159, reached a result con-

sistent with the result reached in the

court below; not a Single one of those

cited cases allowed to stand a decision in

which there "participated" in the deliber-

ations and vote a disqualified judge whose

presence was necessary to form a "quorum."

The significance of the quorum to

this due process analysis is that, just as

the deciding vote was crucial to the deci-

sion in Aetna, so the participation of a

judge essential to the quorum is equally

crucial to the decision.

This same subject is also annotated

in 46 Am.Jur.2d Judges § 232 and at Annot.

29 A.L.R.5th 722 (1995). Among the cases

annotated therein are the following: Mar-

shall v. Amos, 442 P.2d 500 (Okla. 1968)

(vacating an appellate decision 12 years

later when judge casting decisive vote was

discovered to have accepted a bribe);

Regional Sales Agency, Inc. v. Reichert,

830 P.2d 252 (Utah 1992), (vacating a

panel decision where disqualified judge

participated in, and authored, decision) ;

Parham v. Church Mut. Ins. Co., 53 Ark.

App. 194, 922 S.W.2d 724 (1996) (where

judge who authored opinion was disquali-

fied, entire panel was disqualified, and

panel decision was vacated); State ex rel.

Getchel v. Bradish, 95 Wis. 205, 70 N.W.

172 (1897) (disqualification of one member

of three-member board disqualified board) ;

Harris v. Champion, 15 F.3d 1538 (10th

Cir. 1994) (where one of three judges on

panel was disqualified, panel decision was

subject to de novo review); Nalle v.

Austin, 85 Tex. 520, 22 S.W. 668 (1893)

(where only two judges were required fora

quorum, participation of third judge who

was disqualified did not invalidate panel

decision); Bracey v. Gray, 71 Cal.App.2d

206, 162 P.2d 314 (1945) (disqualified

judge did not participate and was not

needed for quorum); Goodhart v. Casey, 523

Pa. 188, 565 A.2dad 757, 761-762 (1989)

[decision not vacated where two members of

panel who were disqualified were "super-

fluous" to a quorum (and after disqualifi-

cation did not participate on rehearing) ].

The only annotated cases allowing a

panel decision to stand in spite of the

disqualification of one of the participat-

ing judges who was essential to a quorum

are Gorrill v. Whittier, 3 N.H. 265 (1825)

and Boyer v. State, 486 So.2d 70 (Fla.

Dist.Ct.App. 1986). The order of the

district court of appeal, refusing to re-

call the mandate in the case at bar on

jurisdictional grounds, cited Boyer, pre-

faced by the signal "See, e.g." That same

court had previously decided Boyer. Boyer

reasoned that the circumstances disquali-

fying one of the judges on that panel did

not rise to the level of a denial of "due

process" because they occurred 16 years

before that judge participated in the pan-

el decision. The circumstances, disquali-

fying Judge Mager in the case at bar,

occurred contemporaneous with his parti-

Ccipation in the panel decision and other-

wise differ markedly from those in Boyer.

The New Hampshire court's pre-Four-

teenth Amendment decision in Gorrill alone

held that the participation of a disqual-

ified judge who formed part of the quorum,

though erroneous, did not render the pro-

ceeding "void."

Omitted from the foregoing annota-

tions is any citation to Stockwell v.

Township Board of White Lake, 22 Mich. 341

(1871). Stockwell held that participation

in a proceeding, that was judicial in

nature, by an officer who was disqualified

and who formed part of the needed quorum

rendered that proceeding void.

Thus, Aetna's majority and concurring

opinions, the authorities cited therein,

and case law in general all support the

following conclusion: where due process

grounds to disqualify a judge, who was

both essential to a quorum and participat-

ed in the decision, are discovered after

that decision and promptly brought to the

court's attention, due process requires

that the decision be vacated. In the case

at bar, the court's reliance on the tern-

of-court rule in refusing even to consider

on the merits this due-process issue was

itself a further denial of due process.

Iv. CONCLUSION :

The foregoing analysis shows that the

decision below conflicts with decisions of

this Court and of state courts of last

resort on important constitutional issues

that merit certiorari review.

Respectfully submitted,

Miriam Donner, Petitioner

P. O. Box 1232

Hallandale, Florida 33009

IN THE DISTRICT COURT OF APPEAL OF THE

STATE OF FLORIDA FOURTH DISTRICT,

P.O. BOX 3315, WEST PALM BEACH, FL 33402

MIRIAM DONNER,

Appellant,

v; CASE NO. 76-1708

CHARLES DONNER,

Appellee.

December 23, 1997

BY ORDER OF THE COURT:

Appellant's motion to recall mandate

and declare mandate void is denied.

This court's file has long been

destroyed.

The panel denied rehearing on

September 15, 1977, and again on September

21, 1977. Thereafter, Ms. Donner sought

review in the Florida Supreme Court. The

Supreme court denied review in February

1978. This court's mandate issued on

February 17, 1978.

An appellate court is without juris-

APP. I

diction to recall its mandate beyond the

term of court during which the mandate was

issued. State Farm Mutual Ins. Co. v.

Judges of District Court of Appeal, Fifth

District, 405 So.2d 980, 982 (Fla. 1981).

The supreme court explained:

All things must have end, evena

district court's power to cor-