# Petition for Writ of Certiorari — Donner v. Donner > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1615%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1998 - **Citation:** 525 U.S. 1002 ## Text »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? i 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. ii 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 ii ix 15 15 19 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 iv 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 vi 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 27 25 20 26 17 18 27 29 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. ix 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: 2 "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 3 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 4 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 5 the necessary quorum; (c) Additionally, disquali- 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. 7 nr 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 8 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. 9 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 10 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, 11 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). 12 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, 5 Liljeberg had also been cited and discussed in Miriam Donner's motion to recall mandate. 13 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. 14 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 15 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 16 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- 17 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 19 ee 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- 20 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 21 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. 22 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 8 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." 23 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 24 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 25 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 26 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 27 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 28 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. 29 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. 30 Respectfully submitted, Miriam Donner, Petitioner P. O. Box 1232 Hallandale, Florida 33009 31 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- 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.' Lovett v. State, 29 Fla. 384, 401, 11 So. 176, 179 (1892). See also, e.g., Washington v. State, 92 Fla. 740, 110 So. 259 260-261 (1925); Thompson _v. Singletary, 659 So.2d 435 (Fla. 4th DCA 1995); 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. APP. II ORDERED that appellant's November 3, 1997, motion for leave to amend motion is hereby granted. Further, ORDERED that appellant's December 2, 1997, motion to substitute parties is denied as moot. | I hereby certify the foregoing is a true copy of the original court order. /s/ MARILYN BEUTTENMULLER CLERK cc: Miriam Donner L.J. Cushman Bruce Lazar Jonathan Feuerman /CH APP. III IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT, P.O. BOX 3315, WEST PALM BEACH, FL 33402 MIRIAM DONNER, CASE NO. 76-1708 Appellant(s), Vv. CHARLES DONNER, L.T. CASE NO. ie 76-3759 Appellee(s) . BROWARD January 30, 1998 BY ORDER OF THE COURT: ORDERED that appellant's motion filed December 30, 1997, for rehearing is hereby denied; further, ORDERED that appellant's motion filed December 30, 1997, for rehearing en banc is hereby denied; further, ORDERED that appellant's motion filed December 30, 1997, for certification is hereby denied; further, ORDERED that appellant's motion filed December 30, 1997, to reconstitute record is here»y denied. APP. IV I hereby certify the foregoing is a true copy of a +t opm court order. s MARILYN BEUTTENMULLER CLERK cc: Miriam Donner Bruce Lazar Jonathan Feuerman L.J. Cushman Robert E. Lockwood, Clerk /CH SUPREME COURT OF FLORIDA Monday, May 1, 1998 MIRIAM DONNER, * * Petitioner, * CASE NO. 92,543 * Vv. * District Court of * Appeal, 4th CHARLES DONNER, * District - No. * 76-1708 * Respondent. a ee ee This cause having heretofore been submitted to the Court on jurisdictional briefs and portions of the record deemed necessary to reflect jurisdiction under Article V, Section 3(b), Florida Constitu- tion, and the Court having determined that it should decline to accept jurtedietion, it is ordered that the Petition for Review is denied. __No_ Motion for Rehearing will be entertained by the Court. See Fla. R. App. P. 9.330(d). OVERTON, HARDING, WELLS, ANSTEAD and PARIENTE, JJ., concur APP. VI A True Copy BH cc: Hon. Marilyn N. TEST Beuttenmuller, Clerk SEAL Hon. Robert E. /s/ Lockwood, Clerk Sid J. White w/copy to Circuit Clerk, Supreme Court Judge Ms. Miriam Donner Mr. L. J. Cushman Mr. Jonathan Feuerman APP. VII IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT, JULY TERM 1977 MIRIAM DONNER, ) ) Appellant, ) ) Vi ) CASE NO. 76-1708 ) CHARLES DONNER, ) ) Appellee. ) Decision filed August 9, 1977 Appeal from the Circuit Court for Broward County; Thomas J. Reddick, Jr., Judge Miriam Donner, Hallandale, pro se. L. J. Cushman of Cushman & Cushman, Miami, for appellee. PER CURIAM. AFFIRMED. ALDERMAN, C.J., MAGER and DAUKSCH, JJ., concur. APP. VIII from DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT TO THE HONORABLE, THE JUDGES OF: The Cir- cuit Court for Broward County. GREETINGS : 7 WHEREAS, in that certain cause filed in this court styled: Miriam Donner v. Charles Donner Case No. 76-1708 Your Case No. 76-3759 The attached opinion was rendered on August 9, 1977 YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause in accordance with the decision and judg- ment of this court, the rules of procedure and the laws of the State of Florida. APP. IX WITNESS the Honorable James E. Alderman Chief Judge of the District Court of Appeal of the State of Florida, Fourth District and the seal of said Court at West Palm Beach, Florida, on this 17th day of February, 1978. SEAL /s/ Clerk of the District Court of Appeal of the State of Florida, Fourth District APP. X IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO. 76-3759 (Reddick) MIRIAM DONNER, Plaintiff, vs. : JUDGMENT ON APPLICATION CHARLES N. DONNER, : FOR SEPARATE MAINTENANCE Defendant The above entitled cause coming on to be heard upon the Motion for Temporary Maintenance filed by the Plaintiff, Miriam Donner, upon consideration of the testi- mony and evidence offered by the respec- tive parties, the Court finds that at the time the above entitled suit was filed Plaintiff, Miriam Donner, and Defendant, Charles N. Donner, were not husband and wife and that said Plaintiff and Defendant never had been husband and wife prior to the filing of the above entitled suit. Upon consideration thereof the Court finds that Plaintiff is not entitled to any of the relief sought by her Complaint and it is therefore CONSIDERED, ORDERED and ADJUDGED as follows: (1) ‘That the said Motion for Temporary Maintenance be and the same is hereby denied. (2) That the above entitled suit and Plaintiff's Complaint be and the same are hereby dismissed with prejudice at Plaintiff's cost. DONE and ORDERED at Fort Lauderdale, Broward County, Florida, this 7 day of June, 1976. Thomas Reddick CIRCUIT JUDGE APP. XII SI OLED, IE LE, LOPLI LIE LLIN, LL LLM ON, SEY SA MERI 9 Oe BIN beady ee alee SN i Ae SH, ibe —— --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1615%3A1. Public record. Not legal advice.