02-0983 KOPEL V. KOPEL

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State: Florida

Court: Florida Third District Court

Docket No: 02-0983 KOPEL V. KOPEL

Case Date: 12/11/2002

Preview:IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2002

LEON KOPEL, Petitioner, vs. BERNARDO KOPEL, et al., Respondents.

** ** ** ** ** CASE NO. 3D02-983 LOWER TRIBUNAL NO. 94-21159

Opinion filed December 11, 2002. A Case of Original Jurisdiction -- Prohibition. Paul Morris; Josephs, Jack, Miranda, McCullough & McKeown Stephanie E. Demos, for petitioner.

and

Heller and Kaplan and Daniel Neal Heller, for respondents. ON MOTION FOR REHEARING Before COPE, SHEVIN and RAMIREZ, JJ., The motion for rehearing is denied.

ON MOTION FOR REHEARING EN BANC Before SCHWARTZ, C.J., and JORGENSON, COPE, LEVY, GERSTEN, GODERICH, GREEN, FLETCHER, SHEVIN, RAMIREZ, JJ. PER CURIAM.

The motion for rehearing en banc is denied. SCHWARTZ, C.J., JORGENSON, COPE, LEVY, GERSTEN, GODERICH, GREEN, FLETCHER, SHEVIN and RAMIREZ, JJ., concur. SCHWARTZ, Chief Judge (specially concurring). I agree that this case is inappropriate for en banc

consideration.

I wish, however, to reflect upon the important

question which it may present as to whether we endorse what I regard as the wholly unwise "potted palm" or "Mount Rushmore" view of the proper role of the trial judge in the administration of Florida justice should prevail. The appellate attitude that a trial judge may, if

sufficiently unobtrusive, be seen, but rarely heard, has been reflected in several recent decisions which are in denigration of her proper function as an active participant in the search for truth, but cf. Sparks v. State, 740 So. 2d 33 (Fla. 1st DCA 1999)(conviction reversed because, at bench conference, trial court suggested appropriate means of admitting competent

evidence), review denied, 741 So. 2d 1137 (Fla. 1999); Copiers Int'l v. All American Business Sys., Inc., 825 So. 2d 438 (Fla. 3d DCA 2002)(trial judge disqualified for inquiring why

defendant had not been referred to state attorney's office for prosecution in light of allegations of misconduct), and as the person uniquely charged with controlling the courtroom. But cf.

Brown v. State, 678 So. 2d 910 (Fla. 4th DCA 1996)(conviction 2

reversed because of admonishment to counsel for impropriety in presence of jury); Peters v. State, 626 So. 2d 1048 (Fla. 4th DCA 1993)(reversing contempt conviction for uttering expletive in open court). (Fla. 2d DCA But cf. also Barnett v. Barnett, 727 So. 2d 311 1999)(trial judge disqualified for informing

counsel in bench trial after all the evidence that both clients "should attempt to negotiate for more visitation than she would otherwise receive if the trial court made the decision"), review denied, 735 So. 2d 1283 (Fla. 1999). Indeed, as is perhaps true

in this very case, trial judges seem to be forbidden even the right to the expression of ordinary human discourse and banter in the course of performing their duties. See Copiers Int'l,

825 So. 2d at 438; Vivas v. Hartford Fire Ins. Co., 789 So. 2d 1252 (Fla. 4th DCA 2001); Don King Productions, Inc. v. Chavez, 768 So. 2d 538 (Fla. 4th DCA 2000); Begens v. Olschewski, 743 So. 2d 133 (Fla. 4th DCA 1999); Roy v. Roy, 687 So. 2d 956 (Fla. 5th DCA 1997). Even more, I am concerned with the growing acceptance of the view that trial judges are there only to referee and, rather than to do justice, to avoid error. So. 2d 1243 (Fla. 1999)(trial See Perriman v. State, 731 should merely recite

judges

approved standard jury instructions rather than assist jury in reaching appropriate verdict by directly answering its

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question). (Fla. 3d

Compare Borden, Inc. v. Young, 479 So. 2d 850, 851 DCA 1985)("[I]t is no longer--if it ever was--

acceptable for the judiciary to act simply as a fight promoter, who supplies an arena in which parties may fight it out on unseemly terms of their own choosing, and then, on the ground that the loser has asked for what he received, obediently raise the hand of one who emerges victorious."), review denied, 488 So. 2d 832 (Fla. 1986) with Murphy v. International Robotics Sys., Inc., 766 So. 2d 1010 (Fla. 2000); see Murphy, at 1032 (Parienti, J., concurring specially); Telemundo Network, Inc. v. Spanish Television Servs., Inc., 812 So. 2d 461 (Fla. 3d DCA 2002)(Sorondo, J., concurring), review dismissed, ___ So. 2d ___ (Fla. Case no. SC02-1133, October 22, 2002). The task of the

courts is too important, indeed too sacred, to be left to the litigants and their counsel alone. The meaningful participation When the

of the trial judge is indispensable to that process.

proper time comes, I hope that decisions of this court will make that point clear. JORGENSON, LEVY, GERSTEN, GREEN, FLETCHER and SHEVIN, JJ., concur.

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