#### STATE of Florida ex rel. Richard E. GERSTEIN, as State Attorney of the Eleventh Judicial Circuit of Florida, Relator, v. Honorable Carling STEDMAN, as Judge of the Criminal Court of Record in and for Dade County, Florida, Respondent.

No. 70-175.

District Court of Appeal of Florida, Third District.

March 20, 1970.

Rehearing Denied April 15, 1970.

Richard E. Gerstein, State’s Atty., and Joseph Durant, Asst. State’s Atty., for relator.

Horton & Schwartz, Miami, for respondent.

Before CHARLES CARROLL, HEN-DRY and SWANN, JJ.

HENDRY, Judge.

The relator, State of Florida, has filed its petition in this court seeking a writ of prohibition directed to the respondent judge. A rule to show cause has been issued and the respondent has entered his return. The relator seeks to have Judge Stedman recused from a certain case pending in the Criminal Court of Record in and *143for Dade County, Florida, such case being based on an indictment from the Dade *County*Grand Jury and necessarily involving the testimony of an immunized witness. The defendants in this case are Henry Milander and Morriss Wolfe, the case being numbered 70-360.

The relator’s position is that the above mentioned characteristics of this particular case would cause the respondent judge to be prejudiced toward the state in the proceedings because, according to an affidavit filed by an assistant state attorney,1 Judge Stedman has made the following statement: “There is no such thing as a good grand jury indictment. They are all bad.” Moreover, the affidavits in support of the suggestion for writ of prohibition filed by three other members of the state attorney’s office show that those assistant state attorneys have heard Judge Stedman state that he is philosophically opposed to the granting of immunity and that he would not rely upon testimony of an immunized witness. See footnote 1, supra. In concluding its argument, the state contends that since the respondent judge has taken a position on certain policies, to-wit: grand jury indictments and immunized witnesses, he has thus disqualified himself to sit “on any cause affecting the issue he advocates”. In support of its position, the state relies heavily upon the principles of law contained in State ex rel. La Russa v. Himes, 1940, 144 Fla. 145, 197 So. 762.

The return to the rule to show cause presents two questions for our determination: (1) Does the respondent’s stated position that “there is no such thing as a good grand jury indictment — they are all bad” subject him to disqualification in this case? (2) Is the respondent judge subject to disqualification in this case, which necessarily calls for testimony from the immunized witnesses, on the basis that he is “philosophically opposed to the granting of immunity to a witness and that he would not rely upon the testimony of a potential defendant who has been immunized” ?

We must answer both questions in the negative. The above cited La Russa case, relied upon heavily by the state, presented a situation wherein the respondent judge there was seeking reelection and, during the course of his campaign, said that he would put people like La Russa away in Raiford, and that people like La Russa could not get a license to gamble and violate the lottery laws by paying a fine. The Supreme Court based its issuance of the writ of prohibition upon the obvious fact that the respondent judge in that case had already prejudged La Russa. The court, *144basing its holding largely upon recognition of human nature, concluded that “[I]t is contrary to all human experience to contend that a judge under the circumstances stated may single out one charged or that may be charged with a crime and talk to the public about sending him to Raiford and then contend that the one singled out when haled before the judge for trial had no grounds for belief that the latter was prejudiced.” *

In the case sub judice, however, the utterances of the respondent judge were made not in regard to the case involving the instant defendants, supra, but were made during the course of another trial which occurred several months ago. The personal nature inherent in the singling out of an individual defendant, as was present in La Russa, supra, is absent in the instant case, and the remark complained of, relating to grand jury indictments, when considered in its proper context, appears more properly to be a statement of the judge’s philosophical position rather than his personalized prejudice which would preclude a fair trial to the defendants involved.

We do not subscribe to the view that a judge is necessarily disqualified because he has formed an opinion as to the legal questions involved in the case. We feel that the controlling principle of law may be found in the case of State ex rel. Sagonias v. Bird, Fla.1953, .67 So.2d 678. In the Bird case, the complained of public position taken by the respondent judge there pertained to that judge’s criticism of certain search and seizure decisions of the Florida Supreme Court. The relator in that case was about to be tried by Judge Bird for violation of the lottery laws, and he alleged that the judge’s prior statements evidenced a bias and prejudice against all persons so charged. The court, however, declined to issue the writ of prohibition and set forth its reasoning in these words:

> “Obviously, the fact that a certain statute or principle of law may run counter to the personal views of the judge does not mean that he is disqualified to try a case involving such law or principle. The not uncommon statement in judicial opinions that ‘the courts are not concerned with the wisdom of legislation but only with the legislative power to enact it’ evidences the fact that judges are often called upon to — and do — uphold and enforce laws with which they may not be entirely in accord.”

None of the affidavits, including the one referring to Judge Stedman’s position on grand jury indictments, charged that the judge will refuse to follow the law.

As to the relator’s second grounds for contending that the respondent judge be disqualified from this case, we find the supporting affidavits to be lacking in the specificity upon which a writ of prohibition could be issued. See footnote 1, supra. Moreover, the above cited principles of law extracted from State ex rel. Sagon-ias v. Bird, supra, are equally applicable to the contention that the respondent judge could not render a fair and impartial trial involving the testimony of immunized witnesses.

The rule, therefore, is discharged.

1

. The pertinent portions of the affidavits filed in support of the relator’s suggestion are as follows:

> Assistant State Attorney Durant deposed “ * * * That Judge Carling Sted-man is prejudiced against the State of Florida in this cause because Judge Sted-man has stated to your affiant, ‘There is no such thing as a good Grand Jury Indictment. They are all bad.’ ”

> Assistant State Attorney Sepe deposed “ * * * That on the 19th of November, 1969, during the trial of the Case of State v. Gene Barron, et al., Judge Carling Stedman stated to Affiant that he is philosophically opposed to the granting of immunity to a witness and that he would not rely upon the testimony of a potential defendant who has been immunized.” Assistant State Attorney Dean deposed “ * * * That Judge Carling Stedman is prejudiced against the State of Florida in this cause because Judge Stedman has stated to your affiant, T don’t like immunity. I don’t believe in immunity.’ ” Assistant State Attorney Markowitz deposed that “To the best of Affiant's memory and knowledge Judge Carling Sted-man stated in the presence of your Af-fiant that he does not like the practice and concept of immunity, and that as an Assistant State Attorney, he followed a policy of refusing to grant immunity to witnesses.”

> In reference to the latter affidavit, see the opinion authored by Justice Ervin in Dade County Bd. of Public Instruction v. Michigan Mutual Liab. Co., Fla. 1964, 169 So.2d 483, where he declined to recuse himself merely because, during the fifteen years he served as attorney general, he had expressed an opinion on an issue raised in the instant case.

SWANN, Judge

(concurring specially).

I concur with the majority and dissenting opinion as to the legal insufficiency of the affidavits for disqualification as they relate to the statements of the trial judge concerning the Grand Jury Indictments.

I specially concur in the majority opinion for the following additional reasons.

Rule 1.230, “CrPR”, 33 F.S.A., is pertinent in this case and is set forth, in material part, in the dissenting opinion.

The rule contains substantially the same requirements as § 911.01 (3) — (4) and § 38.-10, Fla.Stat., F.S.A. The procedural requirements of the rule differ from those of the statutes, but the requirements of the two accompanying affidavits under the rule and statutes are essentially the same.

*145In passing on the essential requirements for disqualification of a trial judge in a criminal case under § 911.01, Fla.Stat., F. S.A., the Supreme Court in State ex rel. Murray v. Caro, 154 Fla. 215, 17 So.2d 79 at p. 81 (1944) made the following statement :

> “It is contemplated by the statute that before an order of disqualification will be entered by the trial judge *the facts alleged in the accompanying affidavits*required to be filed with the motion and affidavit of the movant *must support in substance sufficient of the facts revealed by the main affidavit to make it appear that the fear of the defendant that he will not receive a fair trial because of prejudice of the trial judge is well founded and not fanciful or frivolous.*In other words, it is only to such of the facts and reasons stated as a basis for making the affidavit of prejudice *that have been corroborated in substance*by the affidavits of at least two presumably disinterested persons not of kin or of counsel to defendant, that the trial judge should look in order to ascertain whether he should disqualify himself on the motion or suggestion. See City of Palatka v. Frederick, 128 Fla. 366, 174 So. 826; State ex rel. Brown v. Dewell, 131 Fla. 566, 179 So. 695, 115 A.L.R. 857.” (Emphasis added)

Under the statutes, rule and the cases, it appears to be necessary, to me, that *two*legally sufficient affidavits are required to be filed *setting forth the facts*relied upon to show the grounds for disqualification. (Emphasis added)

There is in this record, in my opinion, only one affidavit which could be considered legally sufficient for disqualification of the judge in this case. The affidavit of Mr. Sepe to the effect “that he (the judge) would not rely upon the testimony of a potential witness who had been immunized” may be legally sufficient, I believe, for the reasons set forth in the dissent.

The affidavit of Mr. Dean solely to the effect that Judge Stedman had stated “I don’t like immunity, I don’t believe in immunity”, amounts to, at most, a statement of his personal philosophy or opinion. This is legally insufficient for disqualification. See State ex rel. Sagonias v. Bird, Fla. 1953, 67 So.2d 678; and 46 Am.Jur.2d Judges § 168-69.

The affidavit of Mr. Markowitz is set forth fully in footnote one of the majority opinion.

It is legally insufficient, I believe, under the authority and rationale of Hahn v. Frederick, Fla.1953, 66 So.2d 823. The affidavit of Mr. Markowitz is made “to the best of affiant’s memory and knowledge.”

In commenting on the requirements necessary for disqualification in a civil case under § 38.10, Fla.Stat., F.S.A., the Supreme Court, in Hahn stated at p. 825:

> “The affidavits attached to the main affidavit do not comport with the statute. They do not support in substance the facts stated as a basis for making the main affidavit. The farthest either affiant goes in supporting the facts stated in the main affidavit is his statement that the facts in the main affidavit are true ‘to the best of his knowledge, information and belief.’ Such statement in an affidavit amounts to no more than a statement that so far as affiant’s knowledge goes, the facts are true; but in order to ‘support the facts in substance,’ the affidavits must be that affiant has knowledge of the facts and knows them to be true. An affidavit the statements of which are alleged on information and belief is, by the weight of authority, insufficient in any instance where one is required to make affidavit as to the substantive truth of facts stated, and not merely as to good faith. * * * This necessarily follows, in our opinion, from the well settled rule that the facts of an affidavit must be stated in a positive, and not a qualified manner.”

*146‡ j{c ***‡ ***

See also State ex rel. Bank of America v. Rowe, 96 Fla. 277, 118 So. 5 (1928).

Even if the affidavit of Mr. Markowitz was based on his knowledge of the facts and he knew them to be true, the statement that the judge “does not like the practice and concept of immunity, and that as an Assistant State Attorney, he followed a policy of refusing to grant immunity to witnesses” is at most, I believe, a statement of the judge’s personal opinion and philosophy and refers only to a policy and philosophy which he followed in the past as an Assistant State Attorney. There are many judges today who are older and wiser, including perhaps nominees to the Supreme Court of the United States, who would not, and do not, wish to be bound by statements made in the past or in their youth of their personal opinions or philosophy.

Neither of the last two affidavits contain any statement of fact that, as a judge, he would not rely on the testimony of an immunized witness. They do not corroborate the statement referred to in the Sepe affidavit and are legally insufficient in my opinion.

Since the rule and the cases require two legally sufficient affidavits and as there is only one legally sufficient affidavit in this cause, I concur in the maj ority opinion.

CHARLES CARROLL, Judge

(dissenting).

I respectfully dissent.

> “ ‘Every litigant, including the state in criminal cases, is entitled to nothing less than the cold neutrality of an impartial judge.’ It is the duty of courts to scrupulously guard this right of the litigant and to refrain from attempting to exercise jurisdiction in any matter where his qualification to do so is seriously brought in question. The exercise of any other policy tends to discredit and place the judiciary in a compromising attitude which is bad for the administration of justice.” State ex rel. Mickle v. Rowe, 100 Fla. 1382, 131 So. 331, 332.

When presented with a motion for his disqualification, a judge “has no right to pass upon the truth or falsity of the facts alleged therein; neither can he adjudicate the question of his disqualification. If he finds the affidavit legally sufficient, he is left with no alternative but to retire from the cause, as directed by the statute.” Dickenson v. Parks, 104 Fla. 577, 140 So. 459, 462. It is the duty and the function of the judge to whom such a motion is addressed to examine the motion and its supporting affidavits to see if they meet the requirements as to form, and to determine the legal sufficiency thereof. If the judge finds they are sufficient in legal form and substance he may make no other order in the cause than one for his disqualification. Dickenson v. Parks, supra.

This court, on prohibition relating thereto, has no broader leeway on consideration of the motion than had the trial judge. That is, if this court finds the state’s disqualification application as made in the trial court was adequate in form, and legally sufficient, the writ of prohibition should be granted. Prohibition should be denied only if the disqualification application is found by this court to be deficient in form or legally insufficient.

Rule 1.230 CrPR provides: “The state or the defendant may move to disqualify the judge assigned to try the cause on the grounds: that the judge is prejudiced against the movant or in favor of the adverse party; * * * The rule further provides: “Every motion to disqualify shall be in writing and be accompanied by two or more affidavits setting forth the facts relied upon to show the grounds for disqualification, * * *

*147The state attorney in moving for disqualification on behalf of the state, tracking the language of the rule charged prejudice of the respondent judge, and alleged the belief that the state would not receive a fair trial. Attached to the motion were affidavits, as provided for by the rule, in which it was said that the respondent judge had stated “There is no such thing as a good Grand Jury Indictment. They are all bad.” Also, that the respondent judge had stated “I don’t like immunity. I don’t believe in immunity”, and had stated that he was philosophically opposed to the granting of immunity to a witness, *and that he would not rely upon the testimony of a potential defendant who had been immunized.*

In the state attorney’s motion for disqualification it was alleged that in the case to be tried the state would be required to place material reliance on the testimony of a witness who had been granted immunity, and that because of the demonstrated prejudice of the trial judge against use of an immunized witness, the state could not receive a fair trial in the cause before the respondent judge.

I do not disagree with the view expressed by the majority that the fact that the trial judge had stated “There is no such thing as a good Grand Jury Indictment” did not constitute a legally sufficient ground for disqualification of the judge; or that the statements of the trial judge that he did not like immunity and was philosophically opposed to the established practice of granting immunity to a witness did not amount to a legally sufficient ground for disqualification. Those rulings are supportable on the authority of State ex rel. Sagonias v. Bird, Fla. 1953, 67 So.2d 678.

Where I disagree in this case is that, contrary to the holding of the majority, it is my opinion that the statement attributed to the trial judge that he would not rely on the testimony of a potential defendant who has been immunized, constituted a legally sufficient ground for disqualification of the judge for prejudice against the state in a case in which the prosecution must rely in material part upon the testimony of such a witness.

The holding in the Bird case does not cover or extend to a situation such as that mentioned in the preceding paragraph. It is one thing for a judge to express disapproval of an established rule of law or legal practice. That, as held in the Bird case, does not necessarily mean the judge would not follow the provision of law which he disapproves. It is an entirely different matter, however, for a judge, in addition to expressing disapproval of a rule or principle of law, to state or imply he would not apply it or give it due effect.

In State ex rel. Brown v. Dewell, 131 Fla. 566, 179 So. 695, 697, 115 A.L.R. 857, the Supreme Court said:

> “The test of the sufficiency of the affidavit is whether or not its content shows that the party making it has a well-grounded fear that he will not receive a fair trial at the hands of the judge. It is not a question of how the judge feels; it is a question of what feeling resides in the affiant’s mind, and the basis for such feeling.”

The fear expressed by the state attorney that the state would not receive a fair trial in the cause before the respondent judge, appears to be soundly and reasonably based. For instance, as argued here on behalf of the state, even though the trial should be before a jury, prejudice to the state’s case could result from remarks, attitude or demeanor of the judge toward or with reference to an immunized witness while testifying or with respect to his testimony, where it appears from his alleged prior statements the trial judge views such a witness with disdain or even reprehension. Also, as brought out by the state, if called upon to determine the sufficiency of *148the evidence, which it is shown will depend in material part on the testimony of an immunized witness, as on a motion of a defendant for a directed verdict of acquittal, the prior statement of the trial judge that he would not be willing to rely upon the testimony of an immunized witness could affect his ruling on such a matter to the prejudice of the state as a party to the case.

It is not necessary that it be established with certainty that such prejudice will actually occur in the trial. In State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613, 615, the Supreme Court stated that to force a party to trial in face of the fear which the motion for disqualification warrants, would impose on that party a condition contrary to every principle devised for the administration of justice under our system of jurisprudence, and added “There may in reality, be little basis for his fear but if it’s there, the renunciation of the trial judge won’t efface it. There is no reason why he should not and every reason why he should recuse himself under the circumstances.” Likewise, in State ex rel. La Russa v. Himes, 144 Fla. 145, 197 So. 762, 763, in speaking of a party who had sought disqualification for prejudice expressing fear that he would not receive a fair trial, the Supreme Court said: “Fear that he will not have a fair trial may in some cases be a mental attitude but if the conduct of the judge has been such as to create it, the law requires that he recuse himself. It may ultimately be as devoid of reality as the cenotaph is to the remains of the hero it commemorates but if conclusively shown that the seed of fear was planted and the facts related gave a reasonable man ground for belief that the judge is prejudiced, that is sufficient.”

The writ of prohibition should have been granted.