MOTION ASKS JUDGE HOEVELER
BE REMOVED FROM EVERGLADES CASE

Inappropriate Conduct, Press Interviews
Show Judge’s Bias And Inability To Rule Fairly

MIAMI, FL – June 4, 2003 – Attorneys for U.S. Sugar Corporation filed a motion with the Chief Judge of the Federal District Court in Miami today to disqualify Judge William M. Hoeveler from the pending Everglades case because of his demonstrated bias and inappropriate judicial conduct. The motion asks that a new judge be assigned.

Judge Hoeveler made public statements about how he intended to rule in the case without swearing witnesses or hearing any evidence, delivered negative opinions about persons who are parties in the case, tried to influence actions of the Governor and Legislature, and otherwise created the appearance of partiality and demonstrated bias, the motion says.

The case before Judge Hoeveler involves the enforcement of a Consent Decree that resulted from settlement of the original Everglades water quality litigation in 1992. In 1994 the Florida Legislature passed the Everglades Forever Act, which addressed water quality. In 2001 the judge approved motions originally filed in 1995 to amend his Consent Decree to reflect the new legislation. He retained jurisdiction to track commitments to water quality on behalf of the State of Florida.

The motion says Judge Hoeveler violated the Code of Conduct of U.S. Judges, which provides that “A judge should avoid impropriety and the appearance of impropriety in all activities.” The code further instructs that a judge should “avoid public comment on the merits of a pending or impending action.”

This spring the Legislature considered a bill to update the Everglades Forever Act to provide for Phase II of water quality improvements. Based on his reading of newspaper articles on that subject, Judge Hoeveler took the unprecedented step on April 23, 2003 of ordering a hearing to address the pending, but not-yet-passed bill---an action completely outside the jurisdiction of the court.

While Gov. Jeb Bush was deciding whether to sign the bill into law, Judge Hoeveler issued an order on May 9 for the apparent purpose of creating a news event to put political pressure on Gov. Bush to veto the bill, the motion says.

The May 9 order criticized the sugar industry for influencing the Legislature by using lobbyists, which is a legal and constitutionally protected activity. He also expressed his personal dismay with and questioned the political motivations of the Florida Legislature. He made no mention of extensive lobbying activities of environmental groups.

The judge said that Gov. Bush had been misled by persons “who do not have the best interests of the Everglades at heart.” The persons referred to in this finding, the motion says, are apparently the representatives of the sugar industry, who now stand adjudged of engaging in deceptive conduct. This serious finding of misconduct was made without notice, hearing, the opportunity to respond or any of the safeguards of due process—actions clearly improper for a judge to take.

Further, Judge Hoeveler granted private interviews in his chambers with reporters who subsequently quoted his statements that impugn the integrity of parties to the case, discuss issues relevant to the case and even foretell future legal rulings of various important issues, such as modification of the Consent Decree and the applications of the federal preemption doctrine. Similar behavior led to recusal of the judge in a Microsoft case in 2001.

The code of conduct says that a judge should neither initiate nor consider ex parte communications on the merits or procedures affecting the merits of a pending action. Private press interviews, such as those conducted by Judge Hoeveler, constitute such communications.
Moreover, according to one news report, the judge has spoken to numerous members of the public about his views on the legislation. Judge Hoeveler said in a published report that he spoke with members of the public who advised him to “Do It.” “Do It.” “Do It.” relating to actions pending in the case.

A judge’s advocacy of a political position that affects the outcome of a case before the court gives the appearance of partiality and demonstrates bias and is serious grounds for removal from the case. In this case Judge Hoeveler has shown bias by making unsupported charges against the sugar industry and ruling on matters without any pending motions and without providing due process.

According to the motion, Judge Hoeveler’s bias is reflected in the fact that he declined to provide the parties to the case with procedural due process. Without any pending motion to modify the consent decree, he concluded that the state parties had withdrawn their support for the Consent Decree and he made judicial findings that the not yet acted upon state legislation was invalid, pre-empted by federal rules and unenforceable.

Judge Hoeveler made statements to the media that he would not allow any modifications to the Consent Decree when the decree itself allows for modifications and previous hearings before the court had directly involved reaching decisions to modify one or more parts of the Consent Decree.

Judge Hoeveler is a supremely respected Judge. In his long, distinguished career, he has overseen complex and political matters with impartiality and wisdom. He has presided over numerous cases that have been the subject of public and media scrutiny and have involuntarily placed his name prominently in the press. He has in the past consistently remained above the fray of partisanship. Judge Hoeveler’s conduct in this case is, to U.S. Sugar’s knowledge, an unfortunate and unprecedented deviation from his historic ability to remain a detached, neutral arbiter. The judge is obviously doing what he thinks is right. However, his new willingness to become an advocate against legislation he has concluded is material to this case and to publicly criticize parties based upon information gleaned solely from the press shows a depth of feeling about issues related to the Everglades that will prevent him from fairly and impartially discharging his judicial function.

The motion, filed by Gunster Yoakley attorney Rick Burgess, requests that Judge Hoeveler be disqualified from presiding over further proceedings in the case, and that his order of May 9, 2003, be vacated. A related case was filed today in the Eleventh Circuit Court of Appeals in Atlanta, GA by New Hope Sugar Company.

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To read more background information, please click here.

To read more about Judge Hoeveler's actions and comments, please click here.