Transportation tax critic’s wife could decide not to recuse herself

Tom and Laurel Lee prepare for their next chapter as she becomes Secretary of State

The judge named to preside over a lawsuit against several local governments and constitutional offices that will receive revenue from the recently approved transportation sales tax will make the ultimate decision whether she takes the case.

Hillsborough County Circuit Judge Laurel Lee was assigned to hear Hillsborough County Commissioner Stacy White’s lawsuit aiming to overturn the voter-approved 1 percent transportation sales tax. But her husband, Florida Sen. Tom Lee, was a vocal opponent of the tax. His face and quotes were frequently seen in opposition campaign mailers urging Hillsborough County voters to oppose the All For Transportation referendum.

The optics are clear — it looks like a cut and dry conflict of interest. But in the eyes of the law, it’s not necessarily enough to force her to recuse herself from the lawsuit.

“Historically, it’s fair to say that having a spouse who is committed to a cause is not often enough to require a recusal,” said Stetson University Professor Louis Virelli.

A broader interpretation exists, too.

“If the choice to participate causes a reasonable observer to question your impartiality, you might want to recuse,” Virelli said.

But that decision is up to the judge. One of the litigants — the plaintiff or defendants — could ask a judge to recuse themselves. It would then be up to that judge whether to oblige that request.

The only recourse to overturn a judge’s decision to recuse themselves in a case is through the appellate process. Virelli said in this case, that’s an appeal not likely to find success.

“If [Sen. Lee] was an employee of one of the parties or employed by someone for the purpose of achieving an outcome — if he were employed to defeat a bill or advance a bill, like a lobbyist, then you’d have a stronger case, but that’s not the same as saying it is consistent with his political career. That’s a different scenario.”

“But nothing precludes the judge from recusing herself based on optics,” Virelli said.

Bryant Miller Olive, the law firm the county hired to represent it in this case, has not yet requested recusal. Nor have any of the other litigants including the cities of Tampa, Plant City and Temple Terrace, the Hillsborough Area Regional Transit Authority or county constitutional offices.

The groups have until Dec. 17 to file such a request.