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Florida Judicial - DISQUALIFICATION
Third DCA denies petition for writ of prohibition seeking to disqualify successor judge. [Added 5/19/23]
Dario and Flavia Carnevale filed a petition for writ of prohibition seeking disqualification of the trial judge from 3 cases in which they were parties. “The Carnevales argue that the trial judge exhibited bias due to certain social media postings evincing a friendly relationship with a proposed third-party intervenor, Michael Feldman, Esq., and his counsel, as well as by allowing Mr. Feldman to participate in hearings without having been formally added as a party.”
The Third DCA denied the petition. “Preliminarily, we hold that the motions to disqualify were properly denied as a matter of law because the Carnevales already successfully moved to disqualify a previous trial judge on this same basis earlier in the litigation. A party may not seek a second disqualification of a successor judge except in such instance where the party demonstrates actual bias or prejudice.”
The court further pointed out that “the Carnevales’ petitions contain mischaracterizations of facts and procedural history that undermine their claims of judicial bias and would support denial of the petitions on the merits.” Consequently, “contrary to the Carnevales’ recitation of the facts, the record reveals the trial court made the best of a messy situation and attempted to provide notice and an opportunity to be heard to all impacted parties. To the extent the Carnevales – or any other party – objected to the procedure employed by the court, the remedy does not lie in seeking to recuse or disqualify the trial judge.” Carnevale v. Shir, __ So.3d __(Fla. 3d DCA, Nos. 3D22-190, 3D22-1999, 4/26/2023), 2023 WL 3081989.
NOTE: The court reached a similar result in Carnevale v. Rogenia Trading, Inc., __ So.3d __(Fla. 3d DCA, Nos. 3D22-190, 3D22-1999, 4/26/2023), 2023 WL 3081989.
Supreme Court rules that trial court erred in denying convicted criminal defendant’s motion to disqualify judge from presiding over postconviction proceedings. [Added 4/17/23]
Judge was assigned to preside over the postconviction proceedings involving Convicted Criminal Defendant. Defendant moved to disqualify judge “due to the appearance of impropriety and actual bias.” Judge denied the motion as legally insufficient. Defendant petitioned the Florida Supreme Court. The Court treated the petition as a motion for writ of prohibition and granted it.
Judge had presided over the trial of a convicted mass murderer, Cruz. Defendant’s motion alleged that Judge has been accused of misconduct in the Cruz case that showed against the defense. For example, immediately after the sentencing in the Cruz case Judge left the bench and still wearing her judicial robe, exchanged hugs with members of victims’ families and with prosecutors – including Klinger, who is also the prosecutor in Defendant’s case. The motion further alleged that at a status hearing in Defendant’s case Judge asked Klinger how he was doing.
The Supreme Court pointed out that the standard for determining the legal sufficiency of a motion to disqualify a judge “is whether the facts alleged, which must be assumed to be true, ‘would place a reasonably prudent person in fear of not receiving a fair and impartial trial’” (citation omitted). A showing of actual bias or prejudice is not required.
In concluding that the motion to disqualify Judge was legally sufficient and should have been granted, the Court summarized: “The crucial facts that together were sufficient to create such a well-founded fear are the hugging of ASA Klinger by Judge Scherer – in the court room while still wearing a robe – at the conclusion of the Cruz murder case, and the personal exchange between Judge Scherer and ASA Klinger two days later, during Tundidor’s postconviction proceedings, in which the judge commiserated with Klinger.” Tundidor v. State, __ So.3d __ (Fla., No. SC2022-1732, 4/13/2023), 2023 WL 2920534.
Third DCA denies petition for writ of prohibition seeking disqualification of successor judge. [Added 3/28/23]
The mother in a paternity action filed a motion to disqualify a successor judge. (The mother, who had filed seven prior motions to disqualify, had succeeded in having at least one judge disqualified from the case.) The successor judge denied the motion. The mother petitioned the Third DCA for a writ of prohibition.
The Third DCA denied the petition after reviewing the ruling for an abuse of discretion (King v. State, 840 So.2d 1047 (Fla. 2003)). The alleged grounds for disqualification derived from findings in the trial court’s 56-page order granting the mother a significantly lower amount of fees than she requested. “In the order, the court characterized the parties’ historically acrimonious relationship, described the mother’s writing style as “histrionic,” and found the mother was directing the litigation strategy. The mother argues these findings reveal gender bias by the judge, in large part because the word ‘histrionic’ is derived from the Greek term ‘hysteria,’ meaning uterus. Putting aside the etymology of the word ‘histrionic,’ its contemporary definition is not suggestive of gender, and the complained-of findings are all tethered to factual and legal determinations regarding the disputed authorship of documents and the ensuing compensability of fees Viewed as a whole, the order merely recounts the protracted case history and takes both parties equally to task for their participation in years of purported scorched earth litigation.” (Footnotes omitted.) Delgado v. Miller, __ So.3d __ (Fla. 3d DCA, No. 3D22-1826, 2/22/2023), 2023 WL 2146325.
Fourth DCA grants petition for writ of prohibition and orders judge disqualified after judge had denied disqualification motion as legally insufficient. [Added 3/13/23]
Former Husband (“Husband”) filed a petition for upward modification of alimony. After a lengthy period with no action on the petition, the trial court entered an order requiring mediation. Former Wife (“Wife”) moved to vacate the mediation referral order and to dismiss Husband’s petition. Wife’s motion was set on the court’s August 16 motion calendar. The day before the scheduled hearing, Husband moved to compel mediation and for an award of fees. There was no indicatgion the hearing would be an evidentiary one.
Both motions were heard on August 16. The trial court noted Wife’s absence from an earlier hearing and found: “[I]t is undisputed that, Former Wife’s office scheduled the August 16, 2022 hearing while the Former Husband’s counsel was out of the office ill with COVID-19 and thereafter kept the hearing date when informed that Former Husband’s counsel was and is ill with COVID-19 against the Florida Bar Mental Health and Wellness initiative and The Florida Bar professional expectations.”
The court granted Husband’s motion for fees and to compel mediation, and denied Wife’s motion. Wife moved for rehearing on the ground that the “order ‘rubber stamped’ a proposed order” drafted by Husband’s counsel and submitted ex-parte to the judge. Wife also alleged the trial court made evidentiary findings at a non-evidentiary hearing. After the court denied Wife’s motion, she filed a motion to disqualify the judge. The judge denied the disqualification motion as legally insufficient.
Wife petitioned the Fourth DCA for a writ of prohibition, seeking to disqualify the judge. The appellate court granted the petition.
Wife asserted that she feared that she would not receive a fair trial, pointing to the following: “(1) ex parte communications by virtue of Former Husband submitting a proposed order to the trial court without also serving it on Former Wife; (2) the judge’s ‘rubber stamping’ of Former Husband’s proposed order, adopting the language verbatim; and (3) the judge making evidentiary findings at a hearing noticed as a ‘scheduling hearing.’” These grounds were legally sufficient.
The court noted that the Supreme Court “has recognized that ‘[n]othing is more dangerous and destructive of the impartiality of the judiciary than a one-sided communication between a judge and a single litigant.’ Rose v. State, 601 So.2d 1181, 1183 (Fla. 1992).” Further, the 4th DCA has observed out “that the trial court’s failure to allow a party the opportunity to review an opposing order before issuing that order constitutes egregious error. Santini v.Cleveland Clinic Fla., 65 So.3d 22, 39 (Fla. 4th DCA 2011).” Erren v. Marin, __ So.3d __ (Fla. 4t DCA, No. 4D22-2515, 3/8/2023), 2023 WL 2395418.
Third DCA grants petition for writ of prohibition because motion to disqualify trial judge was legally sufficient and should have been granted. [Added 2/9/23]
A party in a civil case moved to disqualify the trial judge, alleging that “the trial court ordered relief that was not sought by either party and ordered the guardian ad litem and respondent to report acts of two of the parties’ minor children to the police.” The judge denied the motion as legally insufficient. The movant petitioned the Third DCA for a writ of prohibition.
The appellate court granted the petition. “‘To be legally sufficient, a motion to disqualify must demonstrate some actual bias or prejudice so as to create a reasonable fear that a fair trial cannot be had.’ . . . Treating the allegations of fact contained in the motion to disqualify as true, as we must, we conclude that disqualification is warranted.” (Citations omitted.) Saenz v. Sanchez, __ So.3d __ (Fla. 3d DCA, No. 3D22-1688, 2/1/2023), 2023 WL 1424736.
Fourth DCA quashes order denying motion to disqualify trial judge. [Added 1/17/23]
City and Apartments were litigating a dispute over allegedly unpaid water bills. City had back-billed Apartments after discovering a defective meter that allegedly caused underbilling from 2011 to 2016. Apartments has been current on its payments otherwise.
A predecessor judge had entered summary judgment in City’s favor. Judge held a hearing to consider Apartment’s request to compel City to reconnect water service that City had shut off. “Apartments argued that no final judgment had been entered determining the amount it owed, City failed to give proper notice of its intent to disconnect the water, and the disputed amounts concerned a period from 2011-2016, but all other bills were paid.”
A status hearing was held the following day. Judge stated that no motions were pending, but also indicated that she intended to appoint a receiver because she believed Apartments had been collecting rents that included amounts for water without paying City for the water. Judge further commented to Apartments’ counsel that counsel “may want to talk to your clients about” the fact that Judge was considered a referral to the state attorney’s office.
Apartments moved to disqualify Judge, contending that “the judge’s comments showed that the judge had prejudged the case before hearing the evidence” and that Judge’s comments regarding criminal referral to the state attorney’s office “caused Apartments to fear that it would not receive a fair trial.” After Judge denied the motion, Apartments petitioned the Fourth DCA for a writ of prohibition.
The appeals court granted the petition and ordered Judge disqualified. Judge’s “consideration of the receiver amounted to a determination on an issue not before the court. . . . Most significantly, however, the trial judge threatened the party with criminal investigation several times. That alone would cause a party to fear that the trial judge was biased against it, and the party could not receive a fair trial.” (Citation omitted.) Hollywood Park Apartments West, LLC v. City of Hollywood, __ So.3d __ (Fla. 4th DCA, No. 4D22-1523, 1/11/2023), 2023 WL 151312.
A “recitation of adverse rulings” by itself is not sufficient to demonstrate bias or prejudice warranting judge’s disqualification. [Added 10/28/22]
Petitioner sought a writ of prohibition from the Third DCA, seeking to disqualify the trial court after its motion to disqualify the judge was denied as legally insufficient. The appellate court denied the petition. The motion to disqualify “alleged nothing more than adverse judicial rulings.” The court noted that “it is a ‘well-settled principle that the laws governing judicial disqualification were never intended ‘to enable a discontented litigant to oust a judge because of adverse rulings made,’’ for such rulings are reviewable otherwise. . . . It naturally follows that a recitation of adverse rulings, without more, is insufficient to demonstrate the requisite bias or prejudice necessary to support disqualification.” (Citation omitted.) N. I. Nitof, Inc. v. Unknown Heirs of McCartney, __ So.3d __ (Fla. 3d DCA, No. 3D22-1387, 9/30/2022), 2022 WL 4587368.
Supreme Court rules that harmless error test applies when convicted criminal defendant claims on appeal that trial court erroneously denied motion to disqualify judge. [Added 10/2/22]
Judge Jacobsen was presiding over defendant Davis’s trial. The judge was leaving the division and Judge Harb was assigned to replace him. Judge Harb had been a prosecutor in the homicide division of the State Attorney’s Office while Davis’s case was pending. Davis moved for Judge Jacobsen to stay on the case; the State opposed the motion. Judge Harb attending the hearing on the motion, which was presided over by Judge Jacobsen. The prosecution’s argument included factual information about Judge Harb. Davis’s motion was denied.
When Judge Harb took over the case, Davis moved to disqualify him under F.S. 38.10 and F.R.Jud.Admin. 2.330(e)(1), alleging he feared he would not get a fair trial. Judge Harb denied the motion.
Davis was tried and convicted. He moved for a new trial, contending that some of Judge Harb’s rulings showed bias. The motion for new trial was denied. Davis appealed, seeking reversal on the ground that Judge Harb wrongfully denied the motion for his disqualification. The Second DCA concluded that the motion to disqualify was legally sufficient and should have been granted. The appeals court reviewed the erroneous denial of disqualification for harmless error and affirmed. The court certified the following question to the Florida Supreme Court as one of great public importance: “WHEN A DEFENDANT IN A CRIMINAL CASE ASSERTS IN AN APPEAL FROM A JUDGMENT AND SENTENCE THAT THE TRIAL COURT ERRONEOUSLY DENIED A LEGALLY SUFFICIENT MOTION TO DISQUALIFY THE TRIAL JUDGE FOR ALLEGED BIAS OR PREJUDICE UNDER [F.S.] 38.10 AND [FLA.R.JUD.ADMIN.] 2.330(D)(1), SHOULD AN APPELLATE COURT REVIEW THE ERRONEOUS DENIAL FOR HARMLESS ERROR AND, IF SO, WHAT HARMLESS ERROR TEST SHOULD THE APPELLATE COURT APPLY?” Davis v. State, 311 So.3d 927, 946 (Fla. 2d DCA 2020).
The Florida Supreme Court accepted jurisdiction and reversed the conviction.
The Court agreed that the motion to disqualify was legally sufficient and should not have been denied. The Court also agreed that the harmless error test, rather than a per se rule, applied. The proper harmless error test is set forth in State v. DiGuilio, 491 So.2d 1129 (Fla. 1986). “Applying the test laid out in DiGuilio, we cannot say that ‘there is no reasonable possibility that the error contributed to the conviction.’ 491 So.2d at 1135. While presiding over this case, Judge Harb made several consequential decisions that could have altered the outcome of the trial.” The correctness of those rulings was not at issue – rather, the question is “whether the error alleged by Davis – the denial of his legally sufficient motion for disqualification – had a reasonable probability of contributing to his conviction. Right or wrong, the rulings we have discussed here meet that threshold.”
Two justices concurred in the result, but would have applied a per re standard to the error. Davis v. State, __ So.3d __ (Fla., No. SC20-1282, 9/8/2022), 2022 WL 4102697.
Third DCA dismisses petition for prohibition seeking disqualification of judge based on judge’s tone of voice and manner. [Added 9/6/22]
Parties in a breach of trade secrets case (“Movants”) filed a motion to disqualify the trial judge. Movants alleged that at a hearing on a discovery dispute the judge “was acting as though [Movants] were the ‘bad guys’ by his tone and by imposing a demand for document production that was never requested by the defendants.” The motion was denied as legally insufficient. Movants petitioned the Third DCA for a writ of prohibition.
The appellate court dismissed the petition “because the trial court’s statements bearing on the requested discovery do not evince any pre-judgment of [Movant’s] case.” The court summarized the relevant law regarding the disqualification motion, stating: “The facts as stated in the motion to disqualify are not sufficient to require disqualification. The motion and attached affidavit base their assertions on the trial judge’s ‘tone of voice’ and manner. Instead, a litigant seeking to disqualify a judge must ‘allege specifically the facts and reasons upon which the movant relies as the grounds for disqualification.’ Fla. R. Gen. Prac. and J. Admin. 2.330(c)(2) (emphasis added). The facts must be stated with sufficient specificity that the trial court in the first instance, or a reviewing court on writ of prohibition, is able to determine whether they would cause a reasonable litigant to fear the trial court was prejudiced. See Jackson v. State, 599 So.2d 103, 107 (Fla.1992). General assertations and subjective reactions to the judge’s conduct, however, will not warrant relief. Krawczuk v. State, 92 So. 3d 195, 201 (Fla. 2012).” NexusVC v. Hieg Partners, LLC, __ So.3d __ (Fla. 3d DCA, No. 3D22-635, 7/20/2022), 2022 WL 2821514.
Allegation that opposing law firm co-hosted judicial fundraiser for judge during contested re-election campaign, coupled with adverse rulings in case, are not legally sufficient to warrant judge’s disqualification. [Added 8/30/22]
Movant filed a motion to disqualify the trial judge, alleging that the opposing counsel’s law firm co-hosted a judicial fundraiser for the judge during a contested, ongoing re-election campaign and also pointed to adverse rulings and scheduling difficulties. The opposing firm “was the first listed firm [of sixteen] that hosted a [single] re-election fundraising event for the [j]udge” that occurred several months before the adverse rulings and scheduling difficulties. The trial court denied the motion. Movant petitioned for a writ of prohibition, which the Third DCA denied.
The appellate court noted that it is not uncommon for lawyers to make statutorily-compliant financial contributions to judicial campaigns and that doing so “of itself, does not create an appearance of impropriety or a disqualifying conflict.” See MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332 (Fla. 1990). The citizens of Florida have chosen to elect trial court judges, and the Code of Judicial Conduct “effectively insulates judges from solicitation activities.” The court observed that there is a nuanced but critical distinction between contributions and “[m]ore extensive involvement” in a contested judicial election. In this case, Movant’s allegations “without more, viewed against our precedent, compel the conclusion that the motion for disqualification was legally insufficient.” Cini v. Cabezas, __ So.3d __ (Fla. 3d DCA, No. 3D22-0716, 8/10/2022), 2022 WL 3221465.
Judge disqualified for making comments indicating she prejudged case. [Added 8/15/22]
Movant filed a motion to disqualify the trial judge. When the motion was denied, Movant petitioned the Fifth DCA for a writ of prohibition. The appellate court granted the petition. “[T]he the motion to disqualify alleged that the trial judge made specific comments, before evidence was ever introduced in the case, that would put a reasonably prudent person in well-founded fear of not receiving a fair or impartial hearing. While a trial judge may form mental impressions and opinions during the course of a hearing, he or she may not, as it appears the presiding judge did here, prejudge the case.” A.L.P. v. State, __ So.3d __ (Fla. 5th DCA, No. 5D22-1566, 7/15/2022), 2022 WL 2762137.
Judge disqualified for statements raising reasonable belief that he prejudged parties’ entitlement to attorney’s fees. [Added 8/8/22]
Chmilarski sued insurer Empire for alleged failure to pay a claim. The case was litigated for 9 years. The parties filed cross-motions for summary judgment. At the hearing, the trial court “noted that she anticipated receiving motions for attorney’s fees after she ruled on the motions.” At that time neither party had filed a motion for fees.
The court’s order on the summary judgment motions also contained language relating to possible future fee claims. The language at issue stated: “The Court finds for purposes of any subsequent attorney’s fees claim that neither party has significantly prevailed on the issues raised in the course of this case and the Court further notes that, should either party move for attorney’s fees, the Court reserves its right, sua sponte, for the first time in 29½ years on the bench, to show cause why Fla. Stat. §57.105 should not be applied to either party for the nature and character of the litigation over the past five years.”
Chmilarski then filed a motion to disqualify the trial judge, which the judge denied as legally insufficient. Chmilarski then petitioned the Third DCA for a writ of prohibition.
The appellate court granted the motion, agreeing with the petitioner that the judge had prejudged the issue of entitlement to attorney’s fees. “Frankly, we do not see how the language could be interpreted in any other way. . . . Undoubtedly, a reasonable, prudent person reading this order could only conclude that the trial court had prejudged the question of the petitioners’ entitlement to attorney’s fees – even though the matter was not yet pending before the court.” Chmilarski v. Empire Fire and Marine Ins. Co., __ So.3d __ (Fla. 3d DCA, No. 3D22-611, 6/15/20-22), 2022 WL 2135751.
Third DCA orders judge disqualified due to ex parte communication. [Added 7/12/22]
Petitioner was the defendant in a wrongful death action filed by Respondent. The case was assigned to a circuit court judge (the “prior-presiding judge”). During the pendency of the case that judge was transferred to the criminal division and a successor judge took over. Petitioner’s counsel was contacted by the prior-presiding judge’s assistant to schedule a hearing on a motion for clarification of an order entered by the prior-presiding judge before leaving the case. Petitioner objected because the case was now assigned to the successor judge. The assistant then stated that “she had been notified that the parties had requested that [the prior judge] reassert his jurisdiction of the case.”
Petitioner filed a motion to disqualify the prior-presiding judge, alleging that the judge had improper ex parte communication with Respondent’s counsel and that Petitioner was “never privy to any request or communication regarding any attempt to bring this action back before a judge now serving in the Family Division.” The prior-presiding judge denied the motion and conducted a hearing.
Petitioner filed a petition for writ of certiorari in the Third DCA. The appellate court granted the petition. When a motion to disqualify a judge is based on ex parte communication with a party, the key is not whether the objecting party has been prejudiced but whether the judge’s impartiality remains beyond question. The appeals court rejected Respondent’s argument that the communication concerned only scheduling and thus was permissible. “[T]he ex parte contact went beyond the administrative scheduling of a hearing and ventured into merits-based communication concerning the prior-presiding judge’s retention of this case after having been transferred out of the division, and after the successor judge in the civil division had proceeded in the case.”
Petitioner had also filed a second disqualification motion alleging that the prior-presiding judge “had improperly commented on the merits of the first disqualification motion at the hearing on the motion for clarification.” The prior-presiding judge denied that motion, but the denial was entered one day after the Third DCA entered a show-cause order that stayed the proceedings in the trial court. Petitioner sought relief, and the appellate court quashed the order. “Because the trial court lacked jurisdiction to enter an order while our stay was in place, the order is a nullity.” Menada, Inc. v. Arevalo, __ So.3d __ (Fla. 3d DCA, No. 3D21-0773, 3D21-945, 6/29/2022), 2022 WL 2335920.
Judge disqualified because his order denying motion for disqualification went beyond addressing legal sufficiency of motion. [Added 6/30/22]
Judge was presiding over Defendant’s DUI case. Defendant filed a motion to disqualify Judge from the case. The motion described Judge’s “participation in a Christian faith-based organization” and described “political and religious statements” that Judge had made on topics “such as socialism, no fault divorce, and abortion.” The motion stated that Defendant was “objectively fearful this Court is biased and prejudiced against cases like his that involve alcohol.”
Judge entered an order denying the disqualification motion as legally insufficient. The order, however, “went beyond simply finding the motion to be legally insufficient and did so in a manner which addressed the merits of the motion.” Defendant filed a petition for a writ of prohibition, which the Second DCA granted.
The appellate court noted that it [took] no issue with the trial court’s denial of the motion for disqualification where the allegations of [Defendant’s] motion appear to be legally insufficient. And had the order only answered the question of legal sufficiency, our inquiry would terminate here.” Florida Rule of General Practice and Judicial Administration 2.330(h) “states that the court ‘shall not pass on the truth of the facts alleged [in the motion]. . . . No other reason for denial shall be stated, and an order denying the motion shall not take issue with the motion.’” In the court’s view, however, Judge’s order went further: “instead, he made extraneous comments challenging the allegations in the motion as to his religious beliefs and, in supporting his decision to deny as to the merits of the motion, linking the allegation in the motion by analogy to other cases where facts and their intersection with various religious tenets held by judges resulted in critical examination of that interrelation.” Wagner v. State, __ So.3d __ (Fla. 2d DCA, No. 2D21-3703, 6/3/2022), 2022 WL 1814330.
Judge’s referral of litigant’s lawyer to Local Professionalism Panel did not disqualify judge from case. [Added 6/1/22]
During a discovery hearing Judge observed that litigant Mongelli’s counsel appeared to be unnecessarily angry. Consequently, Judge referred the lawyer to the Local Professionalism Panel (“LPP”) “for assistance in anger management and counseling in professionalism.” Mongelli petitioned for a writ of prohibition to disqualify Judge, alleging that the referral to the LPP “has resulted in a ‘well-founded fear’ that the judge does not trust his counsel and will now look ‘with suspicion’ on every position that counsel takes.” (Citations omitted.)
The Second DCA denied the petition and declined to disqualify Judge. The court explained: “Although Mongelli equates the referral of his counsel to a local professionalism panel for discourtesy with a challenge to his counsel’s integrity or ethics, we emphasize that they are not the same. The judges of this state have a responsibility to promote courtesy and professionalism in their courts. The Florida Code of Judicial Conduct mandates that judges ‘participate in establishing, maintaining, and enforcing high standards of conduct,’ ‘require order and decorum in proceedings before the judge,’ and require lawyers subject to their discretion and control to be ‘patient, dignified, and courteous.’ Fla. Code Jud. Conduct, Canons 1, 3B(3), 3(B)(4). Accordingly, a trial court judge may refer a lawyer perceived as discourteous to a local professionalism panel without concern that he or she, by that action alone, will be subject to disqualification. Cf. 5-H Corp. v. Padovano, 708 So. 2d 244, 248 (Fla. 1997) (‘[A] Florida judge's mere reporting of perceived attorney unprofessionalism to The Florida Bar, in and of itself, is legally insufficient to support judicial disqualification.’).” Mongelli v. Florida Health Sciences Center, Inc., __ So.3d __ (Fla. 2d DCA, No. 2D21-3577, 5/27/2022), 2022 WL 1694890.
Third DCA grants writ of prohibition to disqualify trial judge. [Added 1/14/22]
Petitioners sought a writ of prohibition after their motion to disqualify the trial judge was denied, arguing that the judge’s comments caused them to fear that they would not receive a fair and impartial trial. The Third DCA granted the writ.
Even if the judge’s comments were not intended to reflect his view as to the merits of the claims in the case, disqualification is based not on the judge’s intent but on how the message is perceived. A judge may form mental impressions during a trial but may not pre-judge the case. The appeals court stated “[i]t is clear from the transcript that the trial judge heard and saw evidence regarding the incident, but only Respondent’s evidence. The trial judge’s comments concerning that evidence, made before the petitioners even had an opportunity to present their argument “‘could reasonably be interpreted to mean that the judge had crossed that line from forming mental impressions to prejudging the issue.’” 1440 Plaza, LLC v. New Gala Bldg., LLC, 314 So. 3d 555, 557 (Fla. 3d DCA 2020) (quoting Barnett v. Barnett, 727 So. 2d 311, 312 (Fla. 2d DCA 1999)).” The judge’s comments “could reasonably have caused petitioners to fear that they would not receive a fair and impartial trial.” Milan v. Fanning, __ So.3d __ (Fla. 3d DCA, No. 3D21-2042, 12/22/2021), 2021 WL 6055865.
Postconviction claim judge disqualified from presiding over petitioner’s application for sentence review filed pursuant to Fla.R.Crim.P. 3.802. [Added 12/31/21]
A juvenile offender (“Petitioner”) filed a postconviction application for sentence review pursuant to Fla.R.Crim.P. 3.802. Petitioner moved to disqualify the postconviction judge. After the motion was denied, Petitioner sought a writ a prohibition.
The Fifth DCA granted the petition. In order to rule on an application for sentence review, the court must consider a list of factors including “whether the juvenile offender demonstrates maturity and rehabilitation, whether the juvenile offender remains at the same level of risk to society as he or she did at the time of the initial sentencing, and whether the juvenile offender has shown sincere and sustained remorse for the criminal offense.”
Before the hearing on Petitioner’s application, however, the judge made two statements warranting disqualification because they would reasonably cause a litigant to fear that the judge predetermined the appropriate sentence. “First, the presiding judge stated that the Petitioner is ‘an older, dedicated unrepentant rapist [who is] driven to sexually offend [and who] has a low possibility of rehabilitation.’ Second, the presiding judge stated that Petitioner ‘is and will remain as long as he lives, irredeemably incorrigible.’” Mediate v. State, __ So.3d __ (Fla. 5th DCA, No. 5D21-2277, 11/19/2021), 2021 WL 5405310.
First DCA denies writ of prohibition as “fatally flawed on its face” where petitioner failed to move to disqualify judge below. [Added 11/15/21]
Melvin petitioned the First DCA for a writ of prohibition to prevent the trial judge from continuing to preside over his case below. The appellate court denied the petition “as fatally flawed on its face” because Melvin had not moved to disqualify the judge. “A facially sufficient motion for disqualification and an erroneous denial of that motion must be pleaded as a basis to grant prohibition relief.” (Citation omitted.) Melvin v. Progressive Select Ins. Co., __ So.3d __ (Fla. 1st DCA, No. 1D21-2294, 10/6/2021), 2021 WL 4592091.
In granting writ of prohibition to disqualify judge for bias against movant’s counsel, Third DCA distinguishes between “initial” counsel and “substitute or additional” counsel for purposes of applying Fla.R.Gen.Prac. & Jud.Admin. 2.330(f). [Added 11/11/21]
In a paternity case, defendant Vialva represented himself for the first 6 months. He then hired Lawyer to represent him, and shortly thereafter moved to disqualify the trial judge based on comments the judge made about Lawyer in a prior case that would warrant disqualification under the case law. Nunez responded by contenting that recently-adopted subsection (f) of Fla.R.Gen.Prac. & Jud.Admin. 2.330 prohibited Vialva’s alleged attempt to hire Lawyer “with full knowledge of the assigned Judge” and seek disqualification. The trial court denied the motion to disqualify. Vialva petitioned the Third DCA for a writ of prohibition.
The appellate court denied the petition. The court noted that rule 2.330(f) only applied to “new substitute counsel or additional counsel in a case” (emphasis by court). Lawyer was Vialva’s initial counsel, not a substitute or additional counsel, and so the rule did not apply. “Because the Rule prohibits motions to disqualify based on prejudice only against substitute or additional counsel, by implication it does not prohibit motions based on prejudice against initial counsel. We are interpreting a rule, not drafting one.”
The court further observed that, “[t]he distinction that both the Rule and the case law makes between motions to disqualify based on initial counsel (allowed) and additional or substitute counsel (disallowed) reflects the great deference our law gives to a party’s right to choose his or her counsel, at least initially.” Vialva v. Nunez, __ So.3d __ (Fla. 3d DCA, No. 3D21-1292, 10/6/2021), 2021 WL 4561369.
Petition for writ of prohibition to disqualify trial judge denied because disqualification motion failed to identify “precise date” at which movant discovered concern with judge. [Added 9/7/21]
Petitioner’s motion to disqualify a trial judge was denied as legally insufficient. Petitioner sought a writ of prohibition in the First DCA. The appellate court denied the petition.
Regardless of whether Petitioner had grounds for his disqualification motion (a well-founded fear of not receiving a fair and impartial trial), Petitioner had failed to comply with Fla.R.Gen.Prac.& Jud.Admin. 2.330(g). This rule requires the movant to file the disqualification motion ““within a reasonable time not to exceed 20 days after discovery by the party or party’s counsel, whichever is earlier, of the facts constituting the grounds for the motion” and to identify the “precise date” when the facts constituting the grounds for the motion were discovered by “the party or the party’s counsel, whichever is earlier.” (Emphasis by court.)
Petitioner’s motion was filed “months after the trial judge was assigned” and included the “precise date” only of when Petitioner’s counsel became aware of the pertinent facts. The motion did not identify precisely when Petitioner became aware of facts that would support disqualification. Accordingly, the motion was legally insufficient. R.J. Reynolds Tobacco Co. v. Coxwell, __ So.3d __ (Fla. 1st DCA, No. 1D21-1454, 8/20/2021), 2021 WL 3700458.
Even though petition for writ of prohibition seeking to disqualify judge was erroneously dismissed as moot, on second-tier certiorari Fifth DCA denies prohibition because erroneous dismissal not miscarriage of justice. [Added 8/3/21]
Law Firm moved to disqualify a county court judge. The motion was not granted. Law Firm then petitioned the circuit court sitting in its appellate capacity for a writ of prohibition. The circuit court dismissed the petition as moot because the judge had been reassigned and no longer was the presiding judge. Law Firm then petitioned the Fifth DCA for a review of the order on second-tier certiorari. The court granted the petition.
The circuit court erroneously dismissed the original petition as moot, because the prior judge’s rulings could be vacated or amended by the successor judge. See Fla.R.Gen.Prac.&Jud.Admin. 2.330(j). Nevertheless, the DCA denied relief to the petitioner. The standard for second-tier certiorari review is whether “there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Combs v. State, 436 So.2d 93, 96 (Fla. 1983).
That standard was not met in this case. The court reviewed the orders issued by the judge in question and concluded: “Simply stated, none of these orders entered by the now-reassigned county court judge that were adverse to the Firm, even if somehow erroneous, were of such significance to have resulted in the requisite miscarriage of justice necessary to support the issuance of a second-tier writ of certiorari.” Marcin Lewandowski, P.A. v. Fleming, __ So.3d __ (Fla. 5th DCA, No. 5D20-2747, 7/9/2021), 2021 WL 2877950.
Motion to disqualify trial judge properly denied as “meritless.” [Added 7/21/21]
In domestic litigation Wife filed a motion to disqualify the trial judge. After the motion was denied Wife petitioned the Fifth DCA for a writ of prohibition, claiming that the judge’s questioning at a hearing on her motion for continuance indicated bias in favor of Husband and that the judge “violated her due process rights by denying that motion to continue and failing to grant her request for temporary attorney’s fees.”
The Fifth DCA denied the petition. Wife’s bias claim was “meritless.” The court observed that her petition “cherry picks portions of the transcript yet fails to acknowledge that the excerpts are taken out of order,” and also fails to provide context. Further, the judge’s remarks “do not form the basis for a well-founded fear that Wife cannot receive a fair trial or hearing before Judge , or that he is biased or prejudiced against her or her attorney.”
Wife’s due process argument also was rejected. Wife had already had multiple continuances, including ones involving her current counsel. “This case, involving only the equitable distribution of the parties’ assets and Wife’s claim for alimony, has languished in the system for over six-and-a-half years . . . When a lawyer steps into a case in this posture, he or she should expect to proceed to trial immediately. If that is unacceptable, he or she should not take the case. To claim a violation of due process under such circumstances, without any supporting authority, is frivolous at best.” (Footnote omitted.) Merino v. Powell, __ So.3d __ (Fla. 5th DCA, No. 5D21-1237, 6/25/2021), 2021 WL 2600808.
Judge disqualified due to allegations that she prejudged credibility of party’s expert witness. [7/11/21]
Father moved to disqualify a trial judge from further presiding over his termination of parental rights case. The motion was denied. Father petitioned for writ of prohibition.
The Third DCA granted the petition. Father had alleged that, “at the permanency hearing, drawing on extrajudicial knowledge, the trial court prejudged the credibility of an expert witness central to his future trial.” The appellate court recognized that judges in the relatively informal dependency proceedings “routinely encounter the same experts,” but pointed out that judicial neutrality and the appearance of judicial neutrality were important to the integrity of legal process and that it was “essential that the factors impacting the assessment of the credibility of an expert be derived solely from the record of the proceedings.” Accordingly, Father’s allegations were sufficient to create a well-founded fear of not receiving a fair trial and supported disqualification of the judge. R.H. v. Dept. of Children and Families, __ So.3d __ (Fla. 3d DCA, No. 3D21-0784, 6/1/2021), 2021 WL 2447821.
Judge who filed bar complaint against party’s counsel disqualified from presiding over party’s case. [Added 4/27/21]
Alvarez filed for divorce from Afanasiev and sought a domestic violence injunction. Alvarez’s lawyer, Torres, advised the court by letter that she wished to withdraw, indicating that she had an ethical concern. The court granted the motion and Alvarez hired new counsel.
Afanasiev moved for involuntary dismissal of the domestic violence action, claiming that the allegations against him were fraudulent and “speculated that Torres’s withdrawal was tied to Torres’s concerns about Alvarez’s fraudulent allegations against him.” The court denied the motion but later dismissed the domestic violence due to insufficiency of the evidence.
Several months later Afanasiev filed a malicious prosecution suit against Alvarez and her current counsel, alleging that they persisted in perpetrating a fraud on the court. Afanasiev filed motinos in the divorce case and the domestic violence case to disqualify the trial court, asserting that the judge would be a material witness in the malicious prosecution matter. The judge summarily denied the motions to disqualify.
Less than a month later Alvarez moved to have the malicious prosecution case transferred to the family law division and have the divorce case judge preside over it. The motion was granted. Afanasiev then filed an emergency motion to stay, alleging that the judge “had appeared as a spectator” at the Zoom hearing on the transfer motion. That allegation turned out to be erroneous, and Afanasiev’s counsel retracted the assertion.
Afanasiev moved to disqualify the judge from the malicious prosecution case. The judge summarily denied the motion. On the same day, however, the judge filed a complaint with the Florida Bar regarding 3 of Afanasiev’s lawyers. Afanasiev then filed a petition for writ of prohibition with the Third DCA seeking to disqualify the judge on 2 grounds: (1) the judge erred in denying his prior motion, because the judge will be a material witness in the malicious prosecution case; and (2) the judge was biased against Afanasiev and his counsel, as shown by the filing of the bar complaint.
The appeals court granted the petition and ordered the judge disqualified. The argument that disqualification was warranted because the judge would be a material witness in the malicious prosecution case was rejected by the court. The court, however, did conclude that disqualification was required due to the filing of the bar complaint. The court discussed 2 cases cited by the parties. Afanasiev argued that the case was controlled by Kline v. JRD Management Corp., 156 So.3d 812 (Fla. 1st DCA 2015), and Alvarez relied on 5-H Corp. v. Padovano, 708 So.2d 244 (Fla. 1997), as controlling. The Third DCA viewed Kline as more relevant.
The court concluded: “The trial court filed her Bar complaint against all three of Afanasiev’s counsel of record based on the mistake of one of them, a mistake that occurred in this Court. It appears that she gave little weight to the immediate retraction or the apology by the attorney who committed the mistake. Her Bar complaint explicitly focuses on counsels’ veracity and ties it to breaches of ethics. We do not question the trial court’s intentions or sincerity, or her right to protect her own integrity and the integrity of the judicial system. We do not criticize her for filing the Bar complaint. But her pending Bar complaint against Afanasiev’s counsel establishes, in the three cases below, cumulatively and objectively, a factual foundation that supports disqualification. The ethical breaches described in the Bar complaint concern untruthfulness and raise the prospect of a courtroom in which the judge distrusts the lawyer.” (Emphasis by court.) Afanasiev v. Alvarez, __ So.3d __ (Fla. 3d DCA, Nos. 3D20-1556, 3D20-0803, 3/31/2021), 2021 WL 1201433.
In denying writ of prohibition, Third DCA reiterates that adverse rulings do not constitute legally sufficient grounds for judge’s disqualification. [Added 3/15/21]
A party to a civil case filed a motion to disqualify the trial judge. After the judge denied the motion as legally insufficient, the movant petitioned the Third DCA seeking a writ of prohibition. The appellate court denied the petition, stating that the motion for disqualification “alleges nothing more than adverse judicial rulings.”
The court wrote “only to reiterate the well-settled principle that the laws governing judicial disqualification were never intended ‘to enable a discontented litigant to oust a judge because of adverse rulings made,’ but, instead, serve ‘to prevent his [or her] future action in the pending case.’ . . . Consequently, mere recitations of adverse rulings, without more, do not constitute the requisite bias or prejudice necessary to support disqualification.” (Citations omitted.) Vazquez v. Smith, __ So.3d __ (Fla. 3d DCA, No. 3D21-0370, 2/3/2021), 2021 WL 357885.
First DCA denies petition for writ of certiorari seeking to disqualify trial judge from pending DUI cases. [Added 2/17/21]
County Court Judge assigned to several DUI cases wrote an email to the State Attorney’s Office offering his interpretation of F.S. 316.656, titled “Mandatory adjudication; prohibition against accepting plea to lesser included offense.” Counsel for several DUI defendants learned of Judge’s email and moved to disqualify Judge. Judge denied the motion as legally insufficient.
Defendants sought a writ of prohibition in circuit court. The circuit court denied the petition, ruling that in the email Judge “did not reference any specific cases pending in his court. Instead, Judge  merely offered his general understanding of a particular statute’s meaning. Such generic statutory analysis does not demonstrate that Judge  has prejudged the facts of all DUI cases or that he has personally adopted a doctrinaire position on DUI charging and sentencing.”
Defendants then petitioned the First DCA for a second-tier writ of certiorari. The appellate court denied the petition. The court initially noted that “a district court should grant certiorari relief only when the circuit court, acting in its appellate capacity, has violated “a clearly established principle of law resulting in a miscarriage of justice.” Here, Defendants did not allege a failure to afford due process but contended that the circuit court failed to apply the correct law.
The First DCA disagreed. “[Defendants] alleged that the county court judge announced a policy as to which pleas he would accept in DUI cases through his email to the prosecutor. But the circuit court found that the judge announced no such policy and did not seek to direct the prosecutor on the appropriate procedures for reducing a DUI charge to reckless driving. Rather, the circuit court found that the email simply conveyed the judge’s interpretation of section 316.656 and was not sufficient to create a fear of bias or prejudice.” Mills v. State, __ So.3d __ (Fla. 1st DCA, Nos. 1D20-18, 1D20-26, 1D20-33, 1D20-35, 1D20-36, 12/31/2020), 2020 WL 7779004.
Judge’s comments sharing “interim mental impressions which are a natural part of the decision making process” not grounds for disqualification. [Added 1/22/21]
Petitioners moved to disqualify trial judge based on comments made during a 2-day evidentiary hearing on allegations by the opposing party that the Lawyers representing Client committed perjury. The trial court commented on aspects of the testimony and state that this made the court “question the veracity and truthfulness” of Client’s testimony.
Lawyers petitioned for a writ of prohibition to disqualify the judge, relying on case law holding that a judge’s commentary on the credibility of the petitioner before completion of the testimony is sufficient to raise a well-founded fear that the petitioner will not receive a fair trial. The Fourth DCA denied the petition, noting that the cases cited by Petitioner are “tempered by a further line of cases.” Those cases conclude that, although a judge may not prejudge a case, “it is well-settled that a judge may form mental impressions and opinions during the course of hearing evidence.” (Citations omitted.) The comments made by the judge were made after the 2 main witnesses had completed their testimony and “bore narrowly on the issue before the trial court, namely whether [Lawyers] had committed perjury in their answers to the interrogatory.” The judge also qualified his comments with a statement to the effect that he would continue listening to the testimony and would decide the matter after hearing all of the evidence. Accordingly, “a reasonably prudent person would understand that the trial court’s comments as no more than the sharing of the sort of interim mental impressions which are a natural part of the decision making process – and not as an indication that the trial judge had prejudged the case.” Shir Law Group, P.A. v. Carnevale, __ So.3d __ (Fla. 3d DCA, No. 3D20-1328, 12/2/2020), 2020 WL 7050228.
Order denying motion for postconviction relief vacated because trial court ruled on motion after judicial disqualification motion filed. [Added 12/9/20]
Convicted Defendant filed a motion for postconviction relief on May 29 and a motion to disqualify the trial judge on June 1. The court denied the postconviction relief motion on June 4 and the judicial disqualification motion on June 8. Defendant appealed.
The Fifth DCA vacated the order denying postconviction relief. While a motion to disqualify the judge is pending, the judge is not authorized to rule on any other pending motions. “The lower court erred when it ruled on Appellant’s postconviction motion while the motion to disqualify was pending.” Wilson v. State, __ So.3d __ (Fla. 5th DCA, No. 5D20-1343, 10/30/2020), 2020 WL 6370332.
Judge who criticized certain punitive damages laws was not disqualified as a result of those comments. [Added 11/10/20]
The judge presiding over a tobacco trial expressed criticism of certain punitive damages laws applicable to the resolution of the case. Seeking the judge’s disqualification, Plaintiff petitioned for a writ of prohibition from the Third DCA.
The appellate court denied the petition. The court pointed out that “judges are often called upon to – and do – uphold and enforce laws with which they might not be entirely in accord.” Although a judge might be “ill-advised” to express that view, “‘the fact that a certain statute or 3 principle of law may run counter to the personal views of a judge does not mean that he [or she] is disqualified to try a case involving such law or principle.’ [State ex rel. Sagonias v. Bird, 67 So.2d 678, 680 (Fla. 1953).]” The court viewed the judge’s comments as “a statement of philosophy, rather than a stated judicial policy.” After making the comments in question, the judge “affirmatively acknowledged that it was bound by the standards set forth in binding appellate decisions.” Accordingly, Plaintiff failed to show judicial bias. Gall v. Philip Morris USA Inc., __ So.3d __ (Fla. 3d DCA, No. 3D20-1262, 10/21/2020), 2020 WL 6154220.
Order denying disqualification of judge upheld despite assertion that entry of order for sequestration of rents discounted movant’s credibility. [Added 9/29/20]
Petitioner sought review of an order denying her motion to disqualify the trial judge. Petitioner had alleged that “by ordering the sequestration of rents, despite her affidavit she lacked a tenant, the trial court necessarily discounted her credibility.” The Third DCA denied the petition. The underlying order did not stem from bias, but was entered to efficiently resolve a pending motion and move the case along. “Accordingly, as disqualification ‘was never intended to enable a discontented litigant to oust a judge because of adverse rulings made, for such rulings are reviewable otherwise, but to prevent his [or her] future action in the pending cause,’ we deny prohibition.” (Citations omitted.) Magarino v. Bank of New York Mellon, __ So.3d __ (Fla. 3d DCA, No. 3D20-1092, 9/2/2020), 2020 WL 5223755.
Judge disqualified for actions creating fear of bias against party’s counsel. [Added 8/12/20]
An unmarried couple was engaged in a child custody dispute. Mother took the child and went to Pennsylvania, and Father filed a petition seeking return of the child to Florida. Mother hired lawyers Kaufman and Moss, who sought dismissal of Father’s petition. They also moved to allow Mother to appear for the scheduled hearing by telephone. The trial judge did not rule on the motion prior to the hearing, which Mother did not attend. Father’s counsel moved for a show cause order to hold Mother in contempt. The court granted the motion “without a verified pleading or taking any evidence.” The hearing was reset.
Prior to the next hearing Mother’s counsel moved to continue the hearing based in part on her virus-related travel concerns. The court did not rule on the motion before the hearing. Mother attended the hearing, where the court denied her motion to dismiss the petition.
A few days later lawyer Moss was representing another client before the same judge in unrelated proceedings. The judge “allegedly raised her voice and told Moss that Kaufman had filed a motion as a ‘ploy,’ had a ‘history of submitting motions at the last minute,’ that she had ‘instructed’ her staff ‘not to accommodate Kaufman,’ since he ‘plays games’ and ‘blames the court and her staff,’ and she was ‘tired of it.’” Mother then moved to disqualify the judge based on a fear that she would not receive an impartial hearing. The judge denied the motion as legally insufficient.
The Third DCA granted Mother’s petition for prohibition and ordered the judge disqualified. “In light of the trial judge’s prior, unexplained failures to rule on [Mother]’s motions for telephonic appearance, despite their colorable allegations, as well as her unsupported oral finding on [Mother]’s purported ‘refusal’ to travel to a hearing where no evidence was taken, her subsequent disparagement of counsel reasonably caused [Mother] to fear not only a lack of impartial proceedings in the future, but that she had already been penalized without knowledge or recourse.” Additionally, the appellate court noted that, “[t]he fact that the same trial judge properly granted an almost identical motion to disqualify in the proceedings where the statements were originally made buttresses our conclusion that disqualification is required here.” Murphy v. Collins, __ So.3d __ (Fla. 3d DCA, No. 3D20-0672, 7/22/2020), 2020 WL 4196656.
Court’s independent “active questioning” of party after both parties rested supported party’s claim of reasonable fear that court was biased against him and so required court’s disqualification. [Added 7/21/20]
A former wife (Wife) moved to hold the former husband (Husband) in contempt for allegedly failing to make alimony and other payments required under the marital settlement agreement. At the evidentiary hearing Wife’s counsel briefly questioned Husband about his failure to pay, which Husband “readily admitted on account of his purported inability to pay.” Husband testified on direct as to his inability to pay, and Wife’s counsel impeached his credibility on cross-examination by asking him about a large yacht that Husband claimed he no longer owned.
At that point the trial court began questioning Husband about his ability to pay. The court “was reminded that the parties had already rested and that neither party wished to ask any additional questions.” When the court nevertheless continued its inquiry, Husband’s counsel commented that he was concerned about the extent of the questions and that the court perhaps “was doing the job for the wife’s lawyers.”
After the hearing Husband filed a motion to disqualify the judge on the ground that the court’s “active questioning, after the parties had rested,” had given Husband a reasonable fear that the judge was biased against him. The trial court denied the motion as legally insufficient.
Husband petitioned for a writ of prohibition, which the Third DCA granted. The appellate court concluded that Husband’s allegations “are sufficient to place a reasonably prudent person in fear that he could not receive a fair and impartial hearing or trial because the court crossed the line into active participation in adversarial process.” The court noted that, “before the parties rested, no one elicited any evidence that would support a contempt order. The sole evidence relevant to the finding of present ability to pay, without which he could not be held in contempt, was generated directly by the court’s inquiry and requests for production, not only after the parties had both rested, but even after they had ceased following up on the court’s initial inquiry.” Even though a trial judge is permitted to ask questions of a witness, cases have held that “[t]he that a judge asks a disproportionally higher amount of questions of a witness on an issue than the parties do can also suggest biased and active participation.” Marwan v. Sahmoud, __ So.3d __ (Fla. 3d DCA, No. 3D19-1798, 6/17/2020), 2020 WL 3261139.
Second DCA rules that erroneous denial of motion to disqualify judge raised on direct appeal is subject to harmless error analysis, and certifies question to Supreme Court. [Added 7/14/20]
Criminal Defendant was being tried in a capital case. The case was set before Judge Jacobsen. A continuance was granted due to the lead prosecutor’s sudden illness. During the continuance Judge Jacobsen expected to leave the capital division to become chief judge, with Judge Harb taking over the case. Defendant sought Judge Harb’s disqualification on the ground that he “had been a prosecutor in the homicide division of the State Attorney's Office in the Tenth Circuit from August 2012 to March 2013 – after [Defendant] was indicted but while his case was pending.” Defendant filed a motion to disqualify under F.S. 38.10 and Fla.R.Jud.Admin. 2.330(d)(1). Judge Harb denied the motion as legally insufficient.
Defendant did not petition for a writ of prohibition. Instead, after being convicted, Defendant moved for new trial arguing that Judge Harb was actually biased in favor of the prosecution. The motion for new trial was denied. Defendant appealed, contending that Judge Harb wrongly denied his disqualification motion. He alleged “solely that the allegations of the disqualification motion Judge Harb denied were legally sufficient to show a reasonable fear that he would not receive a fair trial and thus to require that Judge Harb step off the case.”
The Second DCA affirmed. Applying F.S. 38.10 and Fla.R.Jud.Admin. 2.330(d)(1), the appeals court noted that the sworn allegations in the motion, assuming they were true, established that Defendant had an objectively well-grounded fear that he would not get a fair trial. Consequently, the disqualification motion “was legally sufficient and should have been granted.”
As to whether reversal of the conviction was automatically required, the court stated: “[W]e conclude that the denial of a legally sufficient disqualification motion is not per se reversible error.” Instead, the court applied a harmless error analysis. The court noted that “when we review the erroneous denial of a motion for disqualification at the end of the case – as distinguished from on a petition for a writ of prohibition – we can actually see how things played out after the denial and make determinations about whether the defendant’s right to a fair trial before an impartial judge was affected.”
The court summarized: “We hold that where a defendant in a criminal trial asserts the denial of a legally sufficient motion for disqualification based on alleged bias or prejudice as an error on direct appeal from a judgment and sentence, the error is reviewable for harmlessness. The harmless error test in those circumstances is whether the State has established that there is no reasonable possibility that the error denied the defendant a fair trial before an impartial judge.”
In addition, the court certified the following question to the Florida Supreme Court as one of great public importance: “When a defendant in a criminal case asserts in an appeal from a judgment and sentence the that trial court erroneously denied a legally sufficient motion to disqualify the trial judge for alleged bias or prejudice under [F.S. 38.01] and [Fla.R.Jud.Admin.] 2.330(d)(1), should an appellate court review the erroneous denial for harmless error and, if so, what harmless error test should the appellate court apply?” Davis v. Florida, __ So.3d __ (Fla. 2d DCA, No. 2D17-517, 6/3/2020), 2020 WL 2892550.
Third DCA discourages judges from filing responses to motions to disqualify them, pointing out that “safer practice” is to let Attorney General’s Office or Circuit Court General Counsel respond if necessary. [Added 6/24/20]
Petitioner filed motions to disqualify the trial judge. After the judge entered an order denying Petitioner’s fourth motion, Petitioner sought a writ of prohibition. The appellate court granted the petition, disqualifying the judge.
The court stated that the disqualification motion “might well” have been legally insufficient. The problem was that the judge “the trial judge personally filed a response which took issue with, and purported to refute, factual allegations in the underlying motion to disqualify. In doing so, the trial judge created an adversarial atmosphere and an independent basis for disqualification.”
In a footnote, the court pointed out that, although its standard order “permits the trial judge to file a response, such a response is rare” (emphasis by court). Typically, any needed response is filed on the judge’s behalf by Circuit Court’s Office of General Counsel or the Attorney General’s Office. The court noted that any response “should not attempt to refute the factual allegations asserted in support of the underlying motion” and suggested that “‘it is the safer practice for the judge to remain silent and let the adversarial party supply the response.’” (Citation omitted.) Rosen v. Tiffany of Bal Harbour Condo. Ass’n, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D20-688, 5/27/2020), 2020 WL 2745737.
Third DCA orders judge disqualified after judge denied motion to disqualify as legally insufficient. [Added 5/7/20]
Defense counsel represented a criminal defendant in a resentencing matter. When defense counsel went to the judge’s chambers on the morning of the hearing, she heard the judge viewing videos of the defense expert. Defense counsel told the prosecutor about this. At the hearing, both lawyers approached the bench. The judge acknowledged that he had been watching videos of the defense expert. Defense counsel then informed the judge that she would be filing a motion to disqualify the judge. When defense counsel stated that she would need a transcript before filing the motion and that she believe the rules gave her 10 days in which to file, the court stated: “You do what you need to do. It’s not a problem.”
The following day defense counsel was told to come to the judge’s courtroom for a status report. At that time the judge told defense counsel that she must file her motion by midnight that night. Defense counsel protested, arguing that the Rules of Judicial Administration gave her up to 10 days to file the motion and that she needed more time in which to prepare the motion. The motion to disqualify the judge was filed that day. The following day, the judge denied the motion as legally insufficient. Defense counsel petitioned the Third DCA for a writ of prohibition.
The appellate court granted the petition, ruling that the judge should be disqualified. “Here, in addition to the extra-record research conducted by the trial court, the unexplained and contradictory imposition of a same-day, less than twelve-hour deadline for filing a written motion to disqualify would cause any reasonably prudent person to fear that he would not receive a fair and impartial resentencing. The rules expressly permit ‘a reasonable time not to exceed 10 days.’ Indeed, on the day of the resentencing hearing, when the issue first arose, the trial court acknowledged to defense counsel that the resentencing hearing would be postponed to await the filing of the disqualification motion, and gave defense counsel the assurance that she would be permitted to file the motion within the ten-day time period provided by Rule 2.330. Nevertheless, at 1 p.m. the following day, and without explanation or reason, the trial court retracted this assurance and instead required the motion be filed by midnight. . . . The court’s insistence on an immediate filing despite the time permitted by the governing rule and his prior statements allowing the defense the time it needed created an objectively reasonable fear in [defendant] that he would not receive a fair and impartial resentencing.”
In a footnote, the appeals court pointed out that a same-day deadline for filing a motion to disqualify is not automatically problematic: “We do not suggest that the imposition of a same-day deadline for filing a motion for disqualification can never be objectively reasonable. Such a determination is necessarily fact-intensive and dependent upon the totality of the circumstances alleged. We merely hold that, under the totality of the circumstances alleged in the instant case and described in this opinion, [defendant]’s motion alleged a legally sufficient basis for an objectively reasonable fear that he would not receive a fair and impartial resentencing hearing.” Sawyer v. State, __ So.3d __ (Fla. 3d DCA, No. 3D20-356, 4/1/2020), 2020 WL 1540953.
Motion to disqualify judge should have been granted even though movant’s opponent strongly objected to facts alleged in motion. [Added 4/9/20]
Movant filed a petition to disqualify Judge. The motion alleged that the co-counsel of Movant’s litigation opponents “ recently served as an attorney representing the interests of [the judge], her husband and her son (or step-son) . . . in a high profile litigation with very high stakes.” Judge denied the motion. Movant petitioned the Fourth DCA for a writ of prohibition.
The appellate court granted the petition, even though Movant’s opponents “strongly object[ed]” to the facts alleged in the motion. The court stated that it was “not tasked with adjudicating the truthfulness of the facts in the motion; we are tasked only with determining whether those facts, if true, would create a fear in the mind of a reasonably prudent person of not receiving a fair and impartial trial. The facts alleged in [Movant’s] motion were sufficient, and disqualification was appropriate.” Ming v. NS FOA, LLC, __ So.3d __ (Fla. 4th DCA, No. 4D19-3477, 3/4/2020), 2020 WL 1041094.
Judge who had disqualified himself from all of a lawyer’s cases is disqualified from presiding over post-conviction hearing at which that lawyer will testify. [Added 3/26/20]
Criminal Defendant’s trial counsel was Lawyer. Defendant was convicted. He filed a motion for post-conviction relief and an evidentiary hearing was scheduled. Lawyer was to testify at the hearing. Judge was to preside at the hearing. Defendant alleged that the relationship between Lawyer and Judge had “deteriorated to such an extent that [Judge] entered an order disqualifying himself from all of [Lawyer’s] cases.” Defendant petitioned for a writ of prohibition, seeking to disqualify Judge from presiding at the hearing.
The Third DCA granted the petition. “Canon 3E(1)(a) of the [Florida] Code of Judicial Conduct requires disqualification when a judge ‘has a personal bias or prejudice concerning a party or a party’s lawyer.’ Because the trial judge, as the finder of fact, will make credibility determinations as to [Defendant’s] former counsel’s testimony at the hearing, we find that [Defendant] has established a reasonable fear that he will not receive a fair hearing.” Fernandez v. State, __ So.3d __ (Fla. 3d DCA, No. 3D20-177, 2/26/2020), 2020 WL 912946
Judge disqualified from dependency case based on alleged statements about credibility of child’s mother and family members. [Added 3/4/20]
The subject of a dependency proceeding filed a petition for writ of prohibition with the Third DCA seeking to have the trial judge disqualified. The appellate court agreed that disqualification was appropriate. “A review of the verified motion to disqualify demonstrates that it is legally sufficient. The judge’s commentary concerning the credibility of the petitioner and family members, before the completion of the petitioner’s direct examination or presentation of any witnesses in support of her case, is sufficient to create in a reasonably prudent person a well-founded fear that she would not receive a fair hearing before this judge.” (Citations omitted.) S.S. v. Department of Children and Families, __ So.3d __ (Fla. 3d DCA, No. 3D19-2525, 2/5/2020), 2020 WL 559147.
Third DCA rules that trial judge should be disqualified based on sanctions order against movant’s former counsel that allegedly implicated movant in the misconduct. [Added 2/5/20]
Samra, represented by the Bilzin law firm, sued Bedoyan. After Samra prevailed on liability, the case proceeded to a trial on damages. Bilzin moved to strike Bedoyan’s pleadings based on alleged misconduct by his attorneys, and Bedoyan countered with a motion to disqualify Bilzin based on their alleged misconduct. The original trial judge held a hearing, denied the motion, and thereafter disqualified himself sua sponte.
A successor judge took over the case. Bedoyan moved for reconsideration of the denial of his disqualification motion and also filed a motion for sanctions against Bilzin. Bilzin withdrew. The motion for sanctions remained pending, and the new judge held a 2-day evidentiary hearing at which Samra did not attend and his new counsel was not permitted to attend. The new judge then issued a 51-page order imposing sanctions against Bilzin. Samra alleged that the order’s findings “implicated Samra in the wrongdoing” and moved to disqualify the judge. The judge denied the motion.
The Third DCA granted Samra’s petition for writ of prohibition and disqualified the judge. Although adverse rulings or factual findings are not a ground for a judge’s disqualification, in this case “neither Samra nor his counsel was permitted to attend or participate in the hearing, Samra was afforded no opportunity to hear the testimony, review the exhibits, cross-examine the witnesses, or present a response or rebuttal to the evidence presented by Bedoyan at the hearing. Samra had no opportunity to contest, or defend against, the allegations of egregious misconduct or provide any argument or input prior to rendition of the trial court’s fifty-one-page order. Thus, Samra was effectively rendered a non-party to the very proceedings that led to the trial court’s findings of facts and imposition of sanctions. Further, a motion to strike Samra’s pleadings remains pending, and the allegations set forth in that motion overlap substantially with the allegations set forth in the prior sanctions motion against the Bilzin firm.” Samra v. Bedoyan, __ So.3d __ (Fla. 3d DCA, No. 3D19-2114, 1/15/2020), 2020 WL 216010.
Fourth DCA concludes that judge should not be disqualified based on judge’s Socratic questioning, testing hypotheticals, and comments about his rulings in other cases. [Added 1/15/20]
Plaintiff Personal Representative sued a corporation and its employee (“Defendants”) for alleged negligence in the operation of a motor vehicle that resulted in a deadly accident. The employee ran a red light while talking on a hands-free cell phone. Plaintiff claimed that the corporation was aware that the employee regularly talked on the cell phone while driving on corporation business. Over Defendants’ vigorous opposition, the trial judge granted Plaintiff’s motion to add a claim for punitive damages. Defendants moved to disqualify the judge based on certain comments at the hearings on the punitive damages claim, alleging that “the court was biased against their cell phone policy and the use of cell phones while driving.” The judge denied the motion as legally insufficient, and Defendants petitioned for a writ of prohibition.
In a lengthy opinion the Fourth DCA denied the petition. The opinion detailed the questions asked and comments made by the judge, as well as the context in which they occurred. The appeals court outlined the applicable principles, noting that although a judge mayl be disqualified when the judge has prejudged a case without allowing argument, denied due process, or made gratuitous prejudicial remarks. However, adverse rulings alone (in that case or a prior case) are not sufficient grounds for disqualification, and “a judge may form mental impressions and opinions throughout the course of the case so long as the judge does not prejudge the case.”
The court summarized: “In light of these principles, the comments made by the trial judge do not warrant disqualification. All the comments at the hearing on the motion to amend were directed to the issue of whether the use of cell phones while driving, and a policy to permit such use, could provide a reasonable showing to support a claim for punitive damages. Every allegedly objectionable statement made was relevant to the issue and showed that the judge engaged in a Socratic questioning method to analyze the issue. At no point did the court cut off the defense argument or disparage the argument or defense counsel, although it was apparent that the judge did not agree with it. The court clearly did not deny defense counsel the opportunity to argue his case and the legal issues involved. Mere mental impressions or opinions formed in the progress of argument do not require disqualification.” The court determined that “none of the judge’s comments either individually or collectively show bias or prejudice on behalf of the judge which would prevent [Defendants] from receiving a fair trial.” Publix Super Markets, Inc. v. Olivares, __ So.3d __ (Fla. 4th DCA, No. 4D19-2202, 1/8/2020), 2020 WL 88819.
Admonishing defense counsel in front of jury does not result in judge’s disqualification. l[Added 1/7/20]
Criminal Defendant was on trial for sexual battery. During the state’s direct examination of the victim, Defendant stood up at the request of his lawyer. The judge directed Defendant to sit down, then cut defense counsel short when he tried to explain. After the examination concluded, at a conference outside the presence of the jury defense counsel stated that the court’s demeanor in front of the jury was “troubling” because the court had “yelled” at Defendant, showing the court’s “anger.” Defense counsel added, however, that he did not think it affected the outcome of the trial.
After the jury returned a guilty verdict, Defendant moved to disqualify the judge. The motion was denied as legally insufficient. Defendant’s motion for new trial was also denied. Defendant appealed.
The First DCA affirmed. Reproving defense counsel in open court does not, of itself, constitute reversible error. The appeals court concluded “that the trial court properly denied [Defendant’s] motion for disqualification. The court’s admonishment was directly related to an unanticipated event – standing in the courtroom – that disrupted an ongoing trial. As the court explained, it issued the reprimand in an effort to maintain order. . . . Even if the court raised its voice, the court’s attempt to control the courtroom did not give rise to a reasonable fear that the court was biased and that [Defendant] would not receive a fair trial.” Koelemij v. State, __ So.3d __ (Fla. 1st DCA, No. 1D18-3432, 12/10/2019), 2019 WL 6709126.
Judge who recently issued lengthy sanctions order against law firm in one case disqualified from 3 other pending cases in which law firm is involved. [Added 11/21/19]
Law Firm represented Clients in litigation presided over by Judge. After convening a multi-day evidentiary hearing in that case, Judge handed down “a detailed, fifty-one page sanctions order [against Law Firm] in an unrelated case.” The order imposed sanctions against the individual attorney of record and Law Firm, concluding that “Law Firm ‘[r]epeatedly made unsubstantiated, false, and defamatory allegations in sealed documents and in open court,’ violated the Rules of Professional Conduct, misused attorney-client privileged communications, and participated ‘in a scheme to bring [fabricated criminal] charges.’”
After receiving the sanctions order, Law Firm moved to disqualify Judge in the pending cases in which it was representing Clients, alleging that “they harbored a well-founded fear that, based upon the findings articulated within the sanctions order in the unrelated case, they will not receive a fair trial. Judge denied the motions. Law Firm petitioned for a writ of prohibition from the Third DCA.
The appellate court granted the petition. Under Florida law, adverse rulings or the “mere reporting of perceived . . . unprofessionalism” is insufficient to support judicial disqualification. This matter, however, went beyond that. “[I]n the midst of protracted litigation, petitioners received the sanctions order, penned by the judge slated to serve as the arbiter in their current disputes. The order was rendered after the Law Firm became embroiled in the suits below, as a party to one dispute, and as counsel of record in the remaining two cases. The court signed the order in close temporal proximity to hearings in the underlying cases. The decision deduced that the Law Firm engaged in treacherous conduct, including lying and fabricating allegations of a criminal conspiracy. Further, the tribunal was expansive in the scope of its findings of deceit, equally condemning the actions of the Law Firm and the individual attorney of record.” (Footnotes omitted.)
Accordingly, Law Firm had shown that it and its Clients had a well-founded fear that they would not receive a fair trial if Judge presided over their cases. JJN FLB, LLC v. CFLB Partnership, LLC, __ So.3d __ (Fla. 3d DCA, Nos. 3D19-1875, 3D19-1876, 3D19-1948, 11/6/2019), 2019 WL 5778033.
Judge who did not disclose that he had been represented in his own divorce 3 years ago by party’s lawyer is disqualified from divorce case. [Added 10/2/19]
Judge was presiding over a divorce case. About 3 years prior, Judge was represented in his own contested divorce by Wife’s counsel. Judge did not disclose this on the record. Husband’s counsel learned about it and filed a motion to disqualify Judge, alleging that Husband was concerned that Judge might have a bias in favor of Wife’s counsel and that Husband had a reasonable fear that he would not get a fair trial. Judge denied the motion as legally insufficient. Husband petitioned the Third DCA for a writ of prohibition.
The appellate court granted the petition, ruling that Judge should be disqualified. The Commentary to Canon 3E(1) of the Florida Code of Judicial Conduct states that a judge “should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.” In this case, Judge made no such disclosure. The court was of the view that disclosure was required, where one of the lawyers in a contested divorce case had represented Judge in his own similar case 3 years before. “[E]ven if the trial judge genuinely believes no bias exists, reasonable people might consider such prior representation relevant to the issue of the trial judge’s impartiality.” Accordingly, the court concluded that “the husband’s alleged fears of bias and of not receiving a fair trial were objectively reasonable given the trial judge’s prior attorney-client relationship with the wife’s attorney in a divorce proceeding and the trial judge’s failure to disclose the relationship to the former husband.”
The court emphasized that it was not adopting a blanket rule of disqualification in these situations or suggesting any actual lack of impartiality on Judge’s part, but was stating that it is “incumbent upon the trial court to disclose a prior attorney-client relationship with an attorney.” Becker v. Becker, __ So.3d __ (Fla. 3d DCA, No. 3D19-1493, 9/18/2019), 2019 WL 4458397.
Judge who recused himself from case due to “family relationship” with defendant is disqualified from another case brought by different plaintiff against same defendant. [Added 9/5/19]
Lawyer represents Plaintiff in a lawsuit against Defendant, who is a county sheriff. Lawyer also represents other clients in other pending suits against Defendant. The trial judge recused himself from one of those other cases because of his “family relationship” with Defendant. Lawyer then moved to disqualify the judge in Plaintiff’s case. The motion was denied. Lawyer then petitioned the Fourth DCA for a writ of prohibition.
The appellate court granted the petition. “Where a judge has recused himself because of a personal relationship with a party or attorney, that relationship is sufficient to require recusal a short time later when brought to the judge’s attention by motion. . . . ‘‘Any time a judge feels it is necessary to recuse himself from an attorney’s case on account of an overriding friendship with the attorney then he should do so in all, not just some of that attorney’s cases.’’ . . . The same principle applies where a judge recuses himself because of his relationship to a defendant.” [Citations omitted.] Rosales v. Bradshaw, __ So.3d __ (Fla. 4th DCA, No. 4D19-1082, 8/28/2019), 2019 WL 4049518.
Judge disqualified for announcing how he would rule on motion to stay if party filed it. [Added 8/23/19]
Petitioners moved to intervene. The trial judge denied the motion, but also stated that he expected Petitioners to file a motion to stay “because everything gets appealed” and stated that he would deny the motion if Petitioners filed it. As the Third DCA put it, the judge “denied a non-existent motion.”
Petitioners sought to disqualify the judge based on the judge’s comments. The Third DCA agreed. “’[A] judge’s announced policy or predisposition to rule in a particular manner is grounds for disqualification.’ . . . We agree with Petitioners that these remarks, made in the absence of any motion or evidence, are sufficient to leave Petitioners with an objectively reasonable fear they will not receive a fair trial.” (Citations omitted.) Real State Golden Investments Inc. v. Larrain, __ So.3d __ (Fla. 3d DCA, No. 3D19-1369, 8/21/2019), 2019 WL 3938272.
Petition for habeas corpus granted in part because trial judge who found petitioner guilty of indirect criminal contempt should have disqualified herself. [Added 8/14/19]
In a child custody action, Judge issued an order to show cause to the father’s current wife (“Petitioner”) relating to a violation of Judge’s order directing the father to keep information about the case off of social media. Petitioner was a non-party to the action and had not been served with the order. Ultimately Judge found Petitioner guilty of indirect criminal contempt and sentenced her to 5 months in county jail. Petitioner filed for a writ of certiorari, which the appellate court treated as a petition for writ of habeas corpus.
The Second DCA granted the petition and ordered Petitioner released. Among the reasons why the trial court erred was the fact that Judge “should have disqualified herself because the contempt conduct involved disrespect and criticism of the judge. [Fla.R.Crim.P.] 3.840(e) provides that a trial judge must disqualify herself if the charged contempt ‘involves disrespect to or criticism of’ the judge. ‘[T]he purpose of the rule is to assure that a person cited for a contempt of court which involved a criticism of a judge, would not be tried on the contempt charge before the judge who was the subject of the criticism.’” In re: Weiner, __ So.3d __ (Fla. 2d DCA, No. 2D19-1413, 8/7/2019), 2019 WL 3673282.
Motion to disqualify trial judge in tobacco case should have been granted where movants alleged that judge had “recent and extensive involvement” in similar cases against movants or related parties. [Added 5/29/19]
Tobacco Defendants in an Engle progeny case filed a motion to disqualify Trial Judge. Judge denied the motion. Defendants petitioned for a writ of prohibition. Noting that the motion to disqualify was legally sufficient, the First DCA granted the petition.
Defendants alleged facts that would place a reasonably prudent person in fear of not getting a fair and impartial trial. Among other things, Defendants alleged: in the 8 years before his 2017 appointment to the bench, Judge appeared as counsel of record for plaintiffs in 19 cases where Defendants were being sued; Judge was trial counsel in 5 of those cases, including one in which , the jury returned a $17 million verdict, including $11 million in punitive damages; in another of the cases, Judge was co-counsel with a firm representing the plaintiff in the instant case; and Judge deposed corporate representatives of Defendants or their predecessors in interest for use in Engle progeny trials, which raised the possibility that the jury in the instant case could hear from Judge as both presiding judge and an examining lawyer.
The appeals court observed that the fact alleged, which must be taken as true in reviewing the denied of the motion for disqualification, “are legally sufficient to create a well-founded fear that [Defendants] would not receive a fair and impartial trial.” R.J. Reynolds Tobacco Co. v. Cuddihee, __ So.3d __ (Fla. 1st DCA, No. 1D19-0385, 5/6/2019), 2019 WL 1986206.
Trial court’s statement that allegations in judicial motion to disqualify were baseless went beyond what is permitted under Fla.R.Jud.Admin. 2.330(f). [Added 4/2/19]
Petitioner filed a motion to disqualify the trial judge, which the judge denied. Petitioner then sought a writ of prohibition. The Fifth DCA granted the petition and quashed the order denying disqualification. The appellate court found that the facts alleged in the motion would place a reasonably prudent person in fear of not receiving a fair and impartial trial. Further, the Fifth DCA found “that the trial court’s statement that the allegations in the motion were factually baseless went beyond a determination of the legal sufficiency of the motion, contrary to the procedure set forth in Florida Rule of Judicial Administration 2.330(f).” Poirier v. Poirier, __ So.3d __ (Fla. 5th DCA, No. 5D19-394, 3/15/2019), 2019 WL 1212787.
Judge disqualified in 12 tobacco cases after disclosing ex parte communication with plaintiff’s counsel in another tobacco case about common “hot button” issue. [Added 2/21/19]
In an Engle progeny tobacco case referred to as the “Calloway” case, the trial judge (“Judge”) disclosed on the record to the parties (see Florida Code of Judicial Conduct Canon 3E(1)) that he has known one of the Calloway plaintiffs’ counsel (Hammer) in for 30 years. Judge further stated that he spoke to Hammer in the past week about a case that Hammer had in front of another judge, including that judge’s “thought concerning consolidations.” The issue of consolidations in Engle progeny cases is somewhat of a “hot button” topic.
Based on Judge’s disclosure, defendants moved to disqualify Judge from the Calloway case. Judge denied the motion, and the defendants petitioned for a writ of prohibition. The following day they moved to disqualify Judge in 15 other Engle progeny cases on the same grounds alleged in the Calloway case. Judge promptly denied the motions in 12 of the cases. Hammer was not the attorney of record in those cases.
In Calloway the Fourth DCA issued an order to show cause why disqualification should not be granted. While that matter was pending, Judge disqualified himself “of [his] own initiative.” He then granted the disqualification motions in the 3 remaining cases.
Defendants petitioned for a writ of prohibition to prevent Judge from presiding over the 12 cases in which he had denied disqualification motions. In addition to the disclosure in Calloway, defendants argued that Judge “has demonstrated bias by entering a sua sponte order of disqualification in the Calloway case at a time during which the trial court did not have jurisdiction to enter such an order, by handpicking the successor judge for that case, and by pushing the Calloway case to trial within three days after the entry of the disqualification order.”
After issuing a show cause order and considering the responses, the Fourth DCA granted the petition and ordered Judge disqualified in the 12 cases at issue.
Canon 3B(7) prohibits many ex parte communications by a judge, including communications such as the one that occurred in the Calloway case. The appeals court noted, however, that an ex parte communication by a judge “is not, per se, a ground for disqualification as a matter of law.” (Citation omitted.) Rather, “in the context of ex parte communications, the motion to disqualify must demonstrate prejudice by establishing that the impartiality of the trial judge is not ‘beyond question.’”
In reaching its decision, the Fourth DCA was “guided by the principle” that the trial judge’s decision must be overturned when the appellate court is unable to determine if that decision was harmless because it was based on communications outside the record. Here, Judge’s did not provide sufficient details regarding his ex parte communication with Hammer to permit the appeals court to “conclude there was no prejudice because ‘[t]he impartiality of the trial judge [is] beyond question.’” (Citation omitted.) It was not known what information was discussed by Hammer about consolidation, “which appears to be a hot button issue in Engle progeny cases.”
The court went on to express its concern about the actions taken by Judge after the ex parte communication, stating: “We are very troubled by the fact that in the Calloway disqualification order, the trial judge ignored our stay order and directed that the Calloway case be transferred to another judge, specifically named, and that the scheduled trial was to begin on a specific date.”
Accordingly, under the “unique facts” of the case, the appellate court overturned Judge’s order denying disqualification in the 12 cases because Judge “permitted an ex parte communication on an important topic involving Engle progeny cases and we cannot determine that [Judge’s] actions were harmless. . . . We further conclude that the unique facts of this case demonstrate that ‘the appearance of impropriety so permeated the proceeding[s] below as to justify a suspicion of unfairness, mandating reversal.’” (Citations omitted.) R.J. Reynolds Tobacco Co. v. Alonso, __ So.3d __ (Fla. 4th DCA, No. 4D18-2444, 2/6/2019), 2019 WL 459173.
Second DCA orders county court judge disqualified based on petitioners’ “well-founded fear that they would not receive a fair proceeding.” [Added 12/14/18]
Petitioners were represented by Lawyer on their civil traffic infractions in county court. A hearing officer approach Lawyer and told him that the officer “was talked to” and would no longer be as lenient as he had been in the past. Seeking more information, Lawyer made a public records request for all emails relating to traffic court from a certain county Judge. Upon receiving and reviewing the emails, Lawyer thought there has been “inappropriate conduct” on the part of the clerk’s office and Judge with regard to the handling of traffic matters.
Shortly after he got the emails, Judge questioned Lawyer in open court about why he had requested the emails. Subsequent to that incident, all of the cases of Lawyer’s clients were transferred from their original docket to a “special docket” assigned to Judge.
Lawyer moved to disqualify Judge from presiding over the cases. Judge denied the motion as legally insufficient. Petitioners sought a writ of prohibition, which the circuit court denied on the ground that the “allegations are those of adverse judicial rulings, and pure speculation as to the reasons why the county judge met with the hearing officer, the content of that meeting, or why the docket was transferred.” Petitioners then petitioned the Second DCA for a writ of certiorari.
The Second DCA granted the petition, ruling that Judge should be disqualified. While “the allegations suggesting the county judge's tough stance on traffic defendants and noting his prior adverse rulings may not have been sufficient in themselves to show bias,” Petitioners alleged more. They “also alleged that the county judge instructed the hearing officer to be less lenient on traffic defendants and that the county judge believed that drivers in the county were aggressive. Moreover, the petitioners alleged that the county judge inquired why counsel requested the judge’s emails and that soon thereafter, [Petitioners’l cases were removed from their original docket and transferred to the docket of [Judge]. These allegations combined were sufficient to give [Petitioners] an objective fear that they would not receive a fair trial before [Judge] in their traffic cases.” Pena v. State, __ So.3d __ (Fla. 2d DCA, No. 2D17-4465, 11/9/2018), 2018 WL 5851361.
Resolving conflict between DCAs, Supreme Court rules that allegation that trial judge is Facebook “friend” of lawyer in case is not sufficient of itself to constitute ground for judge’s disqualification. [Added 11/7/18]
Law Firm sued a former client (USAA) for breach of contract and fraud. Law Firm accused one of USAA’s executives of witness tampering, and suggested that he is a potential witness and potential defendant. USAA hired an ex-judge (Lawyer) to represent the executive. Law Firm moved to disqualify the trial judge (Judge) on the ground that Lawyer was a “friend” on Judge’s personal Facebook page. Law Firm’s client claimed to have a well-founded fear of not getting a fair trial. Judge denied the disqualification motion.
The Third DCA denied Law Firm’s petition for writ of prohibition, agreeing with the position expressed by the Fifth DCA in Chace v. Loisel, 170 So.3d 802 (Fla. 5th DCA 2014), and concluding that a Facebook “friendship,” standing alone, was not a sufficient ground for the judge’s disqualification. Law Offices of Herssein and Herssein, P.A. v. United States Auto. Ass’n, 229 So.3d 408 (Fla. 3d DCA 2017). The Third DCA acknowledged conflict with Domville v. State, 103 So.3d 184 (Fla. 4th DCA 2012).
By a 4-3 vote the Florida Supreme Court approved the Third DCA’s decision and disapproved Domville.
The relevant standard for judicial disqualification is whether the facts alleged would put a reasonably prudent person in fear of not receiving a fair and impartial trial. Under Florida law, “an allegation of mere friendship between a judge and a litigant or attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification.” Mere friendship does not, without more, signify the type of “inherently close or intimate relationship” with a judge that would warrant disqualification.
After discussing Facebook and Facebook “friendship,” the Court stated: “A Facebook ‘friend’ may or may not be a ‘friend’ in the traditional sense of the word. But Facebook ‘friendship’ is not – as a categorical matter – the functional equivalent of traditional ‘friendship.’ The establishment of a Facebook ‘friendship’ does not objectively signal the existence of the affection and esteem involved in a traditional ‘friendship.’ Today it is commonly understood that Facebook ‘friendship’ exists on an even broader spectrum than traditional ‘friendship.’ Traditional ‘friendship’varies in degree from greatest intimacy to casual acquaintance; Facebook ‘friendship’ varies in degree from greatest intimacy to ‘virtual stranger’ or ‘complete stranger.’” Consequently, the Court concluded: “[T]he mere existence of a Facebook ‘friendship’ between a judge and an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship. No reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are Facebook ‘friends’ with a relationship of an indeterminate nature.”
The Court went on to point out that its conclusion was in accord with the majority position on the issue. The Florida Supreme Court Judicial Advisory Ethics Committee has previously issued advisory opinions that take the minority position. See, e.g., JEAC Opinion 2009-20. The Court commented that the Committee’s “position simply cannot be reconciled with this Court’s longstanding treatment of disqualification motions based on mere allegations of traditional ‘friendship.’”
Three justices dissented. Law Offices of Herssein and Herssein, P.A. v. United States Auto. Ass’n, __ So.3d __ (Fla., No. SC17-1848, 11/15/2018), 2018 WL 5994243.
Motion for writ of prohibition dismissed as moot because judge whose disqualification was sought left bench before petition was ruled on. [Added 6/28/18]
A worker’s compensation claimant and her lawyer (Petitioners) moved to disqualify a Judge of Compensation Claims (JCC) in 3 different cases. The JCC denied one motion as legally insufficient. Petitioners sought a writ of prohibition from the First DCA. Before the appeals court could rule on the petition, the JCC left the bench. The appeals court stayed the proceedings below. When that happened, Petitioners moved for clarification regarding the stay. Petitioners argued that the First DCA should “reverse all of the prior JCC’s interlocutory orders upon which they base their claims of bias.”
The First DCA disagreed and dismissed the petition for writ of prohibition as moot. “The fact that the prior JCC will no longer preside over Petitioners’ cases renders a petition to disqualify him unnecessary.” Further, “[b]ecause a writ of prohibition is preventative, not corrective, it should not be used as a substitute for an appeal.” Chaviano v. Greater Miami Caterers, Inc., __ So.3d __ (Fla. 1st DCA, No. 1D17-3029, 6/22/2018), 2018 WL 3079346.
Third DCA declines to disqualify judge from multiple cases in which parties are represented law firm with which judge’s election opponent practices. [Added 6/11/18]
Incumbent Judge presides over cases in the civil division. A lawyer (“Attorney Candidate”) has filed as the sole opponent of Judge in the upcoming election. The firm with which Attorney Candidate practices (“Law Firm”) represents clients in a number of cases pending before Incumbent Judge. Attorney Candidate is not counsel of record for any of these parties. Law Firm filed motions to disqualify Incumbent Judge based on the allegation that, due to the fact that Attorney Candidate is in the firm that represents them in cases before Incumbent Judge, the movants are concerned that the facts resulted in “inherent bias or prejudice” on the part of Incumbent Judge against both the movants and Law Firm. Incumbent Judge denied the motions. Movants then petitioned the Third DCA for a writ of prohibition to disqualify the judge.
The Third DCA denied the petition. The court noted that this was “a case of first impression in Florida insofar as the candidacy of the Attorney Candidate is sought to be imputed by the movants to all members of the Law Firm as a basis for disqualification of the Incumbent Judge.” While some authorities address the issue of disqualification of a judge when the judge’s election opponent personally represents a party in a case before the judge, nothing in the record indicates that Attorney Candidate personally represents any of the movants. Florida law presumes that a judge will be impartial, and no cases have “imputed the candidacy of a member of a law firm to every member of that firm as a legally sufficient basis to rebut and overcome the presumption of impartiality (and requiring disqualification of the incumbent judicial opponent on that basis).”
Further, after an extensive review of Judicial Advisory Ethics Opinions, the court concluded that the opinions “establish a broad principle of imputation applicable to lawyers in a law firm in which a particular lawyer has established a substantial personal or campaign-related tie to an incumbent judge. We find much less authority in the opinions regarding the opposite side of the electoral campaign – the incumbent judge’s obligations when members of the opposing candidate’s firm (but not the individual opposing candidate) represent parties in cases pending before the judge.”
Ultimately the court rejected the “per se rule proposed by the petitioners,” noting that “its presumption of ‘inherent bias or prejudice,’ could disincline eligible attorneys in large firms to enter contested judicial elections against an incumbent.” Sands Pointe Ocean Beach Resort Condominium Ass’n, Inc. v. Aelion, __ So.3d __ (Fla. 3d DCA, No. 3D18-755, 6/6/2018), 2018 WL 2708724.
Judge who recused himself after trial but before sentencing did not commit reversible error by refusing to disclose details underlying recusal. [Added 3/30/18]
After Defendant was convicted, the trial judge announced that he was recusing himself. The prosecution and defense filed a joint motion requesting that the judge “provide specific findings to explain the recusal.” Although the judge denied the request for specific findings, he noted that a conflict of interest had arisen after trial but that it was not relevant to any post-trial motions. The new judge sentenced Defendant to life.
Defendant appealed, contending – without citing to authority – that the original judge “committed reversible error by failing to articulate specific reasons for his recusal.” The First DCA disagreed and affirmed. Fla.R.Jud.Admin 2.330 “provides that “[n]othing in this rule limits the judge’s ability to enter an order of disqualification on the judge’s own initiative.” And although there may be reasons a judge would explain his or her recusal, nothing in the rule compels it.” Williams v. State, __ So.3d __ (Fla. 1st DCA, No. 1D17-0149), 2018 WL 1415494.
Court did not err in denying motion to disqualify judge in contentious family law case. [Added 3/27/18]
Erlinger (wife) and Federico (husband) engaged in contentious, protracted divorce litigation. Erlinger was found to be in non-compliance with the court’s child timesharing plan. Federico moved to hold Erlinger in contempt, and she responded with a motion to modify the temporary parenting plan. The court granted Federico’s motion for contempt and denied Erlinger’s motion to modify. After the hearing Erlinger moved to disqualify the trial judge for comments he made during the hearing. The judge denied the motion, and the First DCA denied Erlinger’s petition for writ of certiorari without elaboration.
Ultimately an amended final judgment of dissolution was entered, and the court also imposed sanctions against Erlinger “for repeatedly and vindictively withholding timesharing throughout the course of the proceedings in violation of the court-ordered timesharing plan.” Erlinger appealed on various grounds. The First DCA affirmed, writing to address only her allegation that the court erred in not granting her motion to disqualify.
Erlinger asserted that the following comments and conduct by the judge demonstrated grounds for disqualification: “(1) interrupting Erlinger’s cross-examination of Federico and making several comments, including ‘you just do what you want;’ (2) loudly sighing and shaking his head during Erlinger’s testimony; and (3) becoming an active participant in the proceedings by interrupting opposing counsel’s cross-examination of Erlinger ‘to question and comment openly’ on her testimony.” Additionally, Erlinger contended that the court’s “highly questionable rulings” showed bias.
The First DCA rejected all of these arguments. The “‘you just do what you want” statement was a permissible characterization of the judges’ observation that Erlinger repeatedly defied court orders. The complaints about “sighing and shaking” of the head were not grounds for disqualification. “Erlinger’s allegations regarding the judge’s non-verbal expressions represent only a subjective fear and do not provide a well-founded fear of prejudice.” Erlinger failed to specifically identify the conduct in question. Finally, it has long been held that adverse rulings are not grounds for a judge’s disqualification. Erlinger v. Federico, __ So.3d __ (Fla. 1st DCA, No. 1D17-248, 3/15/2018), 2018 WL 1342065.
Improper service not sufficient reason to deny motion to disqualify judge. [Added 11/8/17] -- Baker v. State, __ So.3d __ (Fla. 1st DCA, No. 1D17-1702, 10/31/2017), 2017 WL 4891645.
Trial judge who is Facebook “friends” with lawyer representing person who is potential witness and potential party not disqualified. [Added 9/8/17] -- Law Offices of Herssein and Herssein, P.A. v. United States Auto. Ass’n, __ So.3d __ (Fla. 3d DCA, No. 3D17-1421, 8/23/2017), 2017 WL 3611661. NOTE: See Law Offices of Herssein and Herssein, P.A. v. United States Auto. Ass’n, __ So.3d __ (Fla., No. SC17-1848, 11/15/2018), 2018 WL 5994243.
Judge of Compensation Claims disqualified because, in another case, judge stated that claimant’s lawyer was not credible and disqualified himself. [Added 8/11/17]
Claimant in a workers’ compensation case filed a motion to disqualify the Judge of Compensation Claims (“JCC”). Claimant alleged that he believed the JCC was prejudiced against him because he was prejudiced against Claimant’s lawyer. In another case, the JCC had found that representations made by the lawyer in a motion were not credible. In that case, the JCC granted a motion to disqualify him. In the instant case, however, the JCC denied the motion as legally insufficient.
The First DCA granted Claimant’s petition for a writ of prohibition and ordered the JCC disqualified. Although the statement in question was aimed at Claimant’s lawyer, rather than at Claimant, “as an indication of a bias which may create a party’s fear of not receiving an impartial hearing, there is no appreciable difference.” Lowman v. Racetrac Petroleum, Inc., __ So.3d __ (Fla. 1st DCA, No. 1D17-1385, 6/27/2017), 2017 WL 2970703.
Judge disqualified from presiding over contempt proceeding that arose from lawyer’s alleged disrespect to judge in open court. [Added 7/28/17] -- Rosenwater v. Deutsche Bank National Trust Co., __ So.3d __ (Fla. 4th DCA, No. 4D16-4015, 6/21/2017), 2017 WL 2664689.
Judge’s disqualification not warranted when criminal defendant complained about judge’s handling of trial scheduling and alleged “favoritism” toward State. [Added 6/8/17] -- Fetzner v. State, __ So.3d __ (Fla. 4th DCA, No. 4D15-2572, 5/3/2017), 2017 WL 1718851.
Judge disqualified due to judge’s stated policy of requiring State to file information within 21 days of defendant’s arrest to avoid sua sponte release of defendant or reduction of bond. [Added 6/1/17] -- State v. Dixon, __ So.3d __ (Fla. 3d DCA, No. 3D17-281, 3D-17-158, 3D-17-159, 4/26/2017), 2017 WL 1494001.
Motion to disqualify senior judge timely despite being made more than 10 days after judge’s comments, wheree movant reasonably believed that judge would not remain on case. [Added 4/11/17] -- State v. Gresham, __ So.3d __ (Fla. 5th DCA, No. 5D17-0665, 3/31/2017), 2017 WL 1202615.
Although judge’s overhead comment about lawyer’s verbosity did not warrant disqualification, judge is disqualified due to response filed on judge’s behalf. [Added 3/30/2017] -- Consulate Health Care v. Ho, __ So.3d __ (Fla. 1st DCA, No. 1D16-3808, 2/24/2017).
Judge should have been disqualified for allegedly engaging in ex parte communications with party before entering final judgment that was “nearly identical” to party’s proposed judgment. [Added 1/4/17] -- Isan v. Isan, __ So.3d __ (Fla. 5th DCA, No. 5D16-3867, 12/6/2016), 2016 WL 7174330.
Judge not disqualified despite making comment that party believed reflected “negative and unfounded stereotypes” of persons of party’s ethnic background. [Added 12/21/16] -- Pugliese v. Deluca, __ So.3d __ (Fla. 4th DCA, No. 4D16-3959, 12/21/2016), 2016 WL _______.
Although motion for disqualification was legally sufficient, judge not disqualified because movant failed to timely act to prevent judge from taking further action pending appellate review. [Added 12/20/16] -- Jackson v. Leon County Elections Canvassing Board, __ So.3d __ (Fla. 1st DCA, No. 1D16-5205, 11/23/2016), 2016 WL 6901444.
Criminal defendant’s motion to disqualify trial judge should have been granted as legally sufficient where defendant alleged fear of bias due to judge’s apparent policy regarding harsher sentences on persons unable to pay restitution. [Added 9/28/16] -- Dunlevy v. State, __ So.3d __ (Fla. 4th DCA, Nos. 4D13-831, 4D14-2153, 9/21/2106) 2016 WL 5118337.
Judge is not disqualified from case, despite having compared party’s procedures to those of the “Taliban” in related suit. [Added 7/5/16] -- Lawnwood Medical Center, Inc. v. Seeger, __ So.3d __ (Fla. 4th DCA, No. 4D16-885, 6/15/2016), 2016 WL 3268545.
Judge who previously represented criminal defendant and thus acquired confidential information, coupled with judge’s prior representation of police department to which defendant is adverse, would have required disqualification if motion was timely filed. [Added 1/15/16] -- State v. Oliu, __ So.3d __ (Fla. 3d DCA, No. 3D15-2426, 1/6/2016), 2016 WL 63662.
Judge’s comments in written denial of motion to disqualify him were comments on what faculty transpired and not refutation of bias or prejudice, and thus were permissible. [Added 1/4/16] -- Pilkington v. Pilkington, __ So.3d __ (Fla. 5th DCA, No. 5D15-3829, 12/31/2015), 2015 WL _______.
Judge disqualified from case in which lawyer on judge’s on-going campaign committee is representing party. [Added 11/28/15] -- Rivera v. Bosque, __ So.3d __ (Fla. 5th DCA, No. 5D15-3755, 1/29/2016) (on rehearing), 2016 WL ______.
Judge was disqualified for commenting on merits of movant’s allegations in open court, despite entering written order that simply denied motion as legally insufficient without comment. [Added 11/21/15] -- Greenwood v. State, __ So.3d __ (Fla. 2d DCA, No. 2D15-3553, 10/14/2015), 2015 WL 5966270.
Motion to disqualify judge does not require sworn affidavits by party having personal knowledge of facts alleged. [Added 10/26/15] -- D.W.Q. v. A.B., __ So.3d __ (Fla. 5th DCA, No. 5D15-2882, 10/7/2015), 2015 WL 5883372.
Judge’s comments reflecting personal knowledge about storm damage affecting local area were not grounds for disqualification. [Added 8/12/15] -- Forehand v. Walton County, __ So.3d __ (Fla. 1st DCA, No. 1D15-2842, 8/7/2015), 2015 WL 4709188.
Judge’s hostility toward lawyer arising from lawyer’s opposition to judge’s appointment to federal bench warrants disqualification of judge in post-trial proceedings. [Added 7/19/15] -- Perrotto v. R.J. Reynolds Tobacco Co., __ So.3d __ (Fla. 4th DCA, No. 4D14-4943, 7/15/2015), 2015 WL 4269628.
Judge of Compensation Claims erred in denying motion to disqualify him due to “improper allegations” against movant’s lawyer in unrelated case. [Added 6/18/15] -- Kline v. JRD Management Corp., __ So.3d __ (Fla. 1st DCA, No. 1D15-0562, 6/2/2015), 2015 WL 3464110.
Judge disqualified for allegedly refusing to allow former husband to cross-examine former wife during hearing on emergency motion to temporarily suspend husband’s child custody. [Added 5/19/15] -- Wyckoff v. Cavanaugh, __ So.3d __ (Fla. 1st DCA, No. 1D15-1646, 5/15/2015), 2015 WL 2260662.
Judge who made “acerbic comments” and showed “overall hostility” to defendants and their counsel is disqualified. [Added 5/12/15] -- Partin v. Magalhaes, __ So.3d __ (Fla. 4th DCA, No. 4D14-4861, 5/6/2015), 2015 WL 2089081.
Judge’s comment on credibility of party’s expert witness coupled with adoption of other party’s proposed judgment do not provide basis for judge’s disqualification. [Added 4/2/15] -- Clark v. Clark, __ So.3d __ (Fla. 1st DCA, No. 1D14-5949, 3/25//2015), 2015 WL 1334079.
Judge’s denial of motion to disqualify him is upheld, where motion appeared to be based on adverse ruling. [Added 2/20/15] -- Kazran v. Buchanan, __ So.3d __ (Fla. 2d DCA, No. 2D15-13 2/20/2015).
Judge who receives no alimony or support from judge’s former spouse is not disqualified from cases involving former partner of Judge's former spouse who still rents space from Judge's former spouse. [Added 2/12/15] -- Judicial Ethics Advisory Committee Opinion 2015-01.
Judge’s apparent attempts at "wit or erudition" fall flat, leading to his disqualification. [Added 12/23/14] -- Great American Ins. Co. of New York v. 2000 Island Boulevard Condominium Ass’n, Inc., __ So.3d __ (Fla. 3d DCA,No. 3D1-2625, 12/17/2014).
Judge’s comments about city’s police officers ignoring subpoenas are not sufficient basis on which to disqualify judge from cases involving that police department. [Added 12/23/14] -- State v. Banner, __ So.3d __ (Fla. 5th DCA, No. 5D-3694, 12/15/2014).
Judge disqualified from post-dissolution proceeding after not allowing party to present argument or additional evidence prior to ruling on opponent’s motion for temporary support. [Added 11/19/14] -- Castillo v. Castillo, __ So.3d __ (Fla. 4th DCA, 4D14-2522, 11/19/2014).
Party who moved for judge’s disqualification not entitled to take judge’s deposition in order to provide support for motion. [Added 10/21/14] -- Keitel v. Agostino, ___ So.3d __ (Fla. 4th DCA, No. 4D14-2368, 10/8/2014).
Strict compliance with service of process rules required for motions to disqualify judges. [Added 8/13/14] -- Leila Corp. of St. Pete v. Ossi, __ So.3d __ (Fla. 2d DCA, No. 2D14-1960, 8/8/2014).
Judicial Ethics Advisory Committee affirms prior position regarding disclosure and disqualification relating to lawyers on s campaign committee. [Added 7/31/14] -- Judicial Ethics Advisory Opinion 2014-09.
Motion to disqualify judge did not trigger time limits for ruling on motion under Fla.R.Jud.Admin. 2.330(j) because it was filed before s jurisdiction had been invoked. [Added 7/1/14] -- Nilio v. State, __ So.3d __ (Fla. 1st DCA, No. 1D14-0451, 6/25/2014).
Judge who stated during plea hearing that he wished he could give defendant the death penalty is disqualified from case and conviction is reversed. [Added 5/4/14] -- Carter v. State, __ So.3d __ (Fla. 4 th DCA, No. 4D11-4979, 4/30/2014).
Pending motion to disqualify the judge must be ruled on before the judge rules on anything else Petitioner filed and served a motion to disqualify the trial judge. [Added 4/30/14] -- Dortly v. Avalon Healthcare Center, __ So.3d __ (Fla. 1st DCA, No. 1D13-4485, 4/9/2014).
Judge may not preside over case in which judge previously provided mediation services while in private practice. [Added 2/5/14] -- Judicial Ethics Advisory Opinion 2014-02.
Judge who sent ex parte Facebook “friend” request to divorce litigant should have granted litigant’s motion for disqualification. [Added 2/3/14] -- Chace v. Loisel, __ So.3d __ (Fla. 5th DCA, No. 5D13-4449, 1/24/2014). NOTE: See Law Offices of Herssein and Herssein, P.A. v. United States Auto. Ass’n, __ So.3d __ (Fla., No. SC17-1848, 11/15/2018), 2018 WL 5994243.
Judge disqualified from dissolution case because one spouses’ counsel represented judge in judge’s own divorce. [Added 11/21/13] -- Ballard v. Campbell, __ So.3d __ (Fla. 4th DCA, No. 4D13-2098, 11/20/2013).
Judge disqualified for conducting independent, ex parte investigation in guardianship matter. [Added 11/10/13] -- In re: Guardianship of O.A.M., __ So.3d __ (Fla. 3d DCA, No. 3D13-2250, 11/6/2013).
Second DCA strikes “scandalous” comments from judge’s blanket order disqualifying herself in all cases involving certain lawyer. [Added 11/6/13] -- Holt v. Sheehan, __ So.3d __ (Fla. 2d DCA, No. 2D12-4254, 10/11/2013).
Judge disqualified for adopting “recommendations” from one party without affording other party chance to cross-examine witness or present evidence. [Added 10/29/13] -- S.L. Wade v. D.T. Wade, __ So.3d __ (Fla. 3d DCA, No. 3D13-2354, 10/23/2013).
Second DCA reverses judgment in medical malpractice case because trial judge erred in not disqualifying himself or declaring a mistrial. [Added 10/25/13] -- M.B. v. S.P., __ So.3d __ (Fla. 2d DCA, No. 2D12-3136, 10/18/2013).
Judge disqualified despite legally insufficient motion due to comments taking issue with facts alleged in motion. [Added 10/10/13] -- McPherson v. McPherson, __ So.3d __ (Fla. 4th DCA, 4D13-3170, 10/9/2013).
Court’s untimely denial of motion to disqualify judge means that motion is deemed granted and judge is disqualified. [Added 10/10/13] -- Belgrave-Simmonds v. Belgrave, __ So.3d __ (Fla. 4th DCA, 4D13-1421, 10/9/2013).
Judge erred in denying motion to disqualify her after inviting it to be filed and indicating it would be granted. [Added 8/12/13] -- ManorCare Health Services, Inc. v. Gipson, __ So.3d __ (Fla. 4th DCA, No. 4D13-605, 8/7/2013).
Judge may not use office in building owned by the judge in which judge previously practiced law with family members who still practice there. [Added 6/6/13] -- Judicial Ethics Advisory Opinion 2013-13.
Judge should have been disqualified after entering adverse ruling without allowing defendant to present evidence or argument on important issue. [Added 4/16/13] -- Keating v. State, __ So.3d __ (Fla. Fourth DCA, No. 4D13-30, 4/10/2013).
Judge’s disqualification required where judge’s acts and personal comments about litigant were enough to demonstrate bias to a reasonable person. [Added 3/31/13] -- Martinez v. Cramer, __ So.3d __ (Fla. 4th DCA, No. 4D13-368, 4/3/2013).
Strictly applying 30-day time limit for ruling on judicial motions to disqualify, First DCA quashes order denying motion and orders case reassigned. [Added 3/26/13] -- Hilliard v. State, __ So.3d __ (Fla. 1st DCA, No. 1D13-0217, 3/18/2013).
Judge who stated that criminal defendant committed perjury is disqualified from presiding over defendant’s sentencing. [Added 3/10/13] Louissant v. State, __ So.3d __ (Fla. 4th DCA, No. 4D11-1553, 3/6/2013).
Judge who a year ago consulted but did not hire lawyer from large law firm is not disqualified from cases involving that lawyer or firm. [Added 2/7/13] -- Judicial Ethics Advisory Opinion 2013-02.
Judicial Ethics Advisory Committee addresses when judicial appointee may sell law practice, including goodwill, and collect payments over time. [Added 2/5/13] -- Judicial Ethics Advisory Opinion 2013-01.
Fourth DCA certifies question of whether criminal court judge’s acceptance of prosecutor as Facebook friend requires judge’s disqualification. [Added 1/18/13]
In a prior opinion in this case the Fourth DCA ruled that the judge in a criminal case was disqualified where the judge had accepted the prosecutor as a Facebook “friend.” The court reasoned that “a judge’s activity on a social networking site may undermine confidence in the judge’s neutrality. Judges must be vigilant in monitoring their public conduct so as to avoid situations that will compromise the appearance of impartiality” and, as a result, concluded that the judge should have been disqualified because the defendant “alleged facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.” (See Domville v. State, 37 Fla.L.Weekly D2126 (Fla. 4th DCA, No. 4D12-556, 9/5/2012).)
In an opinion denying motions for rehearing and clarification, the appeals court certified to the Supreme Court (pursuant to Fla.R.App.P. 9.030(a)(2)(A)(v)) the following question as one of great public importance: “Where the presiding judge in a criminal case has accepted the prosecutor assigned to the case as a Facebook ‘friend,’ would a reasonably prudent person fear that he could not get a fair and impartial trial, so that the defendant’s motion for disqualification should be granted?”
One judge wrote a concurring opinion in which he stated that “[j]udges do not have the unfettered social freedom of teenagers” and that maintenance of a judge’s “appearance of impartiality requires the avoidance of entanglements and relationships that compromise that appearance.” Domville v. State, __ So.3d __ (Fla. 4th DCA, No. 4D12-556, 1/16/2013) (on motions for rehearing and clarification).
Judge who suggested that he would grant motion to disqualify him if state filed it, but then denied motion, is disqualified per Third DCA. [Added 1/18/13] -- State v. Borrego, __ So.3d __ (Fla. 3d DCA, No. 3D12-2988, 1/16/2013).
Judicial Ethics Advisory Committee addresses issues of disclosure and recusal in cases where judge’s close friend is official of bank litigant. [Added 1/2/13] -- Judicial Ethics Advisory Opinion 2012-37.
30-day time limit for ruling on judicial motion to disqualify does not apply if judge is not served with motion, per Florida Supreme Court. [Added 11/20/12] -- Braddy v. State, __ So.3d ___ (Fla., No. SC07-2174, 11/15/2012).
Judicial Ethics Advisory Committee discusses when judge's disqualification may be required because a stepniece is a lawyer in Public Defender's Office. [Added 10/30/12] -- Judicial Ethics Advisory Opinion 2012-32.
Criminal court judge must disclose to parties that judge's spouse is "sworn legal counsel" in sheriff's office when case involves sheriff's office. [Added 10/30/12] -- Judicial Ethics Advisory Opinion 2012-33.
Criminal defendant’s allegation that trial judge is Facebook “friend” of prosecutor is grounds for judge’s disqualification, per Fourth DCA. [Added 9/6/12] -- Domville v. State, __ So.3d ___ (Fla. 4th DCA, No. 4D12-556, 9/5/2012).
Disqualification of judge required where judge made “inflammatory” statements referencing notorious Nazi war criminal. [Added 9/6/12] -- Philip Morris USA, Inc. v. Brown, __ So.3d ___ (Fla. 1st DCA, No. 1D12-3090, 9/5/2012).
Judge’s actions to control attorney behavior in courtroom are not grounds for disqualification, per Third DCA. [Added 6/29/12] -- Bert v. Bermudez, __ So.3d ___, 37 Fla.L.Weekly D1465 (Fla. 3d DCA, No. 3D12-911, 6/20/2012), 2012 WL 2327734.
Criminal court judge’s membership in organization dedicated to assisting domestic violence victims is not a basis for disqualification, suggests Fourth DCA. [Added 6/27/12] -- Holley v. State, __ So.3d ___, 37 Fla.L.Weekly D1440 (Fla. 4th DCA, No. 4D09-4066, 6/20/2012), 2012 WL 2327741.
Judge who is tenant/defendant in residential condominium foreclosure case is not obligated to recuse from all residential foreclosure cases. [Added 4/18/12] -- Judicial Ethics Advisory Opinion 2012-07.
Disclosure but not recusal is required where judge 7 years earlier represented party against lawyer currently appearing in judge’s court. [Added 4/12/12] -- Judicial Ethics Advisory Opinion 2012-08.
County judge whose child is lawyer in State Attorney's Office is not disqualified from hearing criminal cases but should disclose relationship to parties in criminal cases. [Added 1/31/12] -- Judicial Ethics Advisory Opinion 2012-02.
Judge disqualified from case may not perform anything other than "ministerial" acts in case after disqualification. [Added/ 1/17/12] -- Ross v. Ross, 77 So.3d 238 (Fla. 4th DCA 2012).
First DCA "disfavors" and denies "blanket" request to disqualify judge from presiding over 16 other cases involving same lawyers who had judge disqualified in one case. [Added 1/10/12] -- R.M.C. v. D.C., 77 So.3d 234 (Fla. 1st DCA 2012).
Judge may not preside over felony arraignments in county where judge's spouse supervises State Attorney's Office. [Added 1/3/12] -- Judicial Ethics Advisory Opinion 2011-21.
Motion to disqualify judge for denying continuance and “demeanor” with counsel properly denied as legally insufficient. [Added 12/20/11] -- Ramos v. State, 75 So.3d 1277 (Fla. 4th DCA 2011).
Disclosure, but not recusal, is required where lawyer appearing before judge is married to another lawyer who represents judge in unrelated civil matter. [Added 11/13/11] -- Judicial Ethics Advisory Opinion 2011-17.
Judge not disqualified from presiding over criminal defendant's trial just because he presided over related civil case. [Added 9/23/11] -- Santisteban v. State, 72 So.3d 187 (Fla. 4th DCA 2011).
Motion to disqualify trial judge is untimely when delayed until after final judgment. [Added 7/11/11] -- DeTournay v. City of Coral Gables, 65 So.3d 1103 (Fla. 3d DCA 2011).
Judge disqualified from presiding over contempt proceeding but not from underlying divorce case. [Added 5/28/11] -- Zanghi v. State, 61 So.3d 1263 (Fla. 4th DCA 2011).
Senior judge who holds several residential mortgages on properties not ethically prohibited from presiding over mortgage foreclosure cases. [Added 2/17/11] -- Judicial Ethics Advisory Opinion 2011-02.
First DCA rules that judge should be disqualified for comment appearing to favor one party. [Added 1/26/11] -- Tallahassee Memorial Healthcare, Inc. v. Alexander, 51 So.3d 644 (Fla. 1st DCA 2011).
Judicial Ethics Advisory Committee discusses when judge may hear cases with defendants represented by Public Defender's Office where judge had worked. [Added 11/13/10] -- Judicial Ethics Advisory Opinion 2010-36.
Judge's ruling on motion to disqualify was timely despite being rendered 35 days after service. [Added 11/5/10] -- Hatfield v. State, 46 So.3d 654 (Fla. 2d DCA 2010).
Florida Supreme Court reaffirms that motions to disqualify judge filed pro se by represented criminal defendant are a nullity. [Added 10/3/10] -- Ault v. State, 53 So.3d 175 (Fla. 2010).
Judge disqualified from minor's delinquency proceedings due to statements made by judge in open court. [Added 9/17/10] -- R.V. v. State, 44 So.3d 180 (Fla. 4th DCA 2010).
Ex parte communications with judge for purely administrative, non-substantive matters do not warrant judge's disqualification. [Added 8/23/10] -- Nudel v. Flagstar Bank, FSB, 52 So.3d 692 (Fla. 4th DCA 2010).
Judicial Ethics Advisory Committee addresses questions of judge owning stock in company that underwrites bail bonds. [Added 8/4/10] -- Judicial Ethics Advisory Opinion 2010-25.
Trial judge's disqualification is warranted where judge observed party's conduct in court prior to filing of case. [Added 7/8/10] -- A.B. v. Dept. of Children and Family Services, 37 So.3d 394 (Fla. 3d DCA 2010).
Judge married to circuit's elected Public Defender may not preside over cases assigned to P.D.'s office, even if private contract attorneys actually handle the cases. [Added 5/4/10] -- Judicial Ethics Advisory Opinion 2010-09.
Judge in building partnership with county attorney disqualified from cases where county is represented by county attorney's staff, but not necessarily when outside counsel used. [Added 4/21/10] -- Judicial Ethics Advisory Opinion 2010-02.
Judge who received favorable loan rates from lender affiliated with one of the parties is disqualified from presiding over case. [Added 2/5/10] -- Mines v. Countrywide Home Loan, Inc., 31 So.3d 820 (Fla. 1st DCA 2010). NOTE: See also Canon 5D(5)(f) of the Florida Code of Judicial Conduct.
Judge did not err in entering final order after motion to disqualify him was filed, where order simply reduced to writing prior oral ruling. [Added 12/15/09] -- Fernwoods Condominium Association #2, Inc. v. Alonso, 26 So.3d 27 (Fla. 3d DCA 2009).
Trial judge's "decidedly negative commentary" about party sufficient to require judge's disqualification in marriage dissolution proceeding. [Added 10/28/09] -- Colarusso v. Colarusso, 20 So.3d 985 (Fla. 3d DCA 2009).
Lawyers' campaign contributions totaling $4650 do not require disqualification of recipient judge under Caperton v. A.T. Massey Coal Co. [Added 10/2/09] -- E.I. DuPont de Nemours and Co. v. Acqumar S.A., 24 So.3d 585 (Fla. 4th DCA 2009).
Judge who recused himself in one case due to personal relationship with parties also disqualified in separate case involving those parties. [Added 9/30/09] -- Catasus v. Tabone, 19 So.3d 427 (Fla. 3d DCA 2009).
Florida Supreme Court amends Florida Rules of Judicial Administration concerning judicial disqualification motions. [Added 7/15/08] -- In re: Amendments to the Florida Rules of Judicial Administration, 986 So.2d 560 (Fla. 2008).
Florida Supreme Court rules that circuit court's order on petition for writ of prohibition filed after motion to disqualify County court judge was denied is reviewable by certiorari rather than direct appeal. [Added 2/4/08] -- Sutton v. State, 975 So.2d 1073 (Fla. 2008).