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Florida Judicial - DISQUALIFICATION


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 filed a motion to disqualify the trial judge.  The motion was not properly served on the judge, but the judge received it.  The judge then denied the motion for the sole reason that it was not properly served per Fla.R.Jud.Admin. 2.330(c)(4).  Baker petitioned for a writ of prohibition.

          The Fourth DCA granted the petition.  Although case law shows that improper service nullifies the portion of Fla.R.Jud.Admin. 2.330(j) that provides that the motion is deemed granted if not ruled on in 30 days, “[t]here is no case which holds, however, that improper service alone is a sufficient reason to deny a motion once received.”  The appellate court concluded that improper service was not a sufficient reason for denial of the motion “and that the trial judge was required to rule on the legal sufficiency of the motion in his ruling. We therefore quash the order denying the motion to disqualify, and remand for the trial judge in this case to make a ruling on the legal sufficiency of the motion to disqualify in the first instance.”

          The court considered remanding for a ruling to be “more appropriate remedy” than requiring Baker to refile a motion with proper service, “as this would require [Baker] to file a motion to disqualify that is untimely per [Fla.R.Jud.Admin.] 2.330 and thereby deprive him of a ruling on the legal sufficiency of the motion.”   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 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 is 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.  The issue was “whether a reasonably prudent person would fear that he or she could not get a fair and impartial trial because the judge is a Facebook friend with a lawyer who represents a potential witness and party to the lawsuit.”  Generally, allegations of mere friendship are insufficient grounds for judicial disqualification.  However, in Domville v. State, 103 So.3d 184 (Fla. 4th DCA 2012), the court ruled that a judge’s disqualification was required when the judge was a Facebook “friend” with the prosecutor.  The Judicial Ethics Advisory Committee has also opined that a judge should not play an active role in accepting or rejecting potential social media “friends.”  JEAC Op. 2009-20; see also JECA Op. 2010-06.  More recently, the Domville case was questioned by the Fifth DCA in Chace v. Loisel, 170 So.3d 802 (Fla. 5th DCA 2014).

          In the instant case, the Third DCA concluded:  “We agree with the Fifth District that ‘[a] Facebook friendship does not necessarily signify the existence of a close relationship.’”  The court gave 3 reasons for its decision.

          First, some people have numerous Facebook “friends,” perhaps even thousands.  See Sluss v. Commonwealth, 381 S.W.3d 215 (Ky. 2012) (declining to require new trial when juror was Facebook “friend” with victim’s family member).  Second, people often cannot recall every person whom they have accepted as a Facebook “friend” or who has accepted them as such.  (Case citations omitted.)  Third, “many Facebook ‘friends’ are selected based upon Facebook’s data-mining technology rather than personal interactions.”

          The court noted that, while some Facebook “friends” may be “friends in the classic sense” and thus have a personal relationship of affection and loyalty, many are not.  “An assumption that all  Facebook ‘friends’ rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.”  Accordingly, “we hold that the mere fact that a judge is a Facebook ‘friend’ with a lawyer for a potential party or witness, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the Facebook ‘friend.’”

          The court acknowledged conflict with Domville.   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]

          A trial judge set a case management conference (“CMC”) in a foreclosure case.  Defense counsel failed to appear.  The judge set another conference.  During that conference, the judge called defense counsel on speaker phone.  The judge was put on hold.  An associate of defense counsel came on the line and stated that defense counsel did not believe he needed to appear because the defendant and the plaintiff bank had “worked out an agreed order on the pending Motion to Dismiss.”  The judge still wanted to talk with defense counsel, but was again placed on hold.  Defense counsel finally came on the line and told the judge he did not believe he was required to attend because:  “1. He had worked out an agreement on the defendant's pending Motion to Dismiss with [the bank]’s counsel and that [the bank]’s counsel was presenting the proposed order.  2. That he did not feel the case was in a sufficient ‘posture’ to ‘warrant’ a case management conference.  3. That he did not feel that CMC was worthy of having even coverage counsel attend.  4. That he essentially ignored the CMC order and had no qualms about ignoring the same.”

          The judge issued an order to show cause, held a hearing, and found defense counsel in direct criminal contempt.  Defense counsel appealed.

          The Fourth DCA reversed.  Fla.R.Crim.P. 3.840(e), which requires strict compliance, provides that when a contempt charge involves “disrespect to or criticism of a judge,” that judge shall disqualify himself from presiding and another judge will be appointed.  The appealed court summarized:  “Here, the contempt charge involved the attorney’s disrespect to the trial judge in open court on speaker phone.  During the hearing on the order to show cause, the judge stated:  ‘Do you recognize or not that you essentially told me to go soak my head?’  He added:  ‘[T]hat is completely an unqualified rejection of showing any respect for a judicial officer or the proceedings of the Court.’  Because the attorney’s conduct was directed toward the judge, the judge was required to disqualify himself from the proceeding.”   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]

          Criminal Defendant’s second motion to disqualify Judge was denied.  Defendant appealed.  Defendant’s allegations could be grouped into 2 categories:  (1) Judge’s actions regarding trial scheduling; and (2) Judge’s treatment of his attorneys.  The Fourth DCA affirmed, concluding that the motion was properly denied as insufficient.

          As to scheduling, Defendant alleged that Judge was aware of his counsel’s pre-planned vacation and assured his counsel that the trial would not be extended.”  Judge, however, did extend the trial to allow the State to delay calling 2 witnesses until the following week because they were unavailable.  The court stated:  “We agree that courts must be reasonable with scheduling and should consider the impact scheduling decisions have on the parties and their counsel.  However, we disagree that the court’s decision in this case justified disqualification.  Allowing the witnesses to testify the following week, as opposed to delaying the trial for weeks or months into the future, might be inconvenient to defense counsel, but is not inconsiderate to the defendant whose liberty is at stake.”

          Regarding Judge’s demeanor toward defense counsel, Defendant alleged that Judge “raised her voice at defense counsel, scolded defense counsel, pointed a finger at defense counsel in clear view of the jury, and threatened one of the defense attorneys at a sidebar that the attorney would be required to remain seated if she continued to speak on the record.”  Pointing out that the motion and attached affidavit did not explain why Judge acted this way or whether the prosecutor was treated similarly, the court lacked “context” and so was “unable to conclude that the conduct of the judge would cause a reasonably prudent person in the defendant’s position to fear that he could not get a fair and impartial trial.”  In Ellis v. Henning, 678 So.2d 825, 827 (Fla. 4th DCA 1996), the court held that “[a] trial judge’s expression of dissatisfaction with counsel or a client’s behavior alone does not give rise to a reasonable belief that the trial judge is biased and the client cannot receive a fair trial.”   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]

          In consolidated cases the Third DCA addressed the State’s petition for writ of prohibition, certiorari, and mandamus.  The State alleged that a trial judge should be disqualified from three cases, all of which “arise from the trial judge’s stated policy requiring the State to file an information by the twenty-first day after the arrest of the defendant or face a sua sponte release of the defendant or a reduction of the defendant’s bond.”  The State argued that the judge’s “tone and statements” made in one case “demonstrate: (1) a predisposition to release defendants ROR or on a very low bond in every case in which the trial judge believes the charging document was not timely filed, with or without a motion by defense counsel; (2) a predisposition for assisting defendants by sua sponte granting bonds and suggesting courses of action to defense counsel; and (3) hostility towards the State Attorney’s Office because the trial judge perceives the office as having a “lackadaisical bureaucratic attitude” towards the timely filing of charges.”

          In a lengthy opinion, the Third DCA agreed that each of the grounds raised in the State’s motion for disqualification are legally sufficient, requiring the trial judge’s disqualification.”  The trial judge’s state policy to apply his bond decision was essentially a comment revealing his determination to rule a particular way prior to hearing evidence or argument.  See Thompson v. State, 990 So.2d 482 (Fla. 2008).  The policy also violated Florida statutes and procedural rules (see Fla.R.Crim.P. 3.131 and 3.134; F.S. 903.046, 907.041).  The policy also indicated a lack of neutrality on the part of the judge.  The judge’s comments also demonstrated hostility toward the State.   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]

          On January 23, the senior judge temporarily assigned to the case made comments that “were sufficient to put a reasonably prudent person in well-founded fear of not receiving a fair trial.”  The State did not move to disqualify the senior judge because the senior judge told defense counsel that he would not be remaining on the case.  A subsequent hearing on the motion was set and the senior judge was not assigned to hear it.

          The case was set for trial on February 6 and was “unexpectedly reassigned to the senior judge.”  On February 7 the State filed a motion to disqualify the senior judge.  The motion was denied as legally insufficient; specifically, as untimely under the 10-day time limit of Fla.R.Jud.Admin. 2.330(e).  On February 8 the State filed an amended motion arguing that the need to file the motion after the January 23 hearing “became moot once the senior judge was not assigned to hear it.”  The amended motion was denied as both untimely and successive.

          The Fifth DCA granted a writ of prohibition and ordered the senior judge disqualified.  “Because the senior judge was only temporarily assigned to hear the motion to suppress on January 23, and there was no indication he would be presiding over the case after that day, there was no need for the State to file the motion to disqualify at that time.  The matter only became an issue once the senior judge was reassigned to the case on February 6.  We therefore conclude the motion was timely as the 10-day time-limit under the rule did not begin to run until February 6, 2017.”   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]

          At the end of a videoconference hearing, a judge of compensation claims (JCC) made this remark after he thought the equipment was turned off:  “Was I nice and sweet and patient to let the attorney talk on and on and on ad nauseam?”  Petitioner assumed the remark was about its lawyer and moved to disqualify the JCC.  The JCC denied the motion as legally sufficient.

          On certiorari review, the First DCA agreed that the motion was legally insufficient.  “The comment attributed to the JCC did not specifically single out Petitioners’ attorney as the loquacious one, and even if it had, that would not establish an objectively reasonable basis for Petitioners to fear that the JCC was biased against them.”

          Nevertheless, the appellate court ruled that the JCC should be disqualified.  A response had been voluntarily filed on the JCC’s behalf by the Office of Judge of Compensation Claims (OJCC).  The response attempted to refute the motion’s factual allegations.  The court offered this caution regarding future responses:  “we take this opportunity to remind the OJCC that it is under no obligation to file a response in a prohibition proceeding such as this unless the court specifically orders it to do so.  . . .  However, if the OJCC chooses to file a response on behalf of the JCC, it must limit the response to the legal sufficiency of the motion and avoid the temptation to factually refute – either directly or indirectly – the allegation of partiality as it did in this case.”   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).