Florida Judicial - DISQUALIFICATION
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.
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 3/30/217]
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]
Husband filed a motion to disqualify the trial judge in a divorce case, alleging that “the trial judge engaged in ex parte communications with [Wife] on several occasions before entering a Final Judgment nearly identical to [Wife]’s proposed final judgment, including awarding attorney’s fees.” The trial court denied the motion.
The Fifth DCA issued a writ of prohibition directing the judge’s disqualification. Husband’s allegations were sufficient on their face “to demonstrate that a reasonably prudent person would be in fear of not receiving a fair and impartial hearing.” 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 was a party in a civil case. His counsel was describing to the judge the names and roles of litigants on both sides of the dispute, and referred to San Giacomo as his client’s “right-hand man.” The judge followed up with a question: “There are so many right-hand men with our Italian folks here. So you got San Giacomo is whose righthand man?”
Pugliese moved to disqualify the judge, alleging “that the comment reflected ‘negative and unfounded stereotypes of Italian-Americans.’” The judge denied the disqualification motion as legally insufficient.
On certiorari review, the Fourth DCA agreed. The appeals court noted that the judge’s comment “was unnecessary and improper.” But even accepting movant’s allegations as true, the court was “unable to conclude that the judge’s comment, though unnecessary and improper, would cause a litigant in Pugliese’s position to reasonably question the judge’s impartiality toward Pugliese, or would place a reasonably prudent person in Pugliese’s position in fear of not receiving a fair and impartial trial. In other words, Pugliese’s motion simply does not allege how the judge’s comment would manifest itself to prevent Pugliese from receiving the benefit of the judge’s impartiality or a fair and impartial trial. Thus, the motion was legally insufficient.” (Emphasis by court.) 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]
In an election contest case, on November 15 Petitioner moved to disqualify the trial judge based on the judge’s conduct at a November 10 hearing. The judge denied the motion on November 16. The judge set a case management hearing for November 18. Movant did not filed a petition for writ of prohibition until after the November 18 hearing. The First DCA ruled that Movant waived his claim for judicial disqualification by participating in the November 18 case management hearing. Movant’s conduct at the November 18 hearing “was inconsistent with his previous claim for disqualification and constituted a waiver. At the case management hearing, [Movant] did not object to the trial court’s continuing to preside over the case, he did not seek a stay or continuance, and did not indicate any intention to file a petition for a writ of prohibition. That hearing was more than a case management conference and included argument and rulings on multiple substantive motions, yet [Movant] submitted to the jurisdiction of the trial court and participated fully without objection and without referencing disqualification or prohibition, thus waiving his disqualification argument.”
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]
Criminal Defendant moved to disqualify the trial judge. The judge denied his motion as legally insufficient. Defendant petitioned for Fourth DCA review of his denied disqualification petition, which the appellate court denied. The case was remanded for a hearing for other reasons. After that, Defendant appealed and again raised the issue of denial of his motion to disqualify the judge.
The appeals court noted initially that its prior ruling did not bar it from considering the issue on direct appeal.
In the disqualification motion, Defendant “alleged facts concerning his case and others and quoted multiple statements by the trial judge in other cases and asserted that the facts and statements show the trial judge has a policy of sentencing defendants more harshly for being indigent and unable to pay restitution at the time they are resolving their cases” and “also alleged that he received a disproportionately more severe incarceration sentence than his co-defendants because, unlike his co-defendants, he was not able to pay as much restitution or as quickly as his co-defendants.” Even though the trial had not announced a policy on this issue (see Hayes v. State, 686 So.2d 694 (Fla. 4th DCA 1996), Defendant’s “allegations, examples, and arguments in his motion to disqualify support this reasonable fear.” Accordingly, the trial court erred in denying the disqualification motion. 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]
The Fourth DCA denied, without opinion, a hospital’s petition for writ of prohibition seeking to disqualify a trial judge. One judge dissented, noting that in a prior suit involving the hospital the trial judge had granted a temporary injunction and “compared the hospital’s procedures on confidentiality for peer review and credentialing records to those of the ‘Taliban.’” After reversal the judge had recused himself.
Regarding the instant case, the dissenting judge stated: “The ‘Taliban’ comment is at least as incendiary as comparing a former tobacco CEO to a Nazi war criminal. See Philip Morris USA, Inc. v. Brown, 96 So.3d 468, 470 (Fla. 1st DCA 2012). The motion to recuse was legally sufficient because it alleged facts that ‘would place a reasonably prudent person in fear of not receiving a fair and impartial trial.’ MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1335 (Fla. 1990) (quoting Livingston v. State, 441 So.2d 1083, 1087 (Fla. 1983)). The fear is not rendered unreasonable because the current lawsuit involves an alleged breach of the bylaws and the former case concerned the confidentiality of peer review and credentialing.” 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]
Judge presided over a criminal case in which the defendant was a City of Sweetwater police officer charged with official misconduct. The State filed a motion to disqualify Judge, citing these grounds: “(1) the trial judge’s acknowledged previous attorney-client relationship with the City of Sweetwater Police Department, which appeared as a third party duces tecum witness before the trial judge on a show cause order why it should not be held in contempt for its failure to comply with a subpoena duces tecum for production of documents; (2) the trial judge’s acknowledged personal and extra-judicial knowledge regarding facts asserted during that discovery dispute; and (3) the trial judge’s acknowledged previous attorney-client relationship with the defendant, who he represented in another case.”
Judge denied the motion as untimely. The State petitioned the Third DCA for a writ of prohibition. The appellate court denied the petition. “While these allegations give rise to an objectively reasonable fear of bias or prejudice requiring disqualification of the trial judge, we are compelled to deny the petition for writ of prohibition because the motion to disqualify the trial judge was not timely filed.” The court went on to indicate that Judge should step aside voluntarily: “Although we have denied the petition, we note that rule 2.330(i) permits a judge to enter an order of disqualification on his own initiative.” 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]
Petitioner, who had been removed as a trustee, moved to disqualify the trial judge on the ground that comments and rulings made by the judge showed bias or prejudice. The comments were made at a July 10 hearing, at which Petitioner alleged he was not present. The judge denied the motion as legally insufficient. In his denial order, however, the judge stated that Petitioner and his counsel were at the July 10 hearing.
The Fifth DCA upheld the denial of the motion as legally insufficient. In ruling on a motion to disqualify, a judge may determine only the legal sufficiency of the motion and may not pass on the truth of the facts alleged. The potentially inaccurate statement of fact about Petitioner’s presence at the hearing did not cross this line. “It is only where the judge attempts to refute the charges of partiality, prejudice, or bias, that he exceeds the proper scope of inquiry. . . . The judge may comment factually on what transpired during relevant proceedings when ruling upon a motion to disqualify. . . Here, the judge made no attempt to refute the charges of bias, prejudice or partiality; therefore, he did not exceed the proper scope of his inquiry.” (Citations omitted.) 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]
Petitioner filed a motion to disqualify Judge on the ground that 2 lawyers representing the opposing party (“Respondent”) “both are involved in the trial judge’s current, ongoing reelection campaign.” Judge denied the motion as legally insufficient. The Fifth DCA quashed the order denying Petitioner’s motion and directed disqualification of Judge.
Although one of the lawyers was “simply listed as one of many attorneys who support” Judge’s reelection, the other lawyer “was a member of the host committee for a reception in support of the judge's reelection."
The appeals court summarized: “Florida law is clear that involvement of a relatively limited nature in a judge's prior campaign, i.e., neither ongoing nor recently concluded, is not grounds for disqualification. . . . On the other hand, counsel’s significant involvement in a current, ongoing, or recently concluded reelection campaign constitutes sufficient legal grounds for granting a motion to disqualify.” (Citations omitted.) 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]
A criminal defendant moved to disqualify the trial judge. At the start of a pretrial hearing, Judge handed down a written order denying the disqualification motion as legally insufficient. The order did not comment on the truth of the motion’s allegations. During the hearing, however, Judge did comment on the facts alleged as a basis for Defendant’s belief that she would not get a fair trial.
The Second DCA granted Defendant’s petition for writ of prohibition and ordered Judge disqualified. “See Fla. R. Jud. Admin. 2.330(f); Bundy v. Rudd, 366 So.2d 440, 442 (Fla. 1978) (‘When a judge has looked beyond the mere legal sufficiency of a suggestion of prejudice and attempted to refute the charges of partiality, he has then exceeded the proper scope of his inquiry and on that basis alone established grounds for his disqualification.’).” 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]
Petitioner filed a motion to disqualify a trial judge. The judge denied the motion as legally insufficient. Apparently the moving party did not support the disqualification motion with sworn affidavits regarding the facts alleged.
The Fifth DCA granted a writ of prohibition. “[fla.R.Jud.Admin.] 2.330 requires only that the motion to disqualify be sworn to by the party signing it and that the attorney for the party separately certify that the motion and the client’s statements are made in good faith. ‘There is no requirement that the party have personal knowledge of the facts alleged nor that the motion be accompanied by sworn affidavits of persons with such knowledge.’ Barnett v. Barnett, 727 So.2d 311, 312 n.2 (Fla. 2d DCA 1999) (construing Florida Rule of Judicial Administration 2.160(c), which is now rule 2.330). If the facts in Petitioner’s motion were not true, then the ‘laws prohibiting perjury in judicial proceedings and rules regulating the conduct of attorneys are adequate to control any envisioned abuse.’ See Layne v. Grossman, 430 So.2d 525, 526 (Fla. 3d DCA 1983).” 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]
Petitioners brought an inverse condemnation case against Walton County, alleging that they suffered property damage due to a county drainage project. During the trial they submitted photos of erosion that resulted from rainstorms, including a storm that occurred on April 14. During arguments on the County’s motion for directed verdict, “the trial judge made reference to the evidence and testimony submitted by the parties, stating he was aware of storm damage in a neighboring county resulting from the same storm.” After trial, the judge ruled for the County.
Petitioners moved to disqualify the judge, asserting that he demonstrated bias “by ruling in the county’s favor by relying on his personal knowledge of neighboring storm damage” as well as by his evidentiary rulings against Petitioners. The judge denied the motion as legally insufficient.
The First DCA denied Petitioners’ petition for a writ of prohibition. As to the judge’s comments regarding his knowledge of storm damage, “[t]rial judges are permitted to be aware of events in their own communities, such as storms, flooding, construction projects, and so on. General observations acknowledging such awareness are insufficient to establish a basis for disqualification, absent a more particularized demonstration than was shown in this case.”
Regarding the evidentiary rulings, the court noted that “it is well-established that a judge’s adverse rulings may not serve as a basis for disqualification.” 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]
In a prior appellate proceeding, the Fourth DCA denied Client’s pretrial petition seeking to disqualify Judge in the trial court. The motion to disqualify Judge in that situation was based on alleged hostility toward Client’s counsel, Lawyer. The hostility allegedly arose as a result of a lengthy order written by Judge in a separate case, in which she characterized Lawyer’s conduct “as misleading and a fraud on the court.” After Judge submitted that order as a writing sample in connection with her application for appointment to the federal bench, Lawyer actively opposed her appointment. Lawyer wrote a letter to the nominating committee “challenging the facts contained in the order and questioning the judge’s suitability for appointment.” Judge did not get the federal judgeship.
Following the appeals court’s decision that disqualification was not warranted, Client’s case proceeded to trial. Lawyer did not personally represent Client at trial; instead, other members of the firm acted as trial counsel. Lawyer did appear in the courtroom at the end of closing arguments and after the jury verdict was returned. Client heard Judge saying that she had seen Lawyer in the courtroom and “that she ‘would never forgive him for what he did to me.’” Client’s trial counsel heard Judge’s statements and provided an affidavit stating that he heard Judge also say: “I will never forgive him and I took it personally. It was very hurtful and it made me cry.” Judge then allegedly added that trial counsel could communicate that sentiment to Lawyer.
Based on these developments, Client filed a petition asking the Fourth DCA to review the denial of the motion to disqualify Judge. The appeals court ordered Judge disqualified. “Accepting the allegations within the motion and affidavits as true, we conclude that the judge’s alleged inability to restrain either her utterances or her emotions in front of the petitioner would, if true, show that the experience profoundly affected her and made her future impartiality reasonably suspect. . . . Though we previously concluded that any hostility arising from the events of the judicial nominating process did not warrant disqualification, the judge allegedly opened the door and displayed the depth of such hostility by failing to remain silent despite the passage of time.” 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]
Lawyer represented Claimant in a workers’ compensation case. Claimant moved to disqualify the Judge of Compensation Claims (“JCC”) pursuant to Fla.R.Jud.Admin. 2.330, which governs motions to disqualify JCCs in workers’ comp matters. The JCC denied the motion. Claimant petitioned the First DCA for a writ of prohibition.
The appellate court granted the petition and ordered the JCC disqualified.
Claimant alleged that she had a reasonable fear that she would not get a fair and impartial hearing from the JCC because the JCC made “certain findings and ‘improper allegations’” against Lawyer in an unrelated workers’ compensation case. She also alleged that the JCC had referred Lawyer to the Florida Bar and the Department of Financial Services “for unfounded ethical and criminal violations in connection with the prior unrelated case.”
Mere referral to the Bar does not constitute grounds for disqualification. See 5-H Corp. v. Padavano, 708 So.2d 244 (Fla. 1997). In this case, however, Claimant alleged more – she asserted that the JCC, in the prior case, imposed sanctions against Lawyer in an order that “found [Lawyer] was ‘not credible’ (as a person, as opposed to testimonial credibility), had made ‘false and misleading written statements,’ and had a ‘willful and conscious intent’ to overcharge for legal services that were ‘excessive and arbitrary.’ The JCC further described [Lawyer]’s acts as ‘unconscionable and abusive’ and expressly stated that he believed that the attorney had conducted himself similarly in other cases, though no such case was before the JCC. In short, the JCC made findings that indicated not only acts of unprofessionalism by [Lawyer], but also acts of criminal deceit as a part of an established pattern of behavior in other cases not before him.”
Claimant’s allegations were sufficient to meet the standard for disqualification, which the court described as being required “where the facts alleged and established, which must be taken as true, would place a reasonably prudent person in fear of not receiving a fair trial.” 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]
Former Wife filed a motion to temporarily suspend Former Husband’s timesharing and visitation. The trial court held an evidentiary hearing at which the court allegedly refused to allow Former Husband to cross-examine Former Wife. Former Husband filed a motion to disqualify the trial judge, which the judge denied.
On petition for writ of prohibition, the First DCA ruled that the motion to disqualify “was legally sufficient and should have been granted. See Wade v. Wade, 123 So.3d 697, 698 (Fla. 3d DCA 2013) (granting petition for writ of prohibition and explaining that the judge’s refusal to allow a mother in a timesharing proceeding to conduct cross-examination ‘denied the Mother a most basic right of due process and reasonably caused her to fear that she would not receive a fair and impartial hearing’); Zuchel v. State, 824 So.2d 1044, 1046 (Fla. 4th DCA 2002) (granting petition for writ of prohibition and rejecting argument that the judge’s refusal to allow defense counsel to cross-examine the victim was merely a complaint about an adverse ruling because ‘the outright denial of the basic and fundamental right of cross-examination . . . would give a reasonably prudent person a well-founded fear of judicial bias’) (citation omitted; emphasis in original).” 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]
Defendant, a physician, and his P.A. were sued in a professional negligence case. At his deposition Defendant refused to answer questions about his termination from his former employer. The court compelled him to appear and answer. At Defendant’s second deposition, plaintiffs sought his personnel records directly from his former employer. Defendant objected to this non-party production. At the hearing Defendant argued that he complied with the court’s prior order and that the request for non-party production was a new matter. The judge “cut-off” defense counsel, granted the plaintiffs’ motion, and imposed monetary sanctions against Defendants.
At a hearing on Defendants’ motion for reconsideration “the judge made acerbic comments about petitioners and exhibited overall hostility toward both [Defendants] and their counsel.” Defendants filed a motion to disqualify the judge, which the judge denied.
The Fourth DCA granted Defendants’ petition for writ of prohibition and ordered the trial judge disqualified. Defendants had a reasonable fear of not receiving a fair and impartial trial. “[G]enerally a trial judge’s expression of dissatisfaction with counsel or a party’s behavior does not warrant disqualification. . . . However, the hearing transcripts indicate that the judge’s actions went beyond a mere expression of dissatisfaction and were misguided in part because of his misunderstanding or confusion surrounding the independent discovery requests and his unwillingness to consider [defense] counsel’s explanation accordingly.” 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]
After entry of a dissolution of marriage order and a supplemental final judgment, Husband moved to disqualify the trial judge. Husband alleged two claims: the judgment showed bias against Husband because it “substantially mirrored” Wife’s proposed judgment; and the judge’s comments to Husband’s expert witness demonstrated bias. The judge referred to the witness, a CPA, as Husband’s “friend wo is also an accountant.” The judge stated that he had “not placed much credibility on the testimony of [the] friend and accountant.” After the judgment was issued the witness wrote a letter to the judge complaining about the court’s statements supposedly belittling him. The judge called the witness, allegedly ““apparently to apologize for the lack of proper recognition and for the disparate treatment in the Judgment,” and also indicated that it was a “difficult case.”
The judge denied the disqualification motion as legally insufficient. Husband appealed.
The First DCA affirmed. Adverse rulings are insufficient to show bias, and “allegations about the supplemental final judgment discounting the credibility of [Husband]’s witness and tracking the language of [Wife]’s proposed supplemental final judgment amount to no more than complaints over an adverse ruling.” The judge’s statement about the “difficult case,” in fact, “showed a total lack of bias toward either party” (emphasis added). 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]
Judge was presiding over a complex civil action involving a claim and a counterclaim. Judge directed a verdict against Kazran on November 10. On November 20, Kazran filed a motion to disqualify Judge “based on complaints about the judge's actions and comments ‘over the course of this case.’” On December 1, Judge denied the motion as both untimely and legally insufficient.
The Second DCA denied Kazran’s petition for writ of prohibition. The motion was indeed timely, because the day on which the directed verdict ruling was rendered did not count toward the 10-day time limit for filing the motion under Fla.R.Jud.Admin. 2.330(e). The ruling, that the motion was legally insufficient, however, was correct. Adverse rulings are not grounds for disqualification. The appellate court denied the petition without prejudice to Kazran’s right to challenge Judge’s handling of the matter in his direct appeal of the final judgment. 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]
Judge is assigned to the delinquency division. There are a limited number of lawyers on the delinquency appointment registry. One of them is the former law partner of Judge’s former spouse. The dependency registry lawyer also rents space from and shares a receptionist with Judge’s former spouse. The former spouse receives no alimony or support from Judge.
Judge asked the Florida Supreme Court’s Judicial Ethics Advisory Committee for an advisory opinion regarding whether Judge is disqualified from cases in which the registry lawyer appears.
The Committee answered in the negative. The Committee analyzed the inquiry under Canon 3E(1) of the Florida Code of Judicial Conduct, which requires a judge to disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned. The Committee concluded that, under the facts presented, “because the inquiring judge receives no alimony or support from the judge’s former spouse, no reasonable person would question the judge’s impartiality if an attorney appears before the judge who maintains a business relationship with the judge’s former spouse.” Nor is disclosure to parties required. 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]
Judge was presiding over a suit that arose from an insurance coverage suit involving falling concrete in a condominium’s parking garage. Although there was no record evidence that the insurer had actually denied coverage, Judge made comments suggesting that he believed coverage had been denied. When the insurer’s counsel stated in a hearing that coverage had not been denied, Judge responded: “Then fork over the money.” Judge made other remarks indicating that he had made up his mind in advance, and also made comments inviting the insured’s counsel to seek sanctions against the insurer.
The insurer moved to disqualify Judge. After Judge denied the motion, the insurer petitioned the Third DCA for a writ of prohibition. The appellate court granted the petition. The court noted that the “startling remark” about forking over the money was by itself sufficient to leave the insurer with an objectively reasonable fear that it would not receive a fair trial. Other comments displayed Judge’s animosity toward the insurer or its counsel.
The appeals court acknowledged that “some of the trial court’s comments may have been intended as expressions of wit or erudition on his part.” These attempts fell flat. The issue of disqualification “focuses not on what the judge intended, but rather how the message is received and the basis of the feeling.” The court closed by suggesting that judges use attempts at humor with great caution, quoting from Sir Frances Bacon: “Judges ought to be more learned than witty; more reverend (sic) than plausible; and more advised than confident. . . . Patience and gravity of hearing is an essential part of justice; and an overspeaking judge is no well tuned cymbal.” 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]
Judge made comments to the effect that Orlando Police Department (“OPD”) officers “ignore subpoenas.” At a pre-trial conference in which the defense asked for a continuance on the ground that an OPD officer did not appear for a deposition, Judge stated that every lawyer in the room should initiate contempt proceedings against any OPD officer who fails to appear at a deposition. Additionally, 3 assistant state attorneys were involved in a Judicial Qualifications Commission (“JQC”) investigation regarding Judge that arose from a complaint filed by OPD.
The State Attorney’s Office filed a petition for a writ of prohibition, seeking to disqualify Judge from presiding over more than 50 cases involving the OPD on the ground of bias.
Although it noted that “[w]hether the State has an objective fear of bias is a close one, the Fifth DCA denied the petition. The motions in each case were identical; none were fact-specific. “Motions for disqualification that paint with such a broad brush are disfavored.” (Citation omitted.) There was no evidence indicating that Judge had demonstrated any bias in cases in which OPD officers properly responded to subpoenas. The mere filing of a complaint with the JQC is not a basis for disqualification. (Citation omitted.) In sum, the court ruled that allegations were legally insufficient to warrant Judge’s disqualification. 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]
Former Husband petitioned the Fourth DCA for a writ of prohibition to disqualify the trial judge from a post-dissolution case. Former Husband alleged that the judge did not allow him to present argument or additional evidence before the judge ruled on Former Wife’s motion for temporary support.
The appellate court granted the writ. Former Husband’s allegation “is sufficient to place a reasonably prudent person in fear of not receiving a fair hearing on his legal claims.” The court vacated the prior judge’s order and remanded for reassignment to a different judge. 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]
A party to four related civil suits moved to disqualify Judge Sasser, who was presiding over one of the cases. Movant alleged that Judge Sasser had defamed him when discussing his cases with Judge Cox, who was presiding over the other 3 cases. Movant wanted to transfer Judge Sasser’s case to Judge Cox, but Judge Sasser denied to the motion to transfer. Judge Cox recused himself from the 3 cases.
Movant sought to depose Judges Cox and Sasser. Judge Sasser held a hearing on Movant’s motion to compel her deposition. Judge Sasser passed the ruling on to another judge. Movant then filed a motion to disqualify Judge Sasser, accusing her of “poisoning the well” with Judge Cox and becoming “‘antagonistic, prejudiced and biased’ against [Movant] because he ‘sought to depose her.’” After Judge Sasser denied the motion to disqualify as legally insufficient, Movant then petitioned the Fourth DCA for a writ of prohibition.
The appellate court denied the petition. “The purported incidents of defamation and sabotage are tied to nothing: nothing in the record, nothing the judge said at a hearing, nothing from anyone who heard a defamatory statement. . . . No objective information contained in the motion to recuse was legally sufficient to support the standard for disqualification.” (Footnote omitted; in the footnote, the court pointed out that “no Florida case has allowed disqualification based solely on hearsay.”)
Finally, the court noted that Movant could not “bootstrap his attempt to depose the judge into a conflict that would force her recusal.” Litigants may not probe into a judge’s mental processes. The court stated that it had “found no case where a judge has been ‘required to submit to discovery or compelled to testify in connection with a motion for his disqualification.’” (Citation omitted.) 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]
Trial Judge entered judgment against Petitioners, finding that both Petitioners and Respondents had engaged in a scheme to defraud a third party. The court did not consider the merits of the complaint or the counterclaims, but simply granted relief to no party based on the doctrine of unclean hands. Petitioners appealed. The Second DCA reversed and remanded. On January 23, within 10 days of the appellate court’s opinion, Petitioners filed a motion to disqualify the trial judge on the ground that, based on his ruling, Judge “unquestionably believes that [Petitioners] engaged in a conspiracy to defraud.” Judge did not receive the motion until March 3 and he denied it as legally insufficient on March 24.
Petitioners sought a writ of prohibition from the Second DCA. The court denied the petition.
Petitioners attempted to serve the motion on Judge by leaving it in a drop-box located in a public hallway at the courthouse on January 23. Judge did not actually receive a copy of the motion until March 3; he did not learn of the motion’s existence until seeing a copy of a proposed disqualification order on February 27. A party moving to disqualify a judge must serve a motion on the judge as set forth in Fla.R.Civ.P. 1.080 and Fla.R.Jud.Admin. 2.516, concerning email service. Petitioners did not do this. “The reason for the rule requiring service of a motion to disqualify on the judge is to insure that the judge is actually aware of the existence of the motion. See Tobkin v. State, 889 So.2d 120, 122 (Fla. 4th DCA 2004). In this case, Judge Barton was not actually aware of the existence of the motion until over thirty days after it had been filed. This was due to the means of service chosen by the petitioners, which was not only actually ineffective but procedurally improper.” Furthermore, because service was defective, the 30-time period within which Judge was required to rule on the motion did not begin to run until Judge actually received the motion. 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]
A judge asked the Supreme Court’s Judicial Ethics Advisory Committee to reconsider its prior opinion 13-19 concerning a judge’s obligations relating to lawyers who serve on the judge’s campaign committee to raise funds or support. The inquiring judge asserted that Opinion 13-19 “is ‘not practical and does not take into account many circumstances involved in judicial campaigns.’” The Committee declined the invitation to revise its prior opinion. A summary of the questions posed and the Committee’s answers appears below.
QUESTION 1: “Must a judge seeking re-election who has appointed a “‘committee of responsible persons’ for fundraising purposes, and includes attorneys on that committee, always disclose those attorneys’ status to counsel or parties opposing the attorney(s) in proceedings before the judge, or may the judge use discretion based on the extent to which a given committee member has actually participated in the re-election campaign?” ANSWER 1: “Yes. The judge must disclose in all such cases regardless of how active or involved a committee member actually has been.”
QUESTION 2: “Must the judge agree to disqualification in all post-disclosure cases if requested?” ANSWER 2: “No. The mere fact an attorney has contributed to the judge’s campaign or assisted with the judge’s committee, without more, does not require automatic recusal.”
QUESTION 3: “Must a judge assigned to a civil division, in which many cases may be inactive or in default status, actively seek out the attorney or parties in such cases to make the necessary disclosure, or may the judge limit such disclosure to circumstances where the judge is actually asked to take action in the case?” ANSWER 3: “No. The judge may limit disclosure to those cases in which some action by the judge is requested.”
QUESTION 4: “May the judge perform the necessary disclosure using the judge’s official letterhead at public expense?” ANSWER 4: “Yes, because the disclosure is for the benefit of litigants and the integrity of the judicial system, not for the judge’s personal benefit.” 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]
A convicted, incarcerated Defendant engaged in “a round of postconviction challenges and an unsuccessful appeal.” He then filed a motion to disqualify the trial judge from presiding over further postconviction proceedings. At the time he filed the disqualification motion, however, Defendant had no pending cases before the trial court – although he later filed a motion to correct, modify, or vacate his sentence.
Defendant filed a petition for a writ of prohibition with the First DCA, arguing “that because the judge failed to rule on his motion for disqualification within 30 days of its service, disqualification is mandated by [the time limit prescribed by] Florida Rule of Judicial Administration 2.330(j).”
The First DCA rejected Defendant’s contention and denied his petition, stating that it found “no authority dictating that a motion to disqualify filed when the trial court’s jurisdiction has not otherwise been invoked is held in abeyance until the court possesses jurisdiction over some other substantive matter. Nor would such a pronouncement be reasonable given the strict and unforgiving nature of the 30-day requirement set forth in rule 2.330(j), and the burden such a procedure would place on trial judges in that circumstance. We conclude that [Defendant’s] motion for disqualification, having been filed at a time when the trial court’s jurisdiction had not been invoked for any other purpose, was void ab initio and therefore did not implicate the provision of rule 2.330(j) upon which [Defendant] relies.” 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]
Defendant was accused of intentionally setting his wife on fire and charged with attempted felony murder and arson. Defendant’s wife testified at the plea hearing and agreed to a 20-year sentence. After hearing the wife’s testimony, the trial judge stated that “[n]o person deserves that type of treatment” and that “no human being, no animal, no insect deserves that kind of treatment.” Defendant then blurted out, “Give me the death penalty, then.” The judge replied, “[b]elieve me, I wish I could.”
During the plea colloquy Defendant denied his culpability, so the court set the case for trial. Defendant then filed a motion to disqualify the judge based on his statements and his expression of sympathy for the victim. The judge denied the disqualification motion as legally insufficient. Defendant was tried and convicted. He appealed. The Fourth DCA reversed and remanded for a new trial before a new judge. The judge’s comments were sufficient to create a well-founded fear in Defendant that he would not get a fair trial. 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]
Petitioner filed and served a motion to disqualify the trial judge. While that motion was pending, the judge ruled on a motion to dismiss. Petitioner sought a writ of prohibition, which the First DCA granted and ordered the judge disqualified.
“‘[W]hen a motion for disqualification or recusal is pending, it is the court’s duty to rule on that motion before ruling on anything else.” Sibley v. Sibley, 885 So.2d 980, 983 (Fla. 3d DCA 2004) (citing Fuster-Escalona v. Wisotsky, 781 So.2d 1063 (Fla. 2000). In addition, because the motion to disqualify was not ruled upon within the requisite 30 days, it is deemed to have been granted under rule 2.330(j), Florida Rules of Judicial Administration.” 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]
request. Wife also filed a motion to disqualify Judge, which Judge denied as legally insufficient.
The Fifth DCA quashed the order denying the motion and ruled that Judge was disqualified. Judge’s ex parte communication with Wife presented a legally sufficient reason for disqualification, especially where Wife’s failure to respond to the “friend” request “creates a reasonable fear of offending the solicitor. The ‘friend’ request placed the litigant between the proverbial rock and a hard place: either engage in improper ex parte communications with the judge presiding over the case or risk offending the judge by not accepting the ‘friend’ request.”
The appeals court noted that the Judge was bound by the Fourth DCA’s precedent on the question, Domville v. State, 103 So.3d 184 (Fla. 4th DCA 2012), rev. denied, State v. Domville, 110 So.3d 441 (Fla. 2013). The court, however, expressed “serious reservations” about the Domville decision, pointing out that “Domville’s logic would require disqualification in cases involving an acquaintance of a judge. . . . Requiring disqualification in such cases does not reflect the true nature of a Facebook friendship and casts a large net in an effort to catch a minnow.” Chace v. Loisel, __ So.3d __ (Fla. 5th DCA, No. 5D13-4449, 1/24/2014).
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).