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Disqualification of a Judge

Author johnbsims3
Admin Male

#1 | Posted: 24 Nov 2006 18:50 
Disqualification of a Judge


Case excerpts:

See Pressey v. State, 710 So.2d 688 (Fla. 4th DCA 1998).

Thus, the task before us on appeal from the denial of the motion to disqualify is to determine the legal sufficiency of the motion based on whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial proceeding. Hayes v. State, 686 So.2d 694, 695 (Fla. 4th DCA 1996), rev. dismissed, 691 So.2d 1081 (Fla. 1997). In this regard, we apply the test to be used in reviewing a motion for disqualification, as set out by the supreme court in MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332 (Fla. 1990).

The court held that the facts alleged in a motion to disqualify need only show a movant's well-grounded fear that the movant will not receive a fair trial. Id. at 1334. In determining whether the allegations are sufficient, the facts must be taken as true and must be viewed from the movant's perspective. Id. Whenever an allegation is raised which questions the judge's neutrality as to one of the parties, the judge can only pass on the legal sufficiency of the allegation; if it is legally sufficient, the trial judge must grant the motion and proceed no further. Id. at 1339.

Although it does not appear to us that the outcome of the proceedings below in any way rested upon the credibility of any of the individuals involved, we nevertheless are compelled to conclude that the judge's comments were sufficient to lead a reasonably prudent person to believe that other rulings might be affected by his admission, and hence, to fear that the proceedings would not be entirely fair and impartial. Cf. Fogan v. Fogan, 706 So.2d 382 (Fla. 4th DCA 1998)(granting petition for writ of prohibition upon a finding that judge should have granted motion to disqualify in dissolution proceeding where his statement that he could not punish either of the parties if there were grounds to do so amounted to an admission that he could not be fair and impartial).

It is not a question of how the judge feels; it is a question of what feeling resides in the movant's mind, and the basis of such a feeling. See State ex rel. Morgan v. Baird, 660 So.2d 328, 330 (Fla. 2d DCA 1995). The judge herein, after admitting he would have difficulty ruling on matters of credibility with regard to certain individuals having a stake in the outcome of the case, under an abundance of caution should have disqualified himself after being requested to do so. SMITH v. SANTA ROSA ISLAND AUTH.
(Dist. Ct. App. 1st Dist. 1998)

Attempts to refute the charges of partiality exceed the scope of inquiry and alone establish grounds for disqualification. See Valltos v. State, 707 So.2d 343, 344 (Fla. 2d DCA 1997); Shumpert, 703 So.2d at 1129.

A response filed on behalf of the trial judge may create an intolerable adversary atmosphere between the trial judge and the litigant which itself may serve as the basis for disqualification. See Valltos, 707 So.2d at 345 (quoting Bundy v. Rudd, 366 So.2d 440, 442 (Fla. 1978)).

Moreover, contrary to plaintiffs' argument, on certiorari review a movant is "not required to demonstrate specific prejudice in order to justify disqualification." Junger Utility & Paving Co., Inc. v. Myers, 578 So.2d 1117, 1119 (Fla. 1st DCA 1989); Zarco Supply Co. 658 So.2d at 154.

Delgado v. Concentrated Chemical Co., 644 So.2d 173, 174 (Fla. 3d DCA 1994)(holding that appeal of disqualification determination was untimely where claimant did not appeal within the statutory twenty-day period and claimant did not fall within any exception to twenty-day rule).

A claim that a trial judge has made an error of law is not a basis for disqualification. See Barwick v. State, 660 So.2d 685, 692 (Fla. 1995).

Rivera v. State (S.Ct. 1998)...We have repeatedly held that a motion to disqualify a judge "must be well-founded and contain facts germane to the judge's undue bias, prejudice, or sympathy." Jackson v. State, 599 So.2d 103, 107 (Fla. 1992); Gilliam v. State, 582 So.2d 610, 611 (Fla. 1991); Dragovich v. State, 492 So.2d 350, 352 (Fla. 1986). The motion will be found legally insufficient "if it fails to establish a well-grounded fear on the part of the movant that he will not receive a fair hearing." Correll v. State, 698 So.2d 522, 524 (Fla. 1997). The fact that the judge has made adverse rulings in the past against the defendant, or that the judge has previously heard the evidence, or "allegations that the trial judge had formed a fixed opinion of the defendant's guilt, even where it is alleged that he judge discussed his opinion with others," are generally considered legally insufficient reasons to warrant the judge's disqualification. Jackson, 599 So.2d at 107

Compare Suarez, 527 So.2d at 192 (finding judge's extra-judicial statements to Naples Daily News compelled judge's disqualification because statements were sufficient to warrant fear on defendant's part that he would not receive a fair hearing from judge)

we allow post-conviction depositions of the judge who presided over the defendant's trial "only when the testimony of the presiding judge is absolutely necessary to establish factual circumstances not in the record." State v. Lewis, 656 So.2d 1248, 1250 (Fla. 1994). The judge's thought processes may not be inquired into and the judge may refuse to answer any question he or she deems intrusive. Id. at 1250. We also cautioned that such discovery techniques "should not be utilized as a technique to disqualify the original trial judge from further hearings in the case. The need to have a trial judge testify is very limited in scope and particularly applies only to factual matters that are outside the record." Id. at 1250 n.3 (emphasis added).

Suarez v. Dugger, 527 So.2d 190, 193-194 (Ehrlich, J., concurring specially with an opinion in which McDonald, C.J., and Overton and Kogan, JJ., concurred). As this case vividly illustrates, so long as there is a reasonable prospect that a case may be back before a judge on collateral proceedings, a judge "must be circumspect and careful" not to make statements, even to another government agency, "because it is so easy to construe a statement, although innocently made and made in the abstract, as applicable to a matter that may come before the court at a later time and thereby be indicative of a prejudice by the judge as to the matter at hand." Id.

A motion for disqualification may be filed at "any time before final judgment." 38.02, Fla. Stat. (1991).

See also Fla. R. Jud. Admin. 2.160(e) ("A motion to disqualify shall be made within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for an immediate ruling.").

Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) (holding that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution").

A motion for disqualification must be granted if it is legally sufficient. See Livingston v. State, 441 So.2d 1083, 1087 (Fla. 1983); Dickenson v. Parks, 104 Fla. 577, 140 So. 459, 462 (Fla. 1932); Barber v. MacKenzie, 562 So.2d 755, 757 (Fla. 3d DCA 1990); Breakstone v. Mackenzie, 561 So.2d 1164, 1167 (Fla. 3d DCA 1989), affirmed in relevant part, 565 So.2d 1332 (Fla. 1990). In Breakstone, this court stated:
The affiant must recite "facts and circumstances that would lead any normal human being in the position of [the movant] to 'fear' that he would not receive a fair trial . . . ." "'If the attested facts supporting the suggestion are reasonably sufficient to create such a fear, it is not for the trial judge to say that it is not there.'" So long as the allegations "'are not frivolous or fanciful, they are sufficient to support a motion to disqualify . . . .'"
561 So.2d at 1167-68 (citations omitted); see also Livingston, 441 So.2d at 1087; Barber, 562 So.2d at 757. BETTE C. LYTLE, Appellant,
vs.
CARLENE ROSADO, Appellee.
CASE NO. 98-951
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
23 Fla. Law W. D 1246, 711 So.2d 213, CASE NO. 98-951, LOWER TRIBUNAL NO. 97-25799.

The Court hereby denies the petition or complaint for writ of prohibition, because Judge John Adkins is a successor judge and the record does fail to indicate that Judge John Adkins ruled that he was in fact not fair and impartial in the case. Rule 2.160(g) of the Florida Rules of Judicial Administration.
The circuit court appears to have construed Rule 2.160(g) as insulating from further review a decision of a successor judge denying disqualification so long as the judge does not actually rule that he is unfair and partial.
A successor judge is entitled by rule to pass on the truth of the facts alleged in support of a motion to disqualify. Fogan v. Fogan, 706 So.2d 382, 23 Fla. L. Weekly D 506 (Fla. 4th DCA 1998). On review of the successor judge's denial of a motion to disqualify, the test is not whether said judge explicitly ruled that he is in fact not fair and impartial but whether the record clearly refutes the successor judge's decision to deny the motion.

A petition for writ of prohibition is the proper vehicle for obtaining review of a lower tribunal's denial of a motion for disqualification. See Bundy v. Rudd, 366 So.2d 440 (Fla. 1978). An order of the circuit court ruling on a petition for writ of prohibition is a final order reviewable by appeal. See Guzzetta v. Hamrick, 656 So.2d 1327 (Fla. 5th DCA 1995), rev. denied, 663 So.2d 630 (Fla. 1995).

In a situation more comparable to the instant case, we have held that a trial judge has authority to reduce a prior oral ruling to writing after the filing of a motion to disqualify the judge. Fischer v. Knuck, 497 So.2d 240, 243 (Fla. 1986) (motion for recusal untimely when filed eleven days after testimony had been taken and five days after judge had announced his ruling orally).

Disqualification is ordinarily required in any situation where the facts are reasonably sufficient to create a well-founded fear in the mind of the moving party that he will not receive a fair trial. Fischer v. Knuck, 497 So.2d 240, 242 (Fla. 1986). In MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332 (Fla. 1990), and Livingston v. State, 441 So.2d 1083, 1086 (Fla. 1983), the court has made clear that the legal sufficiency of a motion to disqualify a trial judge turns on whether "the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial." 565 So.2d at 1335; 441 So.2d at 1087. Further in Michaud-Berger v. Hurley, 607 So.2d 441, 446 (Fla. 4th DCA 1993), we held that the facts underlying the well-grounded fear must be judged from the perspective of the moving party.
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Author johnbsims3
Admin Male

#2 | Posted: 24 Nov 2006 18:51 | Edited by: johnbsims3 
38.01 Disqualification when judge party; effect of attempted judicial acts. ---
Every judge of this state who appears of record as a party to any cause before him or her shall be disqualified to act therein, and shall forthwith enter an order declaring himself or herself to be disqualified in said cause. Any and all attempted judicial acts by any judge so disqualified in a cause, whether done inadvertently or otherwise, shall be utterly null and void and of no effect. No judge shall be disqualified from sitting in the trial of any suit in which any county or municipal corporation is a party by reason that such judge is a resident or taxpayer within such county or municipal corporation.
History: s. 2, ch. 16053, 1933; CGL 1936 Supp. 4155(1); s. 1, ch. 59-43; s. 205, ch. 95-147.
38.02 Suggestion of disqualification; grounds; proceedings on suggestion and effect. ---
In any cause in any of the courts of this state any party to said cause, or any person or corporation interested in the subject matter of such litigation, may at any time before final judgment, if the case be one at law, and at any time before final decree, if the case be one in chancery, show by a suggestion filed in the cause that the judge before whom the cause is pending, or some person related to said judge by consanguinity or affinity within the third degree, is a party thereto, or is interested in the result thereof, or that said judge is related to an attorney or counselor of record in said cause by consanguinity or affinity within the third degree, or that said judge is a material witness for or against one of the parties to said cause, but such an order shall not be subject to collateral attack. Such suggestions shall be filed in the cause within 30 days after the party filing the suggestion, or the party's attorney, or attorneys, of record, or either of them, learned of such disqualification, otherwise the ground, or grounds, of disqualification shall be taken and considered as waived. If the truth of any suggestion appear from the record in said cause, the said judge shall forthwith enter an order reciting the filing of the suggestion, the grounds of his or her disqualification, and declaring himself or herself to be disqualified in said cause. If the truth of any such suggestion does not appear from the record in said cause, the judge may by order entered therein require the filing in the cause of affidavits touching the truth or falsity of such suggestion. If the judge finds that the suggestion is true, he or she shall forthwith enter an order reciting the ground of his or her disqualification and declaring himself or herself disqualified in the cause; if the judge finds that the suggestion is false, he or she shall forthwith enter the order so reciting and declaring himself or herself to be qualified in the cause. Any such order declaring a judge to be disqualified shall not be subject to collateral attack nor shall it be subject to review. Any such order declaring a judge qualified shall not be subject to collateral attack but shall be subject to review by the court having appellate jurisdiction of the cause in connection with which the order was entered.
History: s. 3, ch. 16053, 1933; CGL 1936 Supp. 4155(2); s. 1, ch. 26890, 1951; s. 6, ch. 63-559; s. 206, ch. 95-147.
38.03 Waiver of grounds of disqualification by parties. ---
The parties to any cause, or their attorneys of record, may, by written stipulation filed in the cause, waive any of the grounds of disqualification named in s. 38.02 and such waiver shall be valid and binding as to orders previously entered as well as to future acts of the judge therein; provided, however, that nothing herein shall prevent a judge from disqualifying himself or herself of his or her own motion under s. 38.05.
History: s. 4, ch. 16053, 1933; CGL 1936 Supp. 4155(3); s. 207, ch. 95-147.
38.04 Sworn statement by judge holding himself or herself qualified. ---
Whenever any judge shall enter an order under s. 38.02 declaring qualification to act in said cause, he or she shall contemporaneously therewith file therein a sworn statement that to the best of his or her knowledge and belief the ground or grounds of the disqualification named in the suggestion do not exist.
History: s. 5, ch. 16053, 1933; CGL 1936 Supp. 4155(4); s. 208, ch. 95-147.
38.05 Disqualification of judge on own motion. ---
Any judge may of his or her own motion disqualify himself or herself where, to the judge's own knowledge, any of the grounds for a suggestion of disqualification, as named in s. 38.02, exist. The failure of a judge to so disqualify himself or herself under this section shall not be assignable as error or subject to review.
History: s. 6, ch. 16053, 1933; CGL 1936 Supp. 4155(5); s. 6, ch. 63-559; s. 209, ch. 95-147.
38.06 Effect of acts where judge fails to disqualify himself or herself. ---
In any cause where the grounds for a suggestion of disqualification, as set forth in s. 38.02, appear of record in the cause, but no suggestion of disqualification is filed therein, the orders, judgments, and decrees entered therein by the judge shall be valid. Where, on a suggestion of disqualification the judge enters an order declaring himself or herself qualified, the orders, judgments, and decrees entered therein by the said judge shall not be void and shall not be subject to collateral attack.
History: s. 7, ch. 16053, 1933; CGL 1936 Supp. 4155(6); s. 210, ch. 95-147.

Fla. Stat. 38.10 Disqualification of judge for prejudice; application; affidavits; etc. ---

Whenever a party to any action or proceeding makes and files an affidavit stating fear that he or she will not receive a fair trial in the court where the suit is pending on account of the prejudice of the judge of that court against the applicant or in favor of the adverse party, the judge shall proceed no further, but another judge shall be designated in the manner prescribed by the laws of this state for the substitution of judges for the trial of causes in which the presiding judge is disqualified. Every such affidavit shall state the facts and the reasons for the belief that any such bias or prejudice exists and shall be accompanied by a certificate of counsel of record that such affidavit and application are made in good faith. However, when any party to any action has suggested the disqualification of a trial judge and an order has been made admitting the disqualification of such judge and another judge has been assigned and transferred to act in lieu of the judge so held to be disqualified, the judge so assigned and transferred is not disqualified on account of alleged prejudice against the party making the suggestion in the first instance, or in favor of the adverse party, unless such judge admits and holds that it is then a fact that he or she does not stand fair and impartial between the parties. If such judge holds, rules, and adjudges that he or she does stand fair and impartial as between the parties and their respective interests, he or she shall cause such ruling to be entered on the minutes of the court and shall proceed to preside as judge in the pending cause. The ruling of such judge may be assigned as error and may be reviewed as are other rulings of the trial court.

History: s. 4, ch. 7852, 1919; RGS 2674; s. 1, ch. 9276, 1923; CGL 4341; s. 3, ch. 83-260; s. 212, ch. 95-147.
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