Basic Reasons for Disqualification. Why Disqualify?. 1. Relationships between the Judge and the attorneys, litigants or subject matter of the case, i.e. financial benefit to the Judge or representation of Judge by attorney.
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Basic Reasons for Disqualification
1. Relationships between the Judge and the attorneys, litigants or subject matter of the case, i.e. financial benefit to the Judge or representation of Judge by attorney.
2. Actions taken by the Judge, i.e. ex-parte communication or pre-judgment of an issue.
In re Estate of Carlton, 378 So. 2d 1212 (Fla. 1979).
Any party, including the state, may move
to disqualify the trial judge assigned to the
case on grounds provided by rule, by
statute, or by the Code of Judicial Conduct.
Fla. R. Jud. Admin. 2.330.
1. Party fears an unfair trial or hearing due to the Judge’s prejudice or bias.
2. The Judge or Judge’s relation by consanguinity or affinity within the third degree is a party or has an interest in the result.
3. The Judge is related to an attorney in the cause.
4. The Judge is a material witness for or against one of the parties in the cause.
In determining whether a motion to disqualify a judge is legally sufficient, courts look to see whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial.
Fla. R. Jud. Admin. 2.330; Barnhill v. State, 834 So. 2d 836 (Fla. 2002); Chamberlain v. State, 881 So.2d 1087 (Fla. 2004).
Initial motion to disqualify based on allegations of prejudice or partiality of judge
Successive motion to disqualify based on allegations of prejudice or bias of judge
INITIAL MOTION TO DISQUALIFY based on allegations of prejudice or partiality
SUCCESSIVE MOTION TO DISQUALIFY based on allegations of prejudice or partiality
Fla. Stat. § 38.10.
- Not disqualified, provided there is no recent confidential relationship and the extent of prior contact was not meaningful.
Milani v. Palm Beach County, 973 So. 2d 1222 (Fla. 4th DCA 2008).
- Not disqualified, unless it can be shown that the Judge has a personal bias or prejudice concerning a party or a party’s lawyer.
Metsch v. Traeger, 834 so. 2d 877 (Fla. 3d DCA 2003).
- Not disqualified. A trial judge does not become material witness in a cause merely because he has knowledge of what occurred before him in a prior proceeding. Denial of Former Wife’s Motion for Disqualification in her action for partition on ground that Judge was allegedly proceeding upon his memory of testimony in divorce case prior to final judgment and was therefore witness in the cause was not error.
Wilisch v. Wilisch, 335 So.2d 861 (Fla. 3d DCA 1976).
- Disqualified. The surreptitious nature of the communications together with the conspiratorial tone used by the children in those communications would prompt a reasonably prudent person to fear that the judge was no longer neutral because she had entered into a confidential relationship with the children, both of whom expressed very negative feelings toward the Mother.
Frengel v. Frengel, 880 So. 2d 763 (Fla. 2d DCA 2004).
5. Attorney joins as co-counsel in pending criminal case. Judge previously entered standing order recusing himself from all cases with Attorney based on known conflict. Criminal Defendants petition to disqualify Judge.
- Not disqualified. The alleged conflict was known by the new attorney and created by a decision to retain a new lawyer late in the proceeding.
Sume v. State, 773 So. 2d 600 (Fla. 1st DCA 2000).
- Disqualified. Judge’s independent investigation denied Mother’s due process rights and required disqualification.
Albert v. Rogers, 57 So. 3d 233 (Fla. 4th DCA 2011).
7. Judge residing over a contested dissolution case involving a request for permanent alimony called Wife an “alimony drone” and a “woman scorned”.
- Disqualified. Judge’s words and actions reasonably gave Wife legitimate fear that Wife would not receive fair trial in dissolution action.
Valdes-Fauli v. Valdes- Fauli, 903 So. 2d 214 (Fla. 3d DCA 2005).