Basic Reasons for Disqualification

1. Basic Reasons for Disqualification

2. 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. 2. Actions taken by the Judge, i.e. ex-parte communication or pre-judgment of an issue.

3. Judicial Disqualification • Disqualification of trial judges is governed by Florida Statutes, Florida Rules of Judicial Administration, and the Florida Judicial Conduct Code. • Canon 3E of the Florida Judicial Conduct Code applies to all judges, but there are no statutory or mandatory procedures in Florida that apply to disqualification of appellate judges . • A disqualification made by a Florida Supreme Court justice is not reviewable. In re Estate of Carlton, 378 So. 2d 1212 (Fla. 1979).

4. Canon 3E of Judicial Conduct Code: Disqualification • A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, i.e.: • Judge has personal bias or prejudice concerning party or party’s lawyer. • Judge served as a lawyer or lower court judge in the matter in controversy. • Judge has personal knowledge of disputed evidentiary facts. • Judge has economic interest in subject matter. • A judge shall keep informed about the judge’s personal and fiduciary economic interests, and make a reasonable effort to keep informed about the economic interests of the judge’s spouse and minor children residing in the judge’s household.

5. Canon 3F of Judicial Conduct Code: Remittal of Disqualificaiton • If disqualification under 3E is not based on personal bias or prejudice concerning a party, the Judge may continue to participate if the parties and lawyers agree that the Judge should not be disqualified. • This agreement shall be incorporated in the record of the proceeding.

6. DISQUALIFICATION OF TRIAL JUDGES 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.

7. Fla. R. Jud. Admin. 2.330DISQUALIFICATION OF TRIAL JUDGES • A motion to disqualify must show: 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.

8. Fla. Statutes, Chapter 38 Grounds for Disqualification • Judge is a party or has some interest in the result of the cause. Fla. Stat. §38.02. • Judge is related to an attorney in the cause by consanguinity or affinity within the third degree. Id. • Judge is a material witness for or against one of the parties to the cause. Id. • Some person related to the Judge by consanguinity or affinity within the third degree is a party or has some interest in the result of the cause. Id. • Judge is prejudiced or partial in the case. Fla. Stat. § 38.10.

9. Are Grounds Legally Sufficient? 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).

10. Grounds for Initial v. Successive Motions to Disqualify under Fla. R. Jud. Admin. 2.330 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 • Judge shall determine legal sufficiency of the motion and shall not pass on the truth of the facts alleged. • Judge must grant disqualification if motion is legally sufficient and must deny disqualification if motion is legally insufficient. • If a judge has been previously disqualified based on alleged prejudice or partiality, a successor judge shall not be disqualified based on a successive motion by the same party unless the successor judge rules that he or she is in fact not fair or impartial in the case.

11. Grounds for Initial v. Successive Motions to Disqualify under Fla. Stat. § 38.10 INITIAL MOTION TO DISQUALIFY based on allegations of prejudice or partiality SUCCESSIVE MOTION TO DISQUALIFY based on allegations of prejudice or partiality • Allegation of prejudice or partiality is enough. Fla. Stat. § 38.10. • Successor judge only disqualified if judge admits and holds that it is a fact that he or she does not stand fair and impartial between the parties. Fla. Stat. § 38.10.

12. Judge Disqualified? (yes/no) • Judge previously represented (as a practicing attorney) a litigant ? - 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). • Judge is a referee in an attorney’s pending disciplinary action? - 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).

13. Judge Disqualified? (yes/no) • Judge previously presided over parties’ Dissolution of Marriage and is presiding over Post-Judgment partition action brought by Former Wife regarding property in existence at time of Final Judgment? Former Wife’s Motion for Disqualification alleges Judge is material witness in the cause based on his memory of dissolution proceedings. - 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). • Judge holds in camera interviews with minor children in contested dissolution action to determine temporary time-sharing. Neither party desired a court reporter to transcribe interviews. Mother later discovers that Judge provided minor children with her e-mail address and minor children have e-mailed Judge regarding complains about Mother. The minor children’s communications were made available to both parties and were made a part of the record by the Mother. Mother files Motion for Disqualification based on impartiality of Judge. - 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).

14. Judge Disqualified? (yes/no) 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). • Judge residing over contested time-sharing matter informs parties that he called minor children’s school to verify whether Mother listed Father as emergency contact. Based on this communication, Judge finds Mother’s testimony non-credible and modifies time-sharing. - 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).