Motion To Disqualify Trial Judge
What do you do when you’ve just gotten underway in your case, and after a few motion hearings before the trial judge, you come to believe that the judge is biased or prejudiced against you or your attorney? The remedy is file a motion to disqualify the judge. Do not, however, be hasty in making the decision to file such a motion.
Under Florida Rule of Judicial Administration 2.330 (c) a motion to disqualify must be in writing; must allege specific facts and reasons upon which the movant relies as grounds for the disqualification; be sworn to by the party signing the motion under oath or by separate affidavit; and include the dates of all previously granted motions to disqualify and the dates of the orders granting those motions. Additionally, the attorney for the moving party shall also separately certify that the motion and the client’s statements are made in good faith. The motion must be filed 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. Rule 2.330 (e).
Once the above requirements are met, the judge must enter an order granting disqualification if the motion to disqualify is “legally sufficient.” See Rule 2.330(f). The motion is legally sufficient if it shows the party’s well-grounded fear that the party will not receive a fair trial. See Livingston v. State, 441 So.2d 1083, 1087 (Fla.1983). In other words, would the facts (which must be taken as true in a motion to disqualify) prompt a reasonably prudent person to fear that he could not get a fair and impartial trial. See e.g., Peterson v. Asklipious, 833 So. 2d 262 (Fla. 4th DCA 2002). Hence, there must be an objective basis for the motion. Just because the judge has ruled against you in the instant case, or in other cases, does not warrant disqualification. See e.g., Hardwick v. Dugger, 648 So. 2d 100, 103 (Fla. 1994). Examples of an objective basis for disqualification are when the judge enters an adverse ruling without allowing you a fair opportunity to present evidence or argument regarding a significant issue. See Keating v. State, 110 So. 3d 538 (Fla. 4th DCA 2013); Where the lawyer for the other party co-chairs the judge’s ongoing campaign for reelection. See Caleffe v. Vitale, 488 So. 2d 627 (Fla. 4th DCA 1986); Or, as in a recent case, the judge sends a “friend” request to one of the parties to the lawsuit. See Chace v. Loisel, 5D13-4449, 2014 WL 258620 (Fla. Dist. Ct. App. Jan. 24, 2014). On the other hand, a judge is not required to disqualify himself where the attorney for the opposing party had made a legal campaign contribution to judge’s political campaign. MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332, 1335 (Fla. 1990).
Of significance, in considering a motion to disqualify, a trial judge cannot pass on the truth of the facts alleged and must view those facts from the perspective of the moving party. Frengel v. Frengel, 880 So. 2d 763 (Fla. 2d DCA 2004). In other words, the judge cannot issue an order denying the motion to disqualify wherein he or she disputes the facts alleged in the movant’s affidavit(s). As noted above, the judge’s sole inquiry on a motion to disqualify is whether the motion is “legally sufficient.” If the judge goes beyond a determination of the legal sufficiency of the motion, this alone will be sufficient grounds to reverse the judge on appeal. MacKenzie supra.
A motion made during a hearing or at trial shall be ruled on immediately and any other motion to disqualify must be ruled on within thirty days following its presentation to the court. Rule 2.330, subsections (e) and (j).
If the trial judge denies your motion to disqualify the appropriate remedy is to file a writ of prohibition with the Court of Appeals in the district where the action is pending.