By: Charles B. Jimerson, Esq. and Francisco J. Rolon, J.D. Candidate
Judges have an ethical obligation to be fair and impartial, but sometimes there are circumstances where attorneys are within their rights to move to disqualify judges to ensure judicial neutrality. Disqualification is governed by rules and statutes, and attorneys in Florida are given a statutory right to disqualify judges if prejudice is feared. 38.10, Fla. Stat. (2012). These rules and statutes frequently overlap, use antiquated language, and give attorneys short time frames to raise the issue of disqualification. For these reasons, attorneys must be aware of all rules and procedures governing disqualification before a potential conflict arises. This blog post will take a look at what actions an attorney may take to get a judge disqualified, what actions by a judge merit disqualification, and the procedure for disqualification.
What can you do to get a judge disqualified?
By no means does this article encourage attorneys to purposefully engage in behavior to disqualify a judge, as attorneys who join litigation aware of an existing conflict cannot expect disqualification. Sume v. State, 773 So. 2d 600, 602 (Fla. 4th D.C.A. 2005). However, attorneys should be aware of certain actions they might take which would potentially disqualify a judge from presiding over their case.
Judges and attorneys are expected to be respectful to one another and friendship alone has not been found to be disqualifying. However, the mere appearance of improper access to a judge may be disqualifying if the judge’s “impartiality might reasonably be questioned.” Fla. Code Jud. Conduct, Canon 3E. The Florida Supreme Court has also issued an opinion letter advising judges against adding attorneys as “friends” on social networking sites as it can create the appearance of impropriety, which is enough to disqualify. Fla. JEAC Op. 09-20 (2009). Personal relationships with judges must always be carefully monitored and ex parte communications not related to “purely administrative, non-substantive matters” can lead to disqualification. Nudel v. Flagstar Bank, FSB, 52 So. 3d 692, 694-95 (Fla. 4th D.C.A. 2010).
The state of Florida elects its county and circuit court judges. Consequently, political donations made by attorneys may lead to a biased judge. Attorneys, however, play a pivotal role in shaping our political landscape thorough campaign contributions and pro-bono work, which is why disqualification as a result of campaign contributions remains rare. Contributions from attorneys in a law firm totaling just over $4,500 was not found to be disqualifying since none of the contributions exceeded the statutorily allowed amount. E.I. DuPont de Nemours & Co. v. Aquamar S.A., 24 So. 3d 585, 585 (Fla. 4th D.C.A. 2009). The campaign contribution would have to be enormously disproportionate and to determine if disqualification is warranted courts will look at: (1) the size of the contribution relative to the total amount contributed to the campaign; (2) the total amount spent on the election; and (3) the effect the contribution had on the election. Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 2255 (2009).
On the other side of being too friendly with a judge, an adverse relationship can be disqualifying as well. A judge’s impartiality is usually in doubt when the judge has a personal opinion about a party or attorney, and they make that opinion public. Which is why a judge may be disqualified for running a hostile reelection campaign against an attorney or even for calling counsel names such as a “substandard Miami lawyer” or “Mr. Dead Beat Man of the Year.” Tower Group, Inc. v. Doral Enterprises Joint Ventures, 760 So. 2d 256, 256 (Fla. 3d D.C.A. 2000); Marshall v. Bookstein, 789 So. 2d 455, 456-57 (Fla. 4th D.C.A. 2001); Roy v. Roy, 687 So. 2d 956, 956 (Fla. 5th D.C.A. 1997).
What must attorneys look out for
In most situations, disqualifying information will be present as soon as the judge is assigned to your case. But there are also situations which occur during trial or even after that could lead to your judge’s disqualification.
As soon as a judge is assigned to your case due diligence is key. Judges have an ethical obligation to disclose information on the record that could be relevant to their disqualification, even if they don’t think it merits disqualification. Fla. Code Jud. Conduct, Canon 3E. However, it is still important to inquire about any possible ties the judge may have with the outcome of the case. And an attorney can seek disqualification if the judge or even a close relative of theirs stands to benefit from the outcome. Corie v. City of Riviera Beach, 954 So. 2d 68, 71 (Fla. 4th D.C.A. 2007).
A judge having legal problems could also lead to grounds for disqualification. Disqualification is appropriate if an attorney in the proceeding has recently represented the judge, or even a significant other such as a girlfriend. Baez v. Koelemij, 960 So. 2d 918, 919 (Fla. 4th D.C.A. 2007). The judge may also not be involved in similar litigation or even have a similar legal issue, as a judge could stand to gain from the outcome or even be biased against a party. Aberdeen Property Owners Ass’n, Inc. v. Bristol Lakes Homeowners Ass’n, Inc., 8 So. 3d 469, 472 (Fla. 4th D.C.A. 2009).
During proceedings or trial, there might be a ruling that does not go your way. An adverse ruling alone however, is not enough to disqualify. Judges are given some discretion during trial, but judges should only ask questions to clarify testimony or in “the interests of justice.” 90.915(2), Fla. Stat. (2016). Judges may ask questions in limited circumstances, but they may not ask questions or make comments providing the “essential elements” of the case. R.O. v. State, 46 So. 3d 124, 126 (Fla. 3d D.C.A. 2010). Questioning by an overly aggressive judge is also enough to disqualify, as a judge and attorney are seen as teaming up and forming a “lawyer dream team.” Stockstill v. Stockstill, 770 So. 2d 191, 191 (Fla. 5th D.C.A. 2000). Judges may have a great deal of discretion but they can be disqualified for various reasons including giving tips to attorneys, commenting on matters not before the court, or commenting before evidence has been presented. Chastine v. Broome, 629 So. 2d 293, 294 (Fla. 4th D.C.A. 1993); Kates v. Seidenman, 881 So. 2d 56, 57-58 (Fla. 4th D.C.A. 2004); Williams v. Balch, 897 So. 2d 498, 498-99 (Fla. 4th D.C.A. 2005). In a nutshell, attorneys must always be aware of actions that merit disqualification, and disqualification may be appropriate in many instances where a judge expresses a personal opinion or are overly involved in litigation.
Procedure for disqualification
The Rules of Judicial Administration set out the procedure for disqualifying judges in county and circuit courts. Fla. R. Jud. Admin. 2.330(a). This procedure governs all disqualification whether it be disqualification by rule or statute.
Rule 2.330 of the Rules of Judicial Administration require a motion to disqualify to be:
- In writing,
- Allege specifically the facts and reason for disqualification, and
- Be sworn to the party by signing the motion under oath or by a separate affidavit.
In addition, the attorney for the party filing the motion must certify that the client’s statements are made in good faith and the party must serve a copy of the motion on the judge pursuant to Florida Rules of Civil Procedure 1.080, a step that is often overlooked.
Once the motion is made either orally or written, it must be ruled on immediately. If a motion to disqualify is made orally, a judge must stop all proceedings and give counsel an opportunity to file the motion. Rodgers v. State, 630 So. 2d 513, 516 (Fla. 1993). The rules state that the motion should be made within 10 days from discovering the grounds for disqualification. However, if the motion is based on the judge’s relationship, a party has 30 days to file the motion. 38.02, Fla. Stat. (2012). This confusing discrepancy, along with other reasons, has led the Florida Senate to issue a report on the possible consolidation of the rules and statutes. S. Rep. No. 2011-128, at 6 (2010).
Attorneys are given the statutory right to seek disqualification when prejudice is feared and this is another area which is in conflict with the Rules of Judicial Administration. 38.10, Fla. Stat. (2012). The pertinent part states, once a party files an affidavit fearing prejudice “the judge shall proceed no further, but another judge shall be designated.” Id. The Rules of Judicial Administration however allow a judge to determine the “legal sufficiency” of the motion. “Legal sufficiency” is not a simple determination of format, but the judge who you are seeking to disqualify, must determine if a reasonable person would fear that they could not get a fair and impartial trial. Peterson v. Asklipious, 833 So. 2d 262, 263-64 (Fla. 4th DCA 2002). One saving grace is that a judge cannot make any factual determinations with the motion to disqualify, all must be taken as true at the time of the ruling, and any commentary on the truthfulness of the motion may be a new basis for disqualification. Dominquez v. State, 944 So. 2d 1052, 1053 (Fla. 4th D.C.A. 2006). In the event that a judge denies your motion to disqualify, prohibition is available for immediate review. Sutton v. State, 975 So. 2d 1073, 1076-77 (Fla. 2008). Prohibition is used as the justification for allowing judges to rule on their own motions to disqualify, as attorneys are given another means to have a judge disqualified.
Disqualification must be complete and a judge cannot partially disqualify or recuse themselves. Once a judge offers recusal or the disqualification order is entered, it is final and unreviewable. And once a party succeeds in having a judge disqualified from their case, all prior factual or legal rulings may be reconsidered by the new judge. It is imperative that these motions be timely, within 20 days of the order of disqualification.
States are reluctant to impose rules on the judiciary, as a result attorneys are left in the position to demand disqualification when necessary and ensure judicial neutrality. Because of the strict rules and the limited time frame given to raise the issue of disqualification, attorneys must practice due diligence and understand all rules and procedures before a potential conflict arises.