Question: I am being sued and just came from court. The judge seemed to be a real good friend of the person suing me and I am worried. Can I get a different judge?
Answer: Chapter 38 of Florida Statutes includes provisions for disqualification of judges. A judge is disqualified in any case in which he is a party. A judge must also disqualify himself if a party files a suggestion of disqualification within thirty (30) days after the party filing the suggestion learns of the following facts:
1. A person related to the judge is a party in the case or is interested in the result.
2. The judge is related to an attorney in the case within the third degree or ...
3. The judge is a material witness for or against one of the parties.
None of the above grounds seem to fit your situation.
Your concerns appear to fall under Section 38.10, Florida Statutes, which address disqualification of a judge for prejudice. If a party believes the judge is prejudiced, the party must file an affidavit with the court stating the facts and reasons for the belief along with a certificate of the party’s attorney of record that such affidavit and application for disqualification are made in good faith.
Rule 2.330 of the Florida Rules of Judicial Administration sets forth the procedure for disqualification motions. The motion can only be filed by a party in the lawsuit. The motion must be written. The motion must be made within 10 days of the date the moving party discovered the grounds for disqualification. The judge against whom the motion is filed is not to conduct a factual hearing or determine if the allegations are true. The judge only determines if the claims in the motion are legally sufficient. If legally sufficient, without regard to whether they are true or false, the judge must immediately enter an order granting disqualification and take no further action in the case.
If the motion is against a successor judge in the case because of disqualifying the first judge, more is required. The successor judge must determine if the allegations are true. Only if they are true must a successor Judge grant a motion for disqualification.
Concern for prejudice may not exist at the beginning of the case. Prejudice may be based on the judge’s actions in the case, such as, comments or gestures by the judge. It can also be based on improper contact by a judge with one party. Judges are prohibited from ex parte communication, which means communicating with less than of all of the parties in a case. If a judge does engage in ex parte communication, it is an automatic disqualification.
Prejudice need not be limited to a party. Prejudice against a party’s attorney is a ground for disqualification if the prejudice is significant. Prejudice against an attorney is usually known before the case begins, as when the attorney and the Judge were opponents in a hotly contested election. But, it can arise for the first time in a trial.
A motion to disqualify cannot be based on a “feeling” or “belief.” It must be based on facts. A judge consistently entering rulings against one party is not subject to disqualification because that party is unhappy with the rulings in the case. Similarly, an attorneys lack of success with a particular judge court is not a ground for disqualification.
If the motion does not name any of the automatic disqualifying facts, the Judge is not required to grant the motion unless the motion set forth facts that establish a reasonable person would fear ability to get a fair trial with that judge. The initial Judge is automatically disqualified if he disputes the allegations rather than merely ruling on the legal sufficiency of the motion. Florida courts view such dispute as exceeding the rules and conclusive evidence of prejudice.
The time limit for filing a motion to disqualify is not flexible. But, if proper facts are alleged, disqualification is automatic. Discuss your concern with his or her attorney immediately. The attorney can draft the motion and be sure it is timely filed.
William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.
Questions for this column can be sent to: William G. Morris, e-mail: firstname.lastname@example.org or by fax, (239) 642-0722.
Other articles of interest can be viewed at our website, www.wgmorrislaw.com.