Judicial disqualification: what every practitioner (and judge) should know.

• Jurisdiction: United States
• Author: Glaid, Douglas J.
• Date: 01 October 2000

In the course of representing a client, something may occur or be discovered which will cause an attorney and his or her client to conclude that the client will be unable to receive a fair hearing or trial before the trial judge. Assuming that the judge does not disqualify himself or herself sua sponte, counsel may consider filing a motion to disqualify or recuse the trial judge from further presiding in the action. This article will explain the procedure counsel must follow when filing such a disqualification motion, review the requirements imposed upon trial judges when determining disqualification motions, and examine the case law addressing the legal sufficiency of disqualification motions. Additionally, the procedure and law applicable to disqualification of trial judges in federal cases will be briefly discussed.

Procedure Under Fla. R. Jud. Admin. 2.160

The procedure for filing disqualification motions for civil and criminal cases is set out in rule 2.160 of the Florida Rules of Judicial Administration. Counsel should also be mindful of the fact that a statute relating to judicial disqualification exists, F.S. [sections] 38.10,[1] the requirements of which are consistent with rule 2.160 and should be satisfied by counsel. Additionally, Fla. Code Jud. Conduct Canon 3E(1) sets forth a nonexclusive list of instances in which a judge must disqualify himself or herself from a case in which the judge's "impartiality might reasonably be questioned."

A motion to disqualify must be in writing and "specifically allege the facts and reasons" relied on to show the basis for disqualification. See Fla. R. Jud. Admin. 2.160(c). The motion must be sworn to by the "party" by signing the motion under oath or by a separate affidavit. Id. Counsel for the party seeking disqualification must also separately certify that the motion and his or her client's statements contained therein are made in good faith. Id.

Rule 2.160(d) sets forth the following bases for a disqualification motion, at least one of which must be shown in the motion:

1. that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge;

2. that the judge before whom the case is pending, or some person related to said judge by consanguinity or affinity within the third degree, is a party thereto or is interested in the result thereof;

3. that the judge is related to an attorney or counselor of record in the cause by consanguinity or affinity within the third degree; or

4. that the judge is a material witness for or against one of the parties to the cause.

An important requirement contained in rule 2.160(e) is that a disqualification motion must be made within 10 days after the "discovery of the facts constituting the grounds" for the motion. Additionally, the motion must be "promptly presented" to the trial court for "immediate ruling." Id.

If the facts forming the basis for the disqualification motion are discovered during trial, the motion nevertheless must be in writing in accordance with rule 2.160(c). Such motions made at trial must be determined "immediately." See Fla. R. Jud. Admin. 2.160(e). Regardless of when the motion was made, it has been held that once a judge has signed an order of disqualification, the judge may not reconsider his or her decision and reinstate himself or herself in the proceedings.[2]

The failure to comply with the procedural requirements contained in rule 2.160 justifies the denial of the disqualification motion. For instance, the denial of disqualification motions has been upheld as proper when a party untimely files the motion,[3] when the motion fails to specifically describe any prejudice or bias on the part of the trial judge,[4] when the motion omits the certification of good faith by counsel,[5] and when a party fails to sign a motion to disqualify the judge.[6]

Initial and Successive Disqualification Motions

If an initial disqualification motion alleges a fear of prejudice or bias under rule 2.160(d)(1), the trial judge is required to determine only the "legal sufficiency" of the motion and is prohibited from passing on the truth of the facts averred. See Fla. R. Jud. Admin. 2.160(0. Indeed, the only reason a judge can properly give for denying a disqualification motion other than a procedural deficiency is that the motion is "legally insufficient." Id. In the event a trial judge expresses another reason for denying the motion or "takes issue" with the motion either personally or through counsel, the judge is required to disqualify himself regardless of the insufficiency of the motion.[7] As observed by the Supreme Court in Bundy v. Rudd, 366 So. 2d 440, 442 (Fla. 1978), the purpose of this prohibition is to prevent the creation of an "intolerable adversary atmosphere" between the trial judge and the litigant. Some appellate courts have broadly interpreted the phrase "passing on the truth of the facts" so as to strictly enforce the prohibition against disputing the facts alleged in the motion. For example, in Rowe-Linn v. Berman, 601 So. 2d 618 (Fla. 4th DCA 1992), the Fourth District held that since it "feared" that the trial judge "stepped over the line" by attempting to justify the denial of a disqualification motion on grounds other than legal sufficiency, disqualification was required.[8] This was so even though the appellate court felt that the disqualification motion was legally insufficient. Id. at 619. On the other hand, it has been held that if the trial judge merely explains the status of the record when determining the disqualification motion, the judge has not contested the allegations contained in the motion and disqualification is not required.[9] Similarly, when a judge did not deny making the remarks which formed the basis for a recusal motion, but rather merely stated that he was quoted out of context, the appellate court upheld the judge's denial of the motion.[10]

Section (g) of rule 2.160 deals with the filing of successive disqualification motions so as to prevent the possibility of an abuse of the disqualification rule, such as "judge-shopping." The rule provides that if an initial judge has been disqualifled on the ground of alleged prejudice or partiality, the successor judge cannot be disqualified 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." Unlike the first judge, the successor judge is permitted to pass on the truth of the facts alleged in support of the successive motion. Additionally, under rule 2.160(h) a successor judge may reconsider, vacate, or amend any prior legal or factual rulings of a disqualified judge. This is accomplished by the filing of a motion for reconsideration within 20 days of the order of disqualification. Id. The 20-day period for filing a motion for reconsideration may be extended upon a showing of good cause for a delay in moving for reconsideration or where other grounds for reconsideration exist. Id.

What Are "Legally Sufficient" Motions?

Even assuming that a disqualification motion meets the procedural requirements set forth in Fla. R. Jud. Admin. 2.160 and F.S. [sections] 38.10, it nevertheless must be denied if not "legally sufficient."[11] Conversely, if the motion is legally sufficient, it must be granted immediately.[12] The test for determining the legal sufficiency of a motion for disqualification is an objective one which asks whether the facts alleged in the motion would place a reasonably prudent person in fear of not receiving a fair and impartial trial.[13] The disqualification motion must contain an "actual factual foundation" for the alleged fear of prejudice.[14] Although the term "legally sufficient" is fluid in nature, a review of the case law considering the legal sufficiency of disqualification motions reveals certain recurring principles that counsel should keep in mind when drafting a motion to disqualify a trial judge.

A party's complaint about the trial court's rulings as a basis for disqualification has consistently been held to be insufficient to require the judge's recusal.[15] In this regard it is established that a judge may not be disqualified for judicial bias, but rather only for personal bias against a party or his or her case.[16] Thus, for example, disqualification has been held to be inappropriate when its basis has been the trial judge's recession of previously entered orders granting the moving party assistance and the denial of interim attorneys' fees to the party.[17] Additionally, a trial judge's innocuous inquiry during voir dire concerning a prospective juror's availability to serve on the venire was held not to demonstrate prejudice warranting recusal.[18] In another case, a judge's statement at a bond reduction hearing that he did not care whether the defendant got out of jail or not was held to be legally insufficient to show that the judge was prejudiced, either against the defendant or in favor of the state.[19] On the other hand, cases reflecting a personal bias mandating disqualification have included situations when the trial judge provided a cross-examination tip to the prosecutor;[20] when the trial judge made comments that he would be uncomfortable making credibility determinations regarding certain members of one party's family, even though it did not appear that the outcome of the proceedings rested upon the credibility of any of the persons involved;[21] when one of the parties or his or her counsel had dealings with a relative of the court;[22] or when a judge told others that he would kill the defendant if the defendant had done to the judge's daughter what he had done to the victim.[23] In short, it appears that either a trial judge's demonstration of ill will or, conversely, favoritism toward one of the parties to an action is needed to disqualify the judge.

A related principle mitigating against disqualification is that a...