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Ely
Ely, Counselor at Law
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(Issue- Disqualification/ prohibition of a judge) Is there

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(Issue- Disqualification/ prohibition of a judge) Is there any case law or authority in Florida that supports that the following circumstance would give a litigant a well grounded fear the judge is partial to the adverse parties?

The litigant filed for disqualification of a trial judge after the judge disclosed his personal dinner with an opposing witness. At the judge's denial of disqualification, the litigant petitioned the district court for prohibition. The district court issued an order to show cause why prohibition should not be granted and ordered a stay of proceedings in the trial court. However, during that stay, the trial judge held a proceeding at the request of the adverse parties and granted their request regarding discovery documents. (the prohibition regarding the judge's dinner was eventually denied by the district court.) If the litigant recently found that the trial judge had granted the adverse parties that discovery request during the stay (litigant was not present at the short proceeding), is that sound basis for the litigant to have a well-grounded fear the judge is partial to the adverse parties--because the judge was willing to violate the higher court's order of a stay to rule on and grant a request from the adverse parties?

Any case law or judicial ethics rules that would support that causing a well-grounded fear of partiality?
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation.

Case precedent for judge disqualification is generic on purpose. The statutory authority and case law are careful to be broad, so as to allow other courts to apply the law to any nuanced situation.

Under Rule 2.160(d), at least one of the following must be shown:

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.

Now, you ask about case law. There is no case law that specifically addresses a Judge overruling a superior court's decision in a biased favor. However, this arguably qualifies, since the Court said in MacKenzie v. Super Kids Bargain Store, 565 So.2d 1332 (Fla.1990), that "the standard for determining whether a motion is legally sufficient is "whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair trial." Id. at 1335.

Here, it is arguable that they would not... so this may qualify. But you are unlikely to find a case law nuanced just for this situation because as stated above, it is meant to be general.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

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Customer: replied 1 year ago.

Sorry it took me so long to reply. I have had a lot going on. Please clarify what you meant with this statement: "Here, it is arguable that they would not....so this may qualify." Are you saying its arguable that a person "would not" receive a fair trial or that they would not have a reasonable fear?


 


 

Expert:  Ely replied 1 year ago.
Hello friend,

My apologies for the wait and thank you for your follow up.

Please clarify what you meant with this statement: "Here, it is arguable that they would not....so this may qualify." Are you saying its arguable that a person "would not" receive a fair trial or that they would not have a reasonable fear?

What I meant was that the person would not receive a fair trial, has reason to fear as such, and may file to try to disqualify, although it is unlikely that he can find specific case law to mirror this matter 100%, and simply would have to utilize Rule 2.160(d) generally without any case law.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 86552
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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