During any lawsuit, something occurs that causes nearly every attorney and his or her client to question the fairness and functionality of the system. This is to be expected, digested, and then overcome with professionalism, patience, and good lawyering. However, in rare circumstances, an attorney or client insists that their trial judge cannot provide a fair hearing due to insurmountable prejudice or bias. The attorney files a motion to disqualify or recuse the judge, and you are called into action to defend the Court. This article discusses the improper grounds to disqualify a judge for bias or prejudice, to provide the Court with ammunition to deny the motion and stay on the case. If you have questions about disqualification or recusal, please contact Bernhard Law Firm at www.bernhardlawfirm.com, abernhard@bernhardlawfirm.com, 786-871-3349.

A party seeking their judge’s disqualification or recusal must file a sworn motion specifically alleging the facts and reasons showing the basis for disqualification, and certify that the motion is in good faith. See Fla. R. Jud. Admin. 2.160. Proper grounds to disqualify include an objective fear that a party will not receive a fair trial because of a specific prejudice or bias, the judge is related to an opposing party or attorney or has a personal interest in the result, or the judge is a material witness to the facts underlying the case. Id. However, a proper motion to disqualify must also be “legally sufficient.”

A motion to disqualify is legally insufficient where it fails to establish a well-grounded fear that the movant will not receive a fair hearing; a mere subjective fear of bias is not legally sufficient, as the fear must be objectively reasonable. Arbalaez v. State, 898 So. 2d 25, 41 (Fla. 2005) (aff’ing denial of motion to disqualify even though judge made comments that “certainly evinced a predisposition regarding the outcome of [Defendant‘s] case”); Fischer v. Knuck, 497 So. 2d 240, 242 (Fla. 1986) (aff’ing denial of disqualification even though judge refused to admit testimony or look at movant or her attorney); Keitel v. Agostino, 162 So. 3d 88, 90 (Fla. 4th DCA 2014) (aff’ing denial of motion to disqualify on rumors or gossip).

If the motion is based on statements made by a judge during a motions hearing, those statements must be taken in context. See City of Miami v. Village of Key Biscayne, 2016WL3414378 at *1 (Fla. 3d DCA 2016) (holding judge’s statements “taken in context” did not create in reasonably prudent person a well-grounded fear of impartiality) (aff’ing denial of motion to disqualify where judge’s statements “taken in context” did not create in a reasonably prudent person a well-grounded fear of not receiving a fair and impartial trial.”); Pilkington v. Pilkington, 182 So. 3d 776, 779 (Fla. 5th DCA 2015) (holding judge’s comments during hearing, including that “the chronology doesn’t make it look real good for [defendant],” did not create objectively reasonable basis to fear judge was biased, where judge provided qualifiers that he could not “jump to that conclusion” and that “looks can be deceiving.”); see also Mansfield v. State, 911 So. 2d 1160, 1167–70 (Fla. 2005) (aff’ing denial of disqualification at penalty phase despite judge’s numerous comments on the negative impact on victims, “minor issues” in the prosecution’s case, race and the death penalty, “an outstanding State Attorney’s Office,” and that he found troubling any offer for a lesser sentence); Arbelaez, 898 So. 2d at 41 (Fla. 2005) (aff’ing denial of disqualification even though judge’s comment “that if found competent to proceed, the Defendant would be getting a jolt of electricity, [] certainly evinced a predisposition regarding the outcome of [Defendant’s] case”).

A judge’s unflattering remarks reflecting his observations or mental impressions are not legally sufficient to require disqualification. Pilkington, 182 So. 3d at 779. For example, the following statements are legally insufficient to sustain disqualification:

Trial Judge: “I’ll concede that the chronology doesn’t make it look real good for [defendant], because, you know, I mean, he goes through all this other litigation and when that doesn’t work, all of a sudden here comes the guardianship, but I can’t make that—jump to that conclusion, because of the timing, that he was doing it in retribution . . . I agree with you, it doesn’t look good, but looks can be deceiving . . . I understand, but I think I entered the order of removal, notwithstanding his attempt to play catch-up, he had violated the trust code and violated his fiduciary duty and he admitted it.”

Id. (holding “The judge’s comments cited in the motion do not create an objectively reasonable basis to fear Judge Smith was biased.”).

Similarly, subjective inferences that the trial judge has based his ruling on a previously fixed opinion of the case are not sufficient to sustain disqualification. See, e.g., Jackson v. State, 599 So. 2d 103, 107 (Fla. 1992) (aff’ing denial of motion to disqualify as legally insufficient, even though judge had heard the case five times, convicted two co-defendants, made previous adverse rulings, previously heard the evidence and ruled against it, appeared to have formed a fixed opinion of the movant’s guilt and discussed his opinion with others, and made comments that “seem to infer a predisposition by the judge as to the facts”); Moser v. Coleman, 460 So. 2d 385, 386 (Fla. 5th DCA 1984) (holding fact that judge heard some of the evidence and expressed an attitude regarding the guilt of defendant at a preliminary hearing was not a ground for disqualification).

The basis of disqualification must be actual, not presumptive, and cannot stem merely from the judge’s making an adverse ruling or by ruling on sensitive issues. Gilliam v. State, 582 So. 2d 610, 611 (Fla. 1991) (aff’ing denial of disqualification and holding merely receiving adverse rulings is not a ground for recusal); Enter. Leasing Co. v. Jones, 750 So. 2d 114, 115 (Fla. 5th DCA 1999) (denying disqualification where, taken to its logical extreme, movant’s argument would require disqualification every time judge made rulings on movant’s criminal history, personal habits, religious beliefs, or sexual preferences); Davis v. Bat Mgmt. Found., Inc., 723 So. 2d 349, 350 (Fla. 5th DCA 1998) (aff’ing denial of motion to disqualify and holding movant’s citations to denial orders were legally insufficient); Solana v. Solana, 706 So. 2d 414, 415 (Fla. 5th DCA 1998) (aff’ing denial of motion to disqualify and holding allegations of prior adverse rulings by trial judge did not constitute a sufficient basis to disqualify).

Thus, it is improper for a party seeking disqualification to cherry pick statements from an adverse ruling by the judge, where those statements in context do not support any objectively reasonable fear of bias, requiring denial. City of Miami v. Village of Key Biscayne, 2016WL3414378 at *1 (Fla. 3d DCA 2016) (holding judge’s statements “taken in context” did not create in reasonably prudent person a well-grounded fear of impartiality); Pilkington v. Pilkington, 182 So. 3d 776, 779 (Fla. 5th DCA 2015) (holding judge’s comments that “the chronology doesn’t make it look real good for [defendant],” did not create objectively reasonable basis to fear bias, where judge provided qualifiers that he could not “jump to that conclusion” and that “looks can be deceiving.”); see also Arbalaez v. State, 898 So. 2d 25, 41 (Fla. 2005) (denying disqualification even though judge’s comments “certainly evinced a predisposition regarding the outcome of [Defendant‘s] case”); Jackson, 599 So. 2d at 107 (holding allegations that judge previously heard the evidence, made adverse rulings, had formed a fixed opinion of defendant’s guilt, and discussed this opinion with others, was legally insufficient to mandate disqualification.).

If a complete review of the record statements and their context shows the judge has been objectively fair and impartial to all parties, then the motion should be construed as an attempt to forum shop after an adverse ruling, which the Court should reject. If you have questions about disqualification or recusal, please contact Bernhard Law Firm at www.bernhardlawfirm.com, abernhard@bernhardlawfirm.com, 786-871-3349.