Motions to Disqualify Trial Judges in Florida

This article discusses the procedure for seeking the disqualification of a trial judge in Florida state court actions.

“It has long been said in the courts of this state that ‘every litigant is entitled to nothing less than the cold neutrality of an impartial judge.’” JJN FLB, LLC v. CFLB P’ship, LLC, 283 So. 3d 922, 925 (Fla. 3d DCA 2019) (quotation omitted). “Due process requires that a judge possess neither actual nor [perceived] bias.” Id. (quotation omitted) (alternation in original).

A motion to disqualify must show 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 or that the judge has a bias regarding disputed evidentiary facts concerning the proceeding. Fla. R. Jud. Admin. 2.330(e)(1); (e)(4). The statutory basis for judicial disqualification provides:

Whenever a party to any action … makes and files an affidavit stating fear that he or she will not receive a fair trial … on account of the prejudice of the judge of that court against the applicant or in favor of the adverse party, the judge shall proceed no further ….

Fla. Stat. § 38.10.

The standard is the reasonable effect on the party, not the subjective intent of the judge. See Brofman v. Florida Hearing Care Ctr., 703 So. 2d 1191, 1192 (Fla. 4th DCA 1997). The motion must be filed within twenty days of discovery of the facts constituting grounds for disqualification. Fla. R. Jud. Admin. 2.330(g). On filing a motion to disqualify, the role of the judge is limited to determining whether the motion is legally sufficient on its face. Fla. R. Jud. Admin. 2.330(h).

“The term ‘legal sufficiency’ encompasses more than mere technical compliance with the rule and the statute; the court must also determine if the facts alleged (which must be taken as true) would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial.” Hayslip v. Douglas, 400 So. 2d 553, 556 (Fla. 4th DCA 1981). The facts alleged in the motion must be taken as true. See, e.g., Gieseke v. Grossman, 418 So. 2d 1055, 1057 (Fla. 4th DCA 1982).

Indeed, the judge has no authority to pass on the truth of the facts alleged in the motion or to make any other decision concerning its merits. See generally, Brown v. St. George Island, Ltd., 561 So. 2d 253, 255 (Fla. 1990). If the judge looks beyond the mere legal sufficiency of the motion and attempts to refute the charges of partiality, the court has exceeded the proper scope of its inquiry and, that basis alone, would establish grounds for disqualification. See, e.g., Bundy v. Rudd, 366 So. 2d 440, 442 (Fla. 1978). In short, if the motion to disqualify is legally sufficient, the judge must simply grant it and proceed no further in the action. See Fla. R. Jud. Admin. 2.330(h).

If the judge denies the motion to disqualify, the aggrieved party can appeal that decision by seeking a writ of prohibition from an appellate court. “[A] writ of prohibition is the proper procedure for appellate review to test the validity of a motion to disqualify.” JJN FLB, LLC v. CFLB P’ship, LLC, 283 So. 3d 922, 925 (Fla. 3d DCA 2019) (quotation omitted). “We review ‘a trial judge’s determination on a motion to disqualify … de novo.’” Id. (quotation omitted).

“The standard for viewing the legal sufficiency of a motion to disqualify is whether the facts alleged, which must be assumed to be true, would cause the movant to have a well-founded fear that he or she will not receive a fair trial at the hands of that judge.” JJN FLB, LLC, 283 So. 3d at 925 (quoting Wall v. State, 238 So. 3d 127, 143 (Fla. 2018)).