Law Offices of Robin Bresky Obtains Disqualification of Trial Judge for Clients Before Attorneys’ Fee Hearing

In Florida, “every litigant is entitled to nothing less than the cold neutrality of an impartial judge.” State v. Parks, 141 Fla. 516, 194 So. 613, 615 (Fla. 1939). If a trial court judge says or does something that appears to indicate bias, prejudice, partiality, or prejudgment against a litigant, that party may have grounds for a reasonable fear that he or she will not receive a fair trial or hearing before that judge. Fortunately, a state statute and a rule of judicial administration allow such litigants to ask the judge to grant disqualification or to recuse himself or herself so that another judge can be assigned to the case.

The Law Offices of Robin Bresky recently filed a motion for disqualification of a circuit court judge in South Florida because the judge made remarks that created an appearance of bias, partiality, and prejudgment of the outcome of the case at a uniform motion calendar hearing when the client was seeking to compel discovery in preparation for an evidentiary hearing on an award of attorneys’ fees in a post-judgment civil matter.

The attorneys at the Law Offices of Robin Bresky analyzed a transcript of the uniform motion calendar hearing and identified certain remarks of the judge that appeared to indicate bias, partiality, or prejudgment of the case before hearing the evidence. For example, the judge asserted that, in pursuing discovery of certain records in preparation for the fee hearing, the client would allegedly incur a large amount of attorneys’ fees “to get nowhere” and would also have a “much less favorable result” at the hearing if they did not obtain discovery of those records. The judge declared, “I don’t think anybody’s going to win once we get to the final hearing.” The judge seemed to view the client as being in a “Catch-22” situation where the result would inevitably be unfavorable to our client.

Appellate courts have held that a judge must not prejudge a case before hearing all of the evidence. E.g., Barnett v. Barnett, 727 So. 2d 311, 312 (Fla. 2d DCA 1999). The Law Offices of Robin Bresky prepared a motion based on section 38.10, Fla. Stat., and Fla. R. Jud. Admin. 2.330(d)(1), showing that the judge’s comments created an appearance of the judge being biased against the client or having preconceived notions of how the fee hearing will turn out, in spite of not yet hearing the evidence.

Upon receiving the verified motion for disqualification, the judge’s duty was to take all facts in the motion as true and then determine whether, based on those facts, the motion was legally sufficient. That is, the judge’s responsibility was to determine whether, based on the facts stated, a reasonable litigant could have a well-grounded fear of judicial bias, prejudice, partiality, or prejudgment. Where, as here, no judge had previously been disqualified in this case, it is not a question of whether the judge is actually biased or how the judge feels; rather, it is a question of how the party feels and the reasonableness of those perceptions. If a judge determines that certain remarks could place a reasonably-prudent person in fear of not receiving a fair and impartial hearing, the judge must grant disqualification. See Clarendon National Ins. Co. v. Shogreen, 990 So. 2d 1231, 1233 (Fla. 3d DCA 2008). (If, however, a judge had previously been disqualified in the case, a different standard would have applied: the “successor judge shall not be disqualified based on a successive motion by the same party unless the successor is in fact not fair or impartial in the case.” Fla. R. Jud. Admin. 2.330(g).).

Judges often deny motions for disqualification, often deeming them to be “not legally sufficient” either because they are filed more than 10 days after the party’s discovery of the facts constituting the grounds for the motion or because the judge does not consider the party’s fear of bias to be reasonable. Here, however, a few days after we submitted the verified motion to the court, the judge granted the motion and issued an Order of Disqualification concluding that the grounds raised in our motion were legally sufficient and stating that the matter will be reassigned by the administrative judge. The Law Offices of Robin Bresky is glad that the client will have an opportunity to pursue the fee hearing before a different judge who will be impartial.

If the circuit judge had declined to grant disqualification, the remedy would have been to file a petition for writ of prohibition in the appellate court, which would review whether the motion actually was legally sufficient. In other words, the appellate court would decide whether the judge’s “comments … were sufficient to evidence to a reasonable person bias requiring disqualification, even if the judge may have felt that he had no bias.” Martinez v. Cramer, 111 So. 3d 206, 207 (Fla. 4th DCA 2013). The Law Offices of Robin Bresky has been pleased to assist several clients in obtaining favorable appellate court decisions on petitions for writ of prohibition, ensuring that the clients would have an opportunity to receive a fair hearing before a neutral trier of fact.