September 15, 2014

Motions for Recusal: Effective Tool for Litigants Faced With Judges They Perceive as Biased

Motions for Recusal: Effective Tool for Litigants Faced With Judges They Perceive as Biased

In addition to handling appeals, Bresky Law frequently provides litigation support to attorneys and sometimes to pro se litigants (individuals who represent themselves without an attorney appearing on their behalf). Our firm recently assisted a pro se litigant in successfully obtaining the recusal of a trial court judge in a civil case.

The pro se litigant felt that the judge assigned to the case was biased against him after a hearing at which the judge refused to hear his evidence and threatened to throw him in jail. Our firm assisted the pro se litigant in filing a motion to disqualify and recuse the judge. The judge granted the motion, and another judge was assigned to the case.

The requirements for a motion for recusal or disqualification motion are fairly well-established. The party seeking recusal or disqualification must file a motion explaining that the party fears that it “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.” § 38.10, Fla. Stat. (2014). The motion’s allegations must be sworn, which requires an affidavit or that the motion be verified. The judge must review an initial recusal or disqualification motion only for its legal sufficiency, and may not pass on the truth of the facts. If the motion to disqualify is legally sufficient, the judge must immediately grant it and take no further action in the matter. Fla. R. Jud. Admin. 2.330(f). In general, a trial judge who enters an order of disqualification or recusal is prohibited from further participation in the case, and any subsequent orders by that judge are void. Lake v. Lake, 14 So. 3d 284 (Fla. 3d DCA 2009).

One aspect of motions for recusal and disqualification that makes them effective tools is the difficulty of obtaining appellate review of an order granting such a motion. If the trial judge denies the motion, appellate review is properly available by way of a petition for writ of prohibition. State v. Cam Voong Leng, 987 So. 2d 236, 237 (Fla. 4th DCA 2008). However, a trial judge’s grant of a recusal or disqualification motion leaves the non-moving party with little recourse. The appropriate remedy would be a petition for writ of mandamus, but Florida courts have held that mandamus is unavailable if a party can readily obtain a hearing before another qualified judge without undue prejudice, even if the reasons set forth by the moving party in the motion to disqualify were inadequate. Palmer v. Atkinson, 156 So. 2d 726 (Fla. 1934); Micale v. Polen, 487 So. 2d 1126 (Fla. 4th DCA 1986); Greenstone, Inc. v. D&L, L.L.C., 931 So. 2d 221 (Fla. 1st DCA 2006).