F. GARY GIESEKE, PETITIONER,
v.
THE HONORABLE ESTELLA MAY MORIARTY, JUDGE OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA, RESPONDENT
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Petitioner sought a writ of prohibition to disqualify a trial judge from presiding in a divorce proceeding, alleging the judge demonstrated hostility and made unfair rulings. The court granted the prohibition based on the judge's improper response to the recusal petition, holding that by attempting to refute the charges of partiality rather than remaining neutral, the judge disqualified herself.
The court held that when a judge undertakes to controvert charges of partiality by attempting to refute them, the judge exceeds the proper scope of inquiry and establishes grounds for disqualification. The judge's adversarial posture in defending against the recusal allegations itself constituted grounds for disqualification.
[1] A judge who attempts to refute charges of partiality, rather than merely assessing the legal sufficiency of a suggestion of prejudice, exceeds the proper scope of inquiry…
[2] When a judge assumes the posture of an adversary by controverting allegations of bias, the judge disqualifies herself from further proceedings.
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Join FLexlaw to unlock all legal intelligence“[w]hen a judge has looked beyond the mere legal sufficiency of a suggestion of prejudice and attempted to refute the charges of partiality, he has then exceeded the proper scope of his inquiry and on that basis alone established grounds for his disqualification.”
Establishes the controlling legal standard that a judge's attempt to refute recusal allegations constitutes disqualification
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Join FLexlaw to unlock all legal intelligenceF. Gary Gieseke filed a petition for writ of prohibition against Judge Estella May Moriarty in a pending divorce case. Gieseke alleged that the judge …
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PER CURIAM.
Petitioner seeks a writ of prohibition precluding respondent from presiding in further pending proceedings in: In Re: The Marriage of F. Gary Gieseke, Petitioner v. Haydee Gieseke, Respondent. Seventeenth Judicial Circuit Case No. 78-15622 CU. He alleges that respondent is unwilling to accord him the impartial determination to which he is entitled. Among the asserted grounds for recusal are alleged demonstrations by respondent of hostility toward petitioner’s counsel and toward petitioner as well as allegedly unfair adverse legal rulings.
We do not reach the merits of the petition itself in disposing of this matter because in filing her own response to the rule to show cause why relief should not be granted, the trial court undertook to controvert each of the asserted grounds for recusal. In Management Corporation of America v. Grossman, 396 So. 2d 1169 (Fla. 3d DCA 1981), the court cited Bundy v. Rudd, 366 So. 2d 440, 442 (Fla.1978) for the proposition that “[w]hen a judge has looked beyond the mere legal sufficiency of a suggestion of prejudice and attempted to refute the charges of partiality, he has then exceeded the proper scope of his inquiry and on that basis alone established grounds for his disqualification.” Bundy and Management Corp. compel us to hold that respondent has assumed the posture of an adversary and has disqualified herself from conducting further proceedings.
We therefore grant the petition for writ of prohibition, confident that it is unnecessary for us to issue the writ, and remand the cause for further proceedings consistent with this opinion.
Prohibition granted.
BASKIN, NATALIE; PEARSON, DANIEL S.; and FERGUSON, WILKIE D., Associate Judges, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (15 total)
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Ellis v. The Honorable Patti Englander Henning, 678 So. 2d 825 (Fla. 4th DCA 1996)…stant attorney general in each of the consolidated cases, impermissibly took issue with the accuracy of plaintiffs’ allegations. See Fabber v. Wessel, 604 So. 2d 533 (Fla. 4th DCA 1992), review denied, 617 So. 2d 322 (Fla.1993); Gieseke v. Moriarty, 471 So. 2d 80 (Fla. 4th DCA 1985). While the responses do not directly controvert the allegations, they do so indirectly by embracing the factual allegations contained in Strax’s response. The responses unmistakably convey the impression that plaintiffs’ allegati…
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Rollins v. Hon. Joseph P. Baker, 683 So. 2d 1138 (Fla. 5th DCA 1996)…an adversary. This alone is a basis for disqualification. Bundy v. Rudd, 366 So. 2d 440 (Fla.1978); Mac-Kenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla.1990); Ellis v. Henning, 678 So. 2d 825 (Fla. 4th DCA 1996); Gieseke v. Moriarty, 471 So. 2d 80 (Fla. 4th DCA 1985). Judgés are often confronted with the dilemma of whether or not to respond to a show cause order in these types of eases. Perhaps the best course of action is to request the attorney general’s office to file a response on behalf…
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Hill v. The Honorable Richard Y. Feder, 564 So. 2d 609 (Fla. 3d DCA 1990)…ace him in the same adversarial position the court condemned in Management Corp. of America, Inc. v. Grossman, 396 So. 2d 1169 (Fla. 3d DCA 1981); see also MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla.1990); Gieseke v. Moriarty, 471 So. 2d 80 (Fla. 4th DCA 1985). In Management Corp., the appellate court held that by attempting to refute charges of partiality, the judge establishes grounds for disqualification. In Bundy v. Rudd, 366 So. 2d 440 (Fla.1978), the court stated: Our disqualifi…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- THE Florida BAR v. Sanford Freed, 366 So. 2d 440 (Fla. 1978)
- Mgmt. Corp. OF Am., Inc. v. Hon. Rhea Pincus Grossman, 396 So. 2d 1169 (Fla. 3d DCA 1981)