MICHAEL DOUGLAS MCGIBENY, PETITIONER,
v.
HON. C. MCFERRIN SMITH, III, CIRCUIT JUDGE, SEVENTH JUDICIAL CIRCUIT, VOLUSIA COUNTY, FLORIDA, RESPONDENT
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The Florida Court of Appeal issued a writ of prohibition against a circuit judge who repeatedly denied motions to disqualify himself despite the court finding the disqualification allegations legally sufficient in substance. The decision addresses a judge's duty to avoid the appearance of impropriety and recognizes a pattern of questionable rulings regarding alleged favoritism toward opposing counsel.
The writ of prohibition is issued, and the judge is prohibited from acting in the case below or any other litigation concerning the petitioner. The order denying the disqualification motion was error, and the judge's response invoking lack of authority to enter general disqualification was not a factually material response to the petition.
[1] A writ of prohibition is appropriate when a judge denies a motion to disqualify himself, and the allegations in the motion are legally sufficient.
[2] A judge's duty includes avoiding the appearance of impropriety and ensuring litigants feel no outside influences or biases affect judicial decisions.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The allegations of the petition before this court are legally sufficient, as were, those in the Motion for Disqualification of Judge filed below. The order denying the disqualification was error.”
Establishes that the court found the disqualification allegations legally sufficient and the judge's order denying disqualification was erroneous.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMcGibeny filed a motion to disqualify Judge Smith, alleging a relationship and favoritism regarding attorney Garret L. Briggs. This was the second pet…
The full statement of facts, procedural history, and disposition for this case are member content.
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DAUKSCH, Judge.
This matter is before the court upon a petition for writ of prohibition.
The allegations of the petition are the same as those which this court found sub stantially sufficient, but procedurally deficient, in McGibeny v. Smith, 511 So. 2d 1083 (Fla. 5th DCA 1987).
The allegations of the petition before this court are legally sufficient, as were, those in the Motion for Disqualification of Judge filed below. The order denying the disqualification was error. In his responses to this court’s Rule to Show Cause the respondent, both on the previous occasion and this one, relies upon Livingston v. State, 441 So. 2d 1083 (Fla.1983). Respondent urges that this court cannot enter an order of general disqualification against him. He says implicitly he must be prohibited in each case on its own petition whenever a litigant raises his alleged relationship and favoritism regarding attorney Garret L. Briggs. We are willing to consider each petition as it is filed even though a preferable result could be obtained if the respondent would look at the matter more objectively. This case, like Leigh v. Smith, 503 So. 2d 989 (Fla. 5th DCA 1987) makes it apparent that it will never be very difficult for a litigant to obtain a writ of prohibition when Judge Smith denies a motion to disqualify himself from a case where Mr. Briggs is opposing counsel.
We do not deem it necessary to write a treatise on a judge’s duty to avoid the appearance of impropriety. Nor do we need to explain why it is best for all litigants to feel no outside influences or other biases affect judges’ decisions. We know Judge Smith knows that. What we cannot understand, though, is why in the face of a motion to disqualify which was the same as the one this court had already found legally sufficient in its substance, he ruled to the contrary. He must have known this court would stand by its decision. The immaterial response that this court is without authority to enter a general disqualification, in face of a petition which did not seek a general disqualification, in face of a petition which did not seek a general disqualification, and which only concerned this petitioner, gives this court the impression that, in fact, no factually material response is available. If that is the case in the future, as was here and probably in Leigh, then perhaps respondent might reconsider his confrontational stance.
The writ of prohibition is issued and respondent is prohibited from acting in the case below or any other litigation concerning the petitioner. WRIT ISSUED.
SHARP, C.J., concurs.
COWART, J., concurs in result only.
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Dura-Stress, Inc. v. Honorable William G. LAW, Jr., 634 So. 2d 769 (Fla. 5th DCA 1994)…he motion for net final judgment. Finally, I would grant the petition and issue the writ as to all cases involving Dura-Stress. Once these cases have been returned to the trial court, the trial judge and the parties should review McGibeny v. Smith, 524 So. 2d 713 (Fla. 5th DCA 1988), and Michaud-Berger, 607 So. 2d 441, to determine if it would be in the best interest of the parties for the trial judge to remain on the two cases that were not the subject of petitioner’s writ of prohibition. . The three remai…
Authorities Cited
- Livingston v. State, 441 So. 2d 1083 (Fla. 1983)
- Leigh v. Smith, 503 So. 2d 989 (Fla. 5th DCA 1987)
- McGIBNEY v. The Honorable C. McFerrin Smith, 511 So. 2d 1083 (Fla. 5th DCA 1987)