HELEN FRUEHE, PETITIONER,
v.
HONORABLE JAMES M. REASBECK, JUDGE OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA, RESPONDENT
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A judge who rules on the truth of allegations in a motion for disqualification, rather than just its legal sufficiency, must be disqualified.
Petitioner sought a writ of prohibition to disqualify the respondent judge. The judge denied the motion to disqualify, attempting to justify the denia…
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PER CURIAM.
Petitioner seeks a writ of prohibition to prohibit respondent from presiding in further proceedings in the case of Helen Fruehe, Petitioner, v. Charlene Georgia Fruehe, Respondent, Case No. 78-1935 CP, in the Seventeenth Judicial Circuit in Bro-ward County, Florida.
We grant petitioner’s petition for writ of prohibition on the authority of Bundy v. Rudd, 366 So. 2d 440 (Fla.1978) and Gieseke v. Moriarty, 471 So. 2d 80, 81 (Fla. 4th DCA 1985). In Bundy, the supreme court stated:
Regardless of whether respondent ruled correctly in denying the motion for disqualification as legally insufficient, our rules clearly provide, and we have repeatedly held, that a judge who is presented with a motion for his disqualification “shall not pass on the truth of the facts alleged nor adjudicate the question of disqualification.” [Citations omitted], When a judge has looked beyond the mere legal sufficiency of a sugges tion 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. Our disqualification rule, which limits the trial judge to a bare determination of legal sufficiency, was expressly designed to prevent what occurred in this case — the creation of “an intolerable adversary atmosphere” between the trial judge and the litigant.
366 So. 2d at 442.
The record of the hearing on petitioner’s motion to disqualify clearly establishes that respondent failed to limit his inquiry to a determination of the sufficiency of the motion to disqualify. Respondent’s attempt to justify denial of the motion for reasons other than the legal sufficiency of the motion and supporting affidavit requires his disqualification.
Accordingly, we grant petitioner’s petition for writ of prohibition.
PROHIBITION GRANTED.
HERSEY, C.J., and LETTS and DELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Thomas N. Ryon, M.D. v. Honorable James M. Reasbeck, 525 So. 2d 1024 (Fla. 4th DCA 1988)…he sufficiency of the motion to disqualify. Therefore we grant petitioners’ petition for writ of prohibition on the authority of Bundy v. Rudd, 366 So. 2d 440 (Fla.1978); Gieseke v. Moriarty, 471 So. 2d 80 (Fla. 4th DCA 1985) and Fruehe v. Reasbeck, 525 So. 2d 471 (Fla. 4th DCA 1988). PROHIBITION GRANTED. DOWNEY, DELL and GUNTHER, JJ., concur.…
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Rowe-Linn v. The Honorable Howard C. Berman, 601 So. 2d 618 (Fla. 4th DCA 1992)…r the line in the order of denial by failing to “limit his inquiry to a determination of the sufficiency of the motion to disqualify,” and attempting “to justify denial of the motion for reasons other than ... legal sufficiency.” Fruehe v. Reasbeck, 525 So. 2d 471, 472 (Fla. 4th DCA 1988). See also cases cited therein. GLICKSTEIN, C.J., and GUNTHER, J., concur. WARNER, J., dissents without opinion.…
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Earnest Digeronimo, Jr., M.D. v. Honorable James M. Reasbeck, 528 So. 2d 556 (Fla. 4th DCA 1988)…writ of prohibition on the authority of Bundy v. Rudd, 366 So. 2d 440 (Fla.1978), Gieseke v. Moriarty, 471 So. 2d 80 (Fla. 4th DCA 1985), and the most recent decisions in Ryon v. Reasbeck, 525 So. 2d 1024 (Fla. 4th DCA 1988), and Fruehe v. Reasbeck, 525 So. 2d 471 (Fla. 4th DCA 1988). PROHIBITION GRANTED. HERSEY, C.J., and DOWNEY and GUNTHER, JJ., concur.…
Previewing 3 of 5 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)
- C.J. v. State, 471 So. 2d 80 (Fla. 3d DCA 1985)
- Gieseke v. The Honorable Estella May Moriarty, 471 So. 2d 80 (Fla. 4th DCA 1985)