RICHARD DEMETRO AND JUDY WILLIAMS DEMETRO, HIS WIFE, PETITIONERS,
v.
THE HONORABLE FREDERICK N. BARAD, JUDGE OF THE ELEVENTH JUDICIAL CIRCUIT COURT IN AND FOR DADE COUNTY, FLORIDA, RESPONDENT
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The DeMetros sought disqualification of a judge assigned to hear their adoption petition because that judge had previously made statements impugning their integrity and character in a separate habeas corpus proceeding. The court granted their writ of prohibition, holding that the judge's prior accusations that they lied and characterizations of the mother's conduct as immoral created an appearance of bias requiring disqualification.
Disqualification was required. Under Florida law, a judge's statement that a party has lied indicates bias, and where a judge has denounced a party's character and believability in a prior proceeding, disqualification is appropriate because there is a clear implication the judge will not believe that party's testimony in future proceedings and has already formed a hostile opinion.
[1] A judge's statement that a party has lied in a prior proceeding generally indicates bias against that party.
[2] A judge's disparagement of a party's character and believability in a prior proceeding creates a clear implication that the judge will not believe the party's testimony i…
Previewing 2 of 4 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“if taken as true, would prompt a reasonably prudent person to fear that he would not receive a fair and impartial trial. By that standard, disqualification was required.”
States the legal standard for when disqualification is mandated based on alleged bias
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Join FLexlaw to unlock all legal intelligenceThe DeMetros filed a motion to disqualify the judge assigned to their adoption petition. In a prior habeas corpus proceeding initiated by HRS to remov…
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FERGUSON, Judge.
The facts presented in the petitioners’ affidavit in support of their motion to disqualify the judge are such that; if taken as true,1 would prompt a reasonably prudent person to fear that he would not receive a fair and impartial trial. By that standard, disqualification was required.
Fearing that they would not receive a fair trial by the judge assigned to hear their petition to adopt a baby girl, the DeMetros filed a sworn motion for disqualification. The judge assigned to hear the adoption petition had made statements impugning the petitioners’ integrity in a prior proceeding for habeas corpus, initiated by the Department of Health and Rehabilitative Services (HRS), which sought to remove the child from the petitioners’ custody. Specifically, the affidavit alleges that in the prior proceeding the judge stated, on the record in open court, that petitioners had lied. As part of the final order in that case, the judge wrote that Mrs. DeMetro practices “voodoo and witchcraft” and that her conduct “can charitably be described as immoral.”
When the petition for disqualification was denied as being legally insufficient, the DeMetros filed an Emergency Writ of Prohibition arguing that their motion was improperly denied because the law is clear that “no judge under any circumstances is warranted in sitting in the trial of a cause whose neutrality is shadowed or even questioned,” Dickenson v. Parks, 104 Fla. 577, 582, 140 So. 459, 462 (1932).
Under Florida law, a judge’s statement that he feels a party has lied in a case before him, generally indicates bias against the party. Brown v. St. George Island, Ltd., 561 So. 2d 253, 257 (Fla.1990). In Brown, the court held that the judge’s remark, “I wouldn’t believe him anyway,” made in reference to a party, warranted disqualification for prejudice. This court has previously held, in a case involving a judge’s statement that a party’s testimony was unworthy of belief, that:
[T]he formation of a prejudice during and as a result of a party’s testimony in a trial need not affect the case in which it was arrived at in that manner, although it may operate to disqualify that judge from hearing any later or second trial of that case if one is had, or from participating in any subsequent trial in which that party is involved. Deauville Realty Co. v. Tobin, 120 So. 2d 198, 202 (Fla. 3d DCA 1960), cert. denied, 127 So. 2d 678 (Fla.1961).
While cautioning in Brown v. St George Island that a judge is not subject to disqualification simply because a ruling in an earlier proceeding had the effect of rejecting a party’s testimony, the supreme court made clear that disqualification is appropriate where there is “a clear implication that the judge will not believe the complaining party’s testimony in the future.” Brown, 561 So. 2d 253, 257, n. 7. In this case, the trial judge’s denouncement of the petitioners’ character and believability in the prior proceeding was a strong implication that he would not believe them in future proceedings, and that he had already formed a hostile opinion as to their fitness as parents. Brown and Deauville Realty compel disqualification.
Prohibition granted.
. The facts and reasons for the belief of prejudice must be taken as true, and the judge may pass only on the legal sufficiency of the motion and supporting affidavits. Brown v. St. George Island, Ltd., 561 So. 2d 253 (Fla.1990).
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Great Am. Ins. Co. OF NEW York v. 2000 Island Boulevard Condo. Ass'n, Inc., 153 So. 3d 384 (Fla. 3d DCA 2014)…eservation of rights letter.”4 The implication that Great American has been less than forthright with the Association by using “fancy talk” to obscure the meaning of its letter is further grounds for disqualification. See generally DeMetro v. Barad, 576 So. 2d 1353, 1355 (Fla. 3d DCA 1991) (stating disqualification is appropriate where there is “a clear implication that the judge will not believe the complaining party’s testimony in the future”). We acknowledge some of the trial court’s comments may have been…
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Lowman v. Racetrac Petroleum, Inc., 220 So. 3d 1282 (Fla. 1st DCA 2017)…t worthy of belief. As noted, Petitioner’s factual allegations must be taken as true. Under Florida law, a judge’s statement that he feels a party has lied is generally considered an indication of bias against the party. See, e.g., DeMetro v. Barad, 576 So. 2d 1353, 1354 (Fla. 3d DCA 1991) (citing Brown v. St. George Island, Ltd., 561 So. 2d 253, 257 (Fla. 1990)). In Brown, the Florida Supreme Court expressly agreed with the analysis by the Third District Court of Appeal which included reliance on Deauville Re…
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Holmes v. Hon. Barry E. Goldstein, 650 So. 2d 87 (Fla. 4th DCA 1995)…udge who believes, as a result of a previous case, that the defendant is credible and worthy. In a word, both sides in the present case were entitled to impartiality. See Brown v. St. George Island, Ltd., 561 So. 2d 253 (Fla.1990); DeMetro v. Barad, 576 So. 2d 1353 (Fla. 3d DCA 1991); Deauville Realty Co. v. Tobin, 120 So. 2d 198 (Fla. 3d DCA 1960). Respondent’s reliance upon Fischer v. Knuck, 497 So. 2d 240 (Fla.1986), is not persuasive, given the factual dissimilarity between the trial court’s remarks on th…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dickenson v. Parks, 104 Fla. 577 (Fla. 1932)
- Brown v. ST. George Island, Ltd., 561 So. 2d 253 (Fla. 1990)
- Deauville Realty Co., Inc. v. Tobin, 120 So. 2d 198 (Fla. 3d DCA 1960)
- Ryder Truck Lines, Inc. v. Carter, 127 So. 2d 678 (Fla. 1961)