GEORGE W. SCHOLZ, PETITIONER,
v.
HON. JAMES C. HAUSER, CIRCUIT COURT JUDGE, ETC., ET AL., RESPONDENTS
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Scholz, a former assistant coach for the Orlando Magic, sought a writ of prohibition after his motion to disqualify Judge Hauser was denied. The court held that the allegation that the judge was observed entering a restricted area reserved for Magic players and officials after an NBA playoff game was legally sufficient to require disqualification, despite the judge's explanation that he was wearing binoculars and entered to see a network television trailer.
The court held that the allegation was legally sufficient to require disqualification. A judge considering a motion to disqualify is not permitted to pass on the truth of the facts alleged, and a litigant who reasonably fears that a judge has accepted special privileges from an opposing party could reasonably fear that he may not receive a fair trial.
[1] A litigant may reasonably fear an unfair trial if a judge accepts special privileges from an opposing party.
[2] Allegations that a trial judge was observed entering a restricted area after a playoff game, where such access was not generally permitted, are legally sufficient to requ…
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Join FLexlaw to unlock all legal intelligence“A litigant who believes that a judge has accepted special privileges from an opposing party could reasonably fear that he may not receive a fair trial or hearing.”
Establishes the legal principle supporting disqualification when there is an appearance of bias from special access or privileges
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Join FLexlaw to unlock all legal intelligenceScholz filed a reverse discrimination and defamation action against the Orlando Magic after being terminated as an assistant coach, and Judge Hauser w…
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COBB, Judge.
Petitioner, George W. Scholz, seeks a writ of prohibition following the denial of his motion to disqualify respondent, the Honorable James C. Hauser. Scholz filed a reverse discrimination and defamation action against the Orlando Magic after being terminated as an assistant coach. Judge Hauser was assigned the ease.
The central allegation in the motion to disqualify is that Scholz’s attorney observed Judge Hauser at the NBA playoff game in Orlando on April 30, 1995, and after the game the judge was seen with a camera around his neck entering a restricted area limited to Orlando Magic players, officials, and members of the Orlando Arena Club. The motion to disqualify was accompanied by the affidavits of Scholz and his attorney. Scholz indicated that during his tenure with the Orlando Magic, not even his wife was allowed in this restricted area.
A litigant who believes that a judge has accepted special privileges from an opposing party could reasonably fear that he may not receive a fair trial or hearing. The allegation that the trial judge was viewed entering a restricted area after the playoff game is legally sufficient to require disqualification. See generally, Rule 2.160(d) and (0, Florida Rules of Judicial Administration (initial motion to disqualify should be determined only on basis of legal sufficiency — party must specifically describe perceived prejudice or bias of judge); Fischer v. Knuck, 497 So. 2d 240 (Fla.1986). The supreme court has indicated that if a charge of judicial bias or prejudice is “predicated on grounds with a modicum of reason,” the judge should recuse himself. See Livingston v. State, 441 So. 2d 1083 (Fla. 1983) (quoting Dickenson v. Parks, 104 Fla. 577, 582-84, 140 So. 459, 462 (1932)).
At the hearing on the motion to disqualify, Judge Hauser indicated that he was wearing binoculars around his neck, not a camera. The judge also stated that he went into the restricted area to see the network television trailer, and never saw anybody from the Orlando Magic. However, a judge considering a motion to disqualify is not permitted to pass on the truth of the facts alleged. See Rule 2.160(f), Florida Rules of Judicial Administration. We therefore grant the petition for writ of prohibition.
PETITION GRANTED.
PETERSON, CJ. and HARRIS, J., concur.
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Dep't of Agric. & Consumer Servs. v. Broward Cnty., 810 So. 2d 1056 (Fla. 1st DCA 2002)…gations of fact. Hayslip v. Douglas, 400 So. 2d 553 (Fla. 4th DCA 1981); Fla. R. Jud. Admin. 2.160(f). It is sufficient that the allegations are neither frivolous nor fanciful. Barnett v. Barnett, 727 So. 2d 311 (Fla. 2d DCA 1999); Scholz v. Hauser, 657 So. 2d 950 (Fla. 5th DCA 1995). Countervailing evidence is not admissible. Cave v. State, 660 So. 2d 705(Fla.1995). The parties rely on the related cases of Brake v. Murphy, 693 So. 2d 663 (Fla. 3d DCA 1997) and Brake v. Swan, 767 So. 2d 500 (Fla. 3d DCA 2000…
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Rollins v. Hon. Joseph P. Baker, 683 So. 2d 1138 (Fla. 5th DCA 1996)…r in the petition or in the underlying motion to disqualify, he tries to explain his actions, and he attempts to correct or explain allegations in the petition. Further, he inappropriately passes on the truth of the facts asserted. Scholz v. Hauser, 657 So. 2d 950, 951 (Fla. 5th DCA 1995). By doing so, Judge Baker has interjected himself into the litigation and has assumed the role of an adversary. This alone is a basis for disqualification. Bundy v. Rudd, 366 So. 2d 440 (Fla.1978); Mac-Kenzie v. Super Kids B…
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Robbins v. Robbins, 742 So. 2d 395 (Fla. 2d DCA 1999)…sitated recusal). We also note that Robbins’ allegation of Hicks’ friendship with the judge, together with the allegation that she has been seen socializing with the judge, is also legally sufficient to require recusal. See, e.g., Scholz v. Hauser, 657 So. 2d 950 (Fla. 5th DCA 1995) (holding that allegation that judge in case involving professional basketball team was seen entering restricted area of stadium after play-off game was legally sufficient in that it gave the appearance that the judge had received…
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
- Livingston v. State, 441 So. 2d 1083 (Fla. 1983)
- Anne Marie Fischer v. Honorable Francis X. Knuck, 497 So. 2d 240 (Fla. 1986)
- Dickenson v. Parks, 104 Fla. 577 (Fla. 1932)