RICHARD MARCOTTE, ETC., ET AL., PETITIONERS,
v.
HON. LINDA GLOECKNER, CIRCUIT COURT JUDGE, ETC., ET AL., RESPONDENTS
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Petitioners sought a writ of prohibition challenging a trial judge's denial of their motions to disqualify. The court granted the petition, holding that the judge should have been disqualified because a law firm representing a party to the litigation had recently represented the judge in an unrelated matter, creating an impermissible appearance of bias.
The trial judge should have granted the motions to disqualify. Although the judge may not have been actually biased, the appearance of justice prohibits the judge from continuing in the case when a law firm representing a party previously represented the judge in a separate matter.
[1] A writ of prohibition may be granted to challenge an order denying motions to disqualify a trial judge.
[2] Disqualification of a trial judge is required when the judge's law firm simultaneously represented the judge in an unrelated matter and a party in the pending litigation.
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Join FLexlaw to unlock all legal intelligence“the appearance of justice proscribes the trial judge from continuing, even though the record may be void of any actual bias or prejudice on her part”
Establishes that disqualification is required based on appearance of bias, not actual bias
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Join FLexlaw to unlock all legal intelligencePetitioners filed consolidated cases and moved to disqualify the trial judge. They alleged that a law firm now representing the subrogated insurer (a …
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PER CURIAM.
Petitioners, plaintiffs below in three consolidated cases, seek a writ of prohibition from this court. They challenge the trial court’s order denying their motions to disqualify. Under the circumstances presented, we grant the petition.
Petitioners alleged in their motions to disqualify that a law firm now involved with the instant litigation by virtue of its representation of the subrogated insurer, also recently represented the trial judge, who was a defendant in an unrelated civil action. Though the law firm no longer represents the judge, at one point it was representing both the judge and the insurer simultaneously.
On the instant facts, the trial court should have granted the motions to disqualify. See Atkinson Dredging Co. v. Henning, 631 So. 2d 1129 (Fla. 4th DCA 1994) (recusal was required where the law firm representing one of the parties was the same law firm representing the trial judge and her husband in a separate, unrelated action); see also Potashnick v. Port City Constr. Co., 609 F. 2d 1101 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980) (where representation of trial judge by law firm was not ongoing, but was concurrent with the pending subject case, the appearance of bias was significant even in absence of actual bias); Smith v. Sikorsky Aircraft, 420 F.Supp. 661 (C.D.Calif.1976) (sua sponte ordering case reassignment based on past representation of the trial judge by plaintiffs’ law firm). Though the trial judge in the instant case may not have been biased as a matter of fact, that is of no moment because, as Henning explained, “the appearance of justice proscribes the trial judge from continuing, even though the record may be void of any actual bias or prejudice on her part.” Henning, 631 So. 2d at 1130.
Additionally, while the motions to disqualify came after an adverse ruling, we do not agree with respondents that the motions were untimely as a result since the affidavits allege that the underlying facts were discovered only afterwards. We therefore conclude that Fischer v. Knuck, 497 So. 2d 240 (Fla.1986), declined to extend on other grounds, Airborne Cable Television, Inc. v. Storer Cable TV of Florida, Inc., 596 So. 2d 117 (Fla. 2d DCA 1992) is distinguishable.
Accordingly, we grant the petition for writ of prohibition. Because we are confident that the trial judge will promptly comply with this court’s opinion, we withhold formal issuance of the writ at this time.
PETITION GRANTED.
COBB, GOSHORN and THOMPSON, JJ., concur.
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Cited By (11 total)
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Berry v. Berry, 765 So. 2d 855 (Fla. 5th DCA 2000)…usband’s attorney was simultaneously representing both the husband and the judge reasonably called into question the judge’s impartiality and thus rendered the motion legally sufficient requiring him to disqualify himself. See Marcotte v. Gloeckner, 679 So. 2d 1225 (Fla. 5th DCA 1996); Atkinson Dredging Company v. Henning, 631 So. 2d 1129 (Fla. 4th DCA 1994). However, notwithstanding the legal sufficiency of the motion, the trial judge maintained that his disqualification should be entered only after the judgm…
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State v. Octavio Oliu, 183 So. 3d 1161 (Fla. 3d DCA 2016)…ained in the motion must be taken as true. Masten v. State, 159 So. 3d 996, 997 (Fla. 3d DCA 2015). Actual bias or prejudice need not be shown, rather, it is the appearance of bias or prejudice which requires disqualification. Marcotte v. Gloeckner, 679 So. 2d 1225, 1226 (Fla. 5th DCA 1996). In the instant criminal. case, the State has charged the defendant with acting illegally and fraudulently while serving as a City of Sweetwater police officer. The trial judge represented this same police officer in his a…
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Bethesda Mem'l Hosp., Inc. v. Cassone, 807 So. 2d 142 (Fla. 4th DCA 2002)…at it was filed within ten days after discovery of the facts constituting the grounds for recu-sal. This affirmation is not refuted by the record, and there is no basis therein to find that the motion was not timely filed. See Marcotte v. Gloeckner, 679 So. 2d 1225 (Fla. 5th DCA 1996)(accepting the sworn allegation of timeliness absent any indication in the record otherwise). Accordingly, we grant the petition and direct Judge Wessel to disqualify himself in this proceeding. KLEIN, J., concurs. STONE, J., d…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anne Marie Fischer v. Honorable Francis X. Knuck, 497 So. 2d 240 (Fla. 1986)
- Potashnick v. Port City Constr. Co. & United States Fid. & Guar. Co., 609 F.2d 1101 (5th Cir. 1980)
- Merrion v. Jicarilla Apache Tribe, 449 U.S. 820 (U.S. 1980)
- Dupart v. Louisiana, 449 U.S. 820 (U.S. 1980)
- Atkinson Dredging Co. v. Judge Patti Englander Henning, 631 So. 2d 1129 (Fla. 4th DCA 1994)
- Airborne Cable Television, Inc. v. Storer Cable TV OF Fla., Inc., 596 So. 2d 117 (Fla. 2d DCA 1992)