ROSIE VIVAS, PETITIONER,
v.
HARTFORD FIRE INSURANCE COMPANY, RESPONDENT
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Rosie Vivas sought a writ of prohibition to overturn a trial judge's denial of her motion to recuse. The court held that the judge's comments about being fraternity brothers with opposing counsel, combined with his manner of disclosure, could reasonably cause a party to fear bias, warranting disqualification regardless of the judge's subjective intent.
The court granted the petition for writ of prohibition, holding that although disclosure of a fraternity relationship alone may not be unnecessary, the manner and context of the judge's disclosure—combined with his other comments—could reasonably cause a party to fear that the judge would be biased in favor of opposing counsel and against the party seeking disqualification, warranting reassignment to a different judge.
[1] A judge's disclosure of a personal relationship with an attorney involved in a case, even if intended as a joke, can create a reasonable concern of bias in the opposing p…
[2] The standard for recusal is the reasonable effect of the judge's conduct on the party seeking disqualification, not the judge's subjective intent.
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“the standard is the reasonable effect on the party seeking disqualification, not the subjective intent of the judge”
Establishes the objective test for assessing whether judicial comments create grounds for disqualification, citing State ex rel. Brown v. Dewell
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Join FLexlaw to unlock all legal intelligenceAt a hearing in Vivas's case, the judge asked opposing counsel where 'Eddy Moss' was, and when informed that Hildy Sastre represented Hartford on beha…
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KLEIN, J.
Petitioner seeks a writ of prohibition from an order denying her motion to recuse the trial judge. The verified motion to recuse alleges that the following occurred at a hearing:
Q. (Judge to Hildy Sastre) Where’s Eddy Moss?
A. (Ms Sastre) Your Honor, I’m Hildy Sastre. I’m from Mr. Moss’s firm here on behalf of Defendant, Hartford.
Q. (Judge) Well I could see you weren’t Eddy. Did you know that he and I went to the same college together and were in the same fraternity — in fact I was the Pledgemas-ter in the class where Eddy was a pledge of mine. Now you be sure and tell Eddy I want him in here at the trial of this case?
A. (Ms. Sastre) Yes your honor, I’ll tell him.
The foregoing exchange was then interrupted by attention to the motion then pending after which the Judge said:
Q. (J. Fleet) You know there was this other case in which one of the lawyers was in my fraternity, and I disclosed this, and can you imagine, after I said this the other lawyer still agreed to a non-jury trial?
A. (Ms. Sastre) No response.
Several days later it was alleged that the following occurred at another hearing:
Q. Did you deliver the message I gave you to Eddy?
A. (Ms. Sastre) Yes, your honor. Although it was unnecessary for the trial court to disclose that he was a fraternity brother of a member of a law firm, if their relationship amounted to nothing more than that, we agree with petitioner that the manner in which the court made the disclosure along with his other comments could reasonably have caused her to be concerned that the judge “would be biased in favor of Mr. Moss and against my case.”
As Judge Stevenson observed in Brofman v. Florida Hearing Care Center, Inc., 703 So. 2d 1191, 1192 (Fla. 4th DCA 1997):
While the trial judge may have meant the remark to be a joke, rather than a reflection on his belief as to the merits of the petitioner’s complaint, the standard is the reasonable effect on the party seeking disqualification, not the subjective intent of the judge. See State ex rel. Brown v. Dewell, 131 Fla. 566, 573, 179 So. 695, 697-98 (1938), quoted in Hayslip[ v. Douglas], 400 So. 2d at 556 [(Fla. 4th DCA 1981)]. Jokes by the trial judge are a risky venture in any event, and the closer the joke to the subject matter of the litigation, the greater the risk that the attempted humor will, in one way or another, be inappropriate.
We grant the petition for writ of prohibition and remand for assignment to a different judge.
GROSS and HAZOURI, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Valdes-Fauli v. Gonzalo F. Valdes-Fauli, 903 So. 2d 214 (Fla. 3d DCA 2005)…erhaps true in this very case, trial judges seem to be forbidden even the right to the expression of ordinary human discourse and banter in the course of performing their duties. See Copiers Int’l, 825 So. 2d at 438; Vivas v. Hartford Fire Ins. Co., 789 So. 2d 1252 (Fla. 4th DCA 2001); Don King Productions, Inc. v. Chavez, 768 So. 2d 538 (Fla. 4th DCA 2000); Begens v. Olschewski, 743 So. 2d 133 (Fla. 4th DCA 1999); Roy v. Roy, 687 So. 2d 956 (Fla. 5th DCA 1997). [*219] Even more, I am concerned with the growin…
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Kopel v. Bernardo Kopel, 832 So. 2d 108 (Fla. 3d DCA 2002)…erhaps true in this very case, trial judges seem to be forbidden even the right to the expression of ordinary human discourse and banter in the course of performing their duties. See Copiers Int’l, 825 So. 2d at 438; Vivas v. Hartford Fire Ins. Co., 789 So. 2d 1252 (Fla. 4th DCA 2001); Don King Productions, Inc. v. Chavez, 768 So. 2d 538 (Fla. 4th DCA 2000); Begens v. Olschewski, 743 So. 2d 133 (Fla. 4th DCA 1999); Roy v. Roy, 687 So. 2d 956 (Fla. 5th DCA 1997). Even more, I am concerned with the growing acc…
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Molina v. Perez, 187 So. 3d 909 (Fla. 3d DCA 2016)…1, 1192 (Fla. 4th DCA 1997). In reviewing a petition based upon comments made by the trial court, “the standard is the reasonable effect on the party seeking disqualification, not the subjective intent of the judge.” Vivas v. Hartford Fire Ins. Co., 789 So. 2d 1252, 1253 (Fla. 4th DCA 2001) (quoting Brofman, 703 So. 2d at 1192), (emphasis added). In this case we agree with the petitioner that the alleged comments could reasonably have caused her to “fear that she would not receive a fair trial.” As stated in…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Dewell, 131 Fla. 566 (Fla. 1938)
- Brofman v. Fla. Hearing Care Ctr., Inc., 703 So. 2d 1191 (Fla. 4th DCA 1997)