IN RE GUARDIANSHIP OF O.A.M.
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The court held that the trial judge's ex parte investigation of facts warranted disqualification, as it created a reasonable fear of partiality.
[1] A judge must not independently investigate facts in a case and must consider only the evidence presented.
[2] A judge's neutrality is destroyed when the judge becomes part of the fact-gathering process.
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Join FLexlaw to unlock all legal intelligencePetitioners sought disqualification of the guardianship judge, alleging the judge conducted an independent, ex parte investigation by interviewing a s…
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Richard and Lillie McFadden petition this Court for a writ of prohibition directing the trial judge to disqualify himself from these guardianship proceedings. The McFaddens assert that the trial judge improperly conducted an independent, ex-parte investigation of the April 29, 2010 disbursement of funds for the ward’s educational needs. We agree.
“The test for determining the legal sufficiency of a motion for disqualification is whether the factual allegations would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial.” Baez v. Koelemij, 960 So.2d 918, 919 (Fla. 4th DCA 2007) (citations and internal quotation omitted). In reviewing the allegations in a motion for disqualification, “facts must be taken as true and must be viewed from the mov-ant’s perspective.” Id.
The McFaddens’ motion contains specific statements indicating that the trial judge interviewed, outside the presence of the parties, the principal of the school where the ward was registered to attend. The motion also alleges the trial judge directly obtained financial records from Chase Bank to investigate the guardianship account, without involving the parties. The McFaddens’ motion thus contains specific statements which, if true, indicate the trial judge engaged in an independent investigation of the facts in the case.
“A judge must not independently investigate facts in a case and must consider only the evidence presented.” Fla. Code Jud. Conduct, Canon 3B(7) cmt. A judge’s “neutrality is destroyed when the judge himself becomes part of the fact-gathering process.” Albert v. Rogers, 57 So.3d 233, 236 (Fla. 4th DCA 2011); see also Vining v. State, 827 So.2d 201, 210 (Fla.2002) (“The judge overstepped his boundaries by conducting an independent investigation....”); Wilson v. Armstrong, 686 So.2d 647, 648-49 (Fla. 1st DCA 1996) (holding that trial judge’s ex parte meeting with estate’s accountant constituted a departure from the essential requirements of law).
The trial judge responded to the petition noting that “[i]n guardianship matters, there is no one protecting the ward against possible abuses [by the guardian], except the court.” A trial judge, however, has methods to address such concerns without engaging in a prohibited personal investigation of facts outside the record. The Florida Probate Rules, for example, authorize appointment of a guardian ad litem when the interests of the guardian are or may be adverse to those of the ward.1 *1033While the trial court’s actions were undoubtedly motivated by a desire to protect the ward and might well be commendable in another context, those actions are inconsistent with the cold neutrality required of an impartial judge.
Thus, the McFaddens’ allegations, taken as true for purposes of this motion, support a reasonable fear that the judge could no longer serve impartially. The judge should have entered an order of disqualification.
Believing as we do that the trial court will comply with this opinion without the necessity of the issuance of a formal writ, the issuance of the writ of prohibition is withheld.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Fla. Power & Light Co. v. Heydi Velez (Fla. 3d DCA 2023)…cus is “not on what the judge intended, but rather how the message is received and the basis of the feeling.” Cisneros, 314 So. 3d at 683 (quoting Nguyen v. Nguyen, 229 So. 3d 407, 407 (Fla. 3d DCA 2017)); see also In re Guardianship of O.A.M., 124 So. 3d 1031, 1032 (Fla. 3d DCA 2013) (“In reviewing the allegations in a motion for disqualification, ‘facts must be taken as true and must be viewed from the movant’s perspective.’” (quoting Baez v. Koelemij, 960 So. 2d 918, 919 (Fla. 4th DCA 2007)). ---PA…
Authorities Cited
- Vining v. State, 827 So. 2d 201 (Fla. 2002)
- Burden v. Robert J. Dickman Ad Litem of Adam Paul Burden, 547 So. 2d 170 (Fla. 3d DCA 1989)
- Albert v. Rogers, 57 So. 3d 233 (Fla. 4th DCA 2011)
- Wilson v. Armstrong, 686 So. 2d 647 (Fla. 1st DCA 1996)
- Baez v. Henriette Koelemij, 960 So. 2d 918 (Fla. 4th DCA 2007)