When a Judge Cannot Judge You!

January 29, 2024

When a Judge Cannot Judge You!

In Wagner v. State, 342 So 3d 712 (Fla. 2d DCA 2022), the state appellate court granted a petition for a writ of probation seeking review of a trial judge’s decision to deny Mr. Wagner’s motion to disqualify his trial judge, and ordered the chief judge of the circuit court to appoint a successor judge.

The majority of the 3-judge panel focused on the added community found in the judge’s order denying the motion, which alleged that the judge’s extrajudicial activities put Mr. Wagner in reasonable fear that he would not receive fair judicial treatment in his DUI case. The motion detailed the judge’s participation in a faith-based group, alluded to statements made by the judge during a taped “Sunday Sermon,” and concluded that Mr. Wagner was fearful that the judge would be biased and prejudiced against DUI cases. The judge denied the motion as legally sufficient. The court correctly stated the legal standard of review applicable to such motions. See Shumpert v. State, 703 So. 2d 1128 (Fla. 2d DCA 1997) (if a legally sufficient motion is filed, it is the court’s duty to “sit silent as a Sphinx on the Nile”, to not dispute any of the factual allegations, and to disqualify himself or herself);

Mansfield v. State, 911 So. 2d 1160 (Fla. 2005) (fear of bias and prejudice must be “objectively reasonable” rather than a “subjective fear”; see also Fla. R. Gen. Prac. And Jud. Admin. 2.330 (e)(1)(defendant must “set forth specific and material facts upon which the Judge’s impartially might reasonably be questioned [because] the party reasonably fears that he or she will not receive a fair trial or hearing because of the specifically described prejudice or bias of the Judge.”).

However, the judge concluded that the fear did not appear to be “objectively reasonable,” after finding that Mr. Wagner did not present facts showing that the judge made any statement about him personally, about his charge, or about the law office that replaced his first attorney.

The trial judge went beyond only addressing the legal sufficiency of the motion by adding commentary that challenged the allegations regarding his religious beliefs.

But see Florida Rule of General Practice and Judicial Administration 2.330(h) (court “shall not pass on the truth of the facts alleged… No other reason for denial shall be stated, and an order denying the motion shall not take issue with the motion.”); Blalock v. State, 297 So. 3d 688, 690 (Fla. 1st DCA 2020) (when court “looks beyond the legal sufficiency … and attempts to refute the allegations, it exceeds the proper scope of inquiry and disqualification is required on that basis alone”); Mackenzie v Super Kids Bargain Store, 565 So. 2d 1332, 1339 (Fla. 1990) (“When a judge has looked beyond the mere legal sufficiency of a suggestion of prejudice and attempted to refute the charges of partiality, he has then exceeded the proper scope of his inquiry and on that basis alone established grounds for his disqualification.”); Rivera-Torres v. Fernandez, 320 So. 3d 996, 996 (Fla. 5th DCA 2021) (court went beyond finding motion to be legally insufficient in a manner which addressed the merits of the motion); Pilkington v. Pilkington, 182 So. 3d 776, 779 (Fla. 5th DCA 2015)

(“If the trial court [ ] comments on the validity or truthfulness of the motion’s allegations of bias, prejudice, or partially, the judge creates an independent ground for disqualification.”)

Finally, the majority of the appellate panel even found that the judge had “surreptitiously refuted” Mr. Wagner’s allegations by citing specific cases and making analogies that took issue with the motion to disqualify the judge. The order denying the motion seeking disqualification went well beyond the legal sufficiency of the motion.

Rest assured that our law office would not hesitate to file a motion to disqualify a Judge whose impartiality might be reasonably questioned in a given case. After all, “[j]ustice must satisfy the appearance of justice,” wrote the U.S. Supreme Court in Offutt v. United States, 348 U.S. 11, 14 (1954).


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