Judicial Disqualification & Recusal in Florida
There are a number of different bases for seeking judicial disqualification in Florida. Among these is a court rule, Rule 2.330 of the Florida Rules of Judicial Administration. The Florida Legislature has also adopted a series of statutes [Florida Statute §§ 38.01 et seq.] which deal with the subject of recusal and disqualification of judges. For instance, F.S.A. § 38.01 provides for disqualification when a judge is a party to the pending action, while § 38.02 states that a party may show, by a “suggestion,” that the challenged judge or his relative is a party or otherwise interested in the outcome of the case, is related to one of the attorneys, or is a material witness. Another Florida statute, F.S.A. § 38.05, authorizes a Florida judge to disqualify himself on his own motion whenever he knows of any ground for recusal. The conduct of Florida judges is also regulated by the Florida Code of Judicial Conduct; which, in certain circumstances, may provide an independent basis for judicial disqualification.
Unlike in many other jurisdictions, a Florida judge cannot be removed on the basis of a party’s “peremptory” challenge. However, pursuant to F.S.A. § 38.10, whenever a party files a motion stating that he fears that, because of the assigned judge’s bias he will not receive a fair trial, the judge “shall proceed no further and another judge shall be designated.” In order to avail itself of this provision, the moving party must submit a timely affidavit setting forth the facts and reasons for believing that personal bias exists, which must be accompanied by a certificate of counsel of record declaring that the affidavit and application were made in good faith. As long as the moving party seeks relief in a timely fashion, follows the requisite procedures, and can demonstrate that a reasonable person in his position would have a “well-founded,” objectively reasonable fear that he will not receive a fair trial, he is entitled to the requested relief. Unlike in other states, where “for cause” challenges seldom carry the day, Florida law is replete with examples of cases in which courts have found that the moving party had an objectively reasonable fear that he would not receive a fair trial.
1. For a 2011 Florida Senate Report which focuses on the subject of recusal and disqualification Interim Report 2011-128 (Review the Procedures and Standards Governing Judicial Disqualification), citing R. Flamm, “Judicial Disqualification in Florida,” 70 F LA . B.J. 58, 58 (Feb. 1996). To request a copy of this 1996 article referred to in the Interim Report click here
3. For an analysis of recusal and disqualification law in Florida which is updated annually see Flamm, R., Judicial Disqualification: Recusal and Disqualification of Judges (Second Edition, 2007), § 28.11 . To locate Florida libraries that have the current edition of this book click here
For a 2011 Law Review article by a Stetson Law Professor see L. Virelli, the “(Un)constitutionality of Supreme Court Recusal Standards,” Wis. L. Rev 2011: 1981, citing R. Flamm. click here
For a a list of Opinions by the Florida Ethics Advisory Committee on the subject of Disclosure and Disqualification click here