Friday, November 01, 2013

How to Disqualify a Florida Trial Judge

How to Disqualify a Florida Trial Judge

The Florida Code of Judicial Conduct imposes certain constraints on judges' behavior. Canon 3 warns the judge against prejudice. However, judges assert immunity for their errors and torts as components of judicial acts.  So litigants can't do much more about judicial prejudice than complaining to the Judicial Qualifications Commission, legislature, bar, and news or social media to make a record, and look for dirt on the judge through private investigation, particularly of the judge's financial affairs and general integrity outside of court, or campaigning against the judge in the next election or appointment opportunity.  But in the more immediate sense, one can seek to disqualify the judge.  Florida makes provisions for that in the law and rules.  

  • Start by citing specific violations of Canon 3. 
    "A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently"
  • Study and cite this case opinion: Rogers v State 630 So. 2d 513
  • Fl. Statute 38.10,
  • Rules of Judicial Admin, Rule 2.330
  • I like this "Toca Technique":  
    The law and rule allow a litigant to force disqualification of only one judge.  File judicial notice of intent to file a motion for disqualification for prejudice.  This might motivate judge to recuse self to avoid embarrassment.  If judge does not recuse self, THEN file the motion to disqualify.  This preserves the right to disqualify for use on a subsequent judge if the current judge recuses self. 

  • Nowadays virtually every judge will declare that the motion to disqualify lacks legal sufficiency, and deny the motion.  I don't know of anything to beat this but motion for clarification (then correct and refile the motion), motion to reconsider, and interlocutory appeal.
  • Example - The below effort did not fully work but shows the Toca Technique in action.  Jesse Toca did not carry it through to completion, but he might some day. - Enter Case #:  10-009935RX
Jesse Toca vs. Florida Department of Revenue (filed 10/29/2010)
The docket offers trove of interesting documents.


Bob Hurt         Blog 1 2 3   f  t  
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