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Eric Rivera v. Joshua Bosque, Case No. 5D15-3755 (5th DCA)

In Rivera, the defendant in the underlying case sought appellate review of a trial court order denying his motion to disqualify the presiding judge. The plaintiff in the underlying personal injury suit is represented by two attorneys from the law firm Payas, Payas & Payas. Both attorneys are involved in the presiding judge’s ongoing reelection campaign. One of the attorneys is listed as one of many who supported the judge’s reelection. The other attorney however has a more significant role, including serving as a member of the reelection campaign committee and a host committee for a reception in support of the judge’s reelection, attending a fundraiser, being listed as a supporter of the judge’s reelection and making a financial contribution to the judge’s reelection campaign.

The Fifth District noted that motions to disqualify are governed substantively by Section 38.10, Florida Statutes, and procedurally by Florida Rule of Judicial Administration 2.330. “Pursuant to the rule, a judge against whom an initial motion to disqualify has been directed shall determine only the legal sufficiency of the motion without passing on the truth of the facts alleged.” The legal sufficiency of the motion turns on whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial. “The judicial inquiry should focus on the reasonableness of the affiant’s belief that the judge may be biased, and not the judge’s own perception of his or her ability to act fairly.” The facts must be viewed from the perspective of the petitioner.

The defendant in this case moved to disqualify the presiding judge arguing that he feared he would not be afforded a fair trial before the current judge based on three grounds. The first concerned the nature and timing of certain rulings made by the trial court. “[A]dverse or unfavorable legal rulings, without more, are not legally sufficient grounds for disqualification.” The second dealt with a perceived disparity between the parties’ ability to obtain hearing times. “Perceived scheduling issues, by themselves, are not legally sufficient grounds to support a motion to disqualify the trial judge.” The Fifth District noted however that while the first two reasons are not legally sufficient to require disqualification, they provide context for the third reason – the plaintiff’s counsel’s significant involvement in the trial judge’s ongoing reelection campaign. The Fifth District found that several cases address disqualification based upon counsels’ participation in judicial elections. “Florida law is clear that involvement of a relatively limited nature in a judge’s prior campaign, i.e., neither ongoing nor recently concluded, is not grounds for disqualification.” “On the other hand, counsel’s significant involvement in a current, ongoing, or recently concluded reelection campaign constitutes sufficient legal grounds for granting a motion to qualify.”

Given that the presiding judge’s reelection campaign is underway, ongoing, active and likely to remain that way beyond the date set for trial, and at least one of the plaintiff’s attorneys is significantly involved in the campaign, the Fifth District found a legally sufficient basis for disqualification.


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