Rule 2.330 Flashcards
What does this rule allow?
Allows a party to seek disqualification of the assigned trial judge where the party feels he will not receive a fair trial or hearing because of a specifically described prejudice or bias of the judge. Rule 2.330(f)
What should be done upon receipt of a legally sufficient motion to disqualify?
The judge shall immediately enter an order granting disqualification and proceed no further in the action.
Application of the rule
This rule applies only to county and circuit judges in all matters, in all divisions of court when acting alone as the sole judicial officer. It DOES NOT apply to:
- justices;
- appellate-level judges; or
- county & circuit judges sitting on a multi-judge appellate panel
Who may move?
Any party, including the state, may move to disqualify the judge assigned to the case.
A motion to disqualify shall…
- be in writing;
- allege specifically the facts and reasons upon which the movant relies as the grounds for disqualification, and identify the precise date when the facts constituting the grounds for the motion were discovered;
- be sworn to or affirmed by the party by signing the motion or by attaching a separate affidavit;
- include the dates of all previously granted motions to disqualify filed under this rule in the case and the dates of the orders granting those motions; and
- include a separate certification by the attorney for the party, if any, that the motion and the client’s statements are made in good faith.
Service
In ADDITION to filing with the clerk, the movant shall promptly serve a copy of the motion on the subject judge.
Grounds
A motion to disqualify shall set forth all specific and material facts upon which the judge’s impartiality might reasonably be questioned, including but not limited to:
- the party reasonable fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge; or
- the judge, the judge’s spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse of domestic partner of such a person:
- Has more than a de minimis economic interest in the subject matter in controversy or is a party to the proceeding, or an officer, director, or trustee of a party;
- is acting as a lawyer in the proceeding;
- has more than a de minimis interest that could be substantially affected by the proceeding; or
- is likely to be a material witness or expert in the proceeding.
- The judge served as a lawyer or was the lower court judge in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter; or
- the judge has prior personal knowledge of or bias regarding disputed evidentiary facts concerning the proceeding.
Prohibition against creation of grounds for disqualification based upon appearance of substitute or additional counsel
Upon the addition of new substitute counsel or additional counsel in a case, the party represented by such newly appearing counsel is prohibited from filing a motion for disqualification of the judge based upon the new attorney’s involvement in the case. This will NOT apply to a motion to disqualify a successor judge who was not the presiding judge at the time of the new attorney’s first appearance in the case.
Time.
A motion to disqualify shall be filed within a reasonable time NOT TO EXCEED 20 DAYS after discovery by the party or party’s counsel, whichever is earlier, of the facts constituting the grounds for the motion.
- any motion made during a hearing or trial must be based on facts discovered during the hearing or trial and may be stated on the record, provided that it is also promptly reduced to writing and promptly filed
- a motion made during hearing or trial SHALL be ruled on immediately
Determination - initial motion
The judge against whom an initial motion to disqualify is directed may determine ONLY the legal sufficiency of the motion and shall not pass on the truth of the facts alleged.
- if any motion is legally insufficient, an order denying the motion shall immediately be entered
- no other reason for denial shall be stated, and an order of denial shall NOT take issue with the motion
- if the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action
- such an order does NOT constitute acknowledgment that the allegations are true
Determination - successive motions
If a judge has been previously disqualified on motion for alleged prejudice or partiality, a successor judge CANNOT be disqualified based on a successive motion by the same party unless the successor judge rules that he or she is in fact not fair or impartial in the case. Such a successor judge may rule on the truth of the facts alleged in support of the motion.
Prior rulings
Prior factual or legal rulings by a disqualified judge may be reconsidered and vacated or amended by a successor judge based upon a motion for reconsideration, which must be filed within 30 days of the order of disqualification, unless good cause is shown for a delay in moving for reconsideration
Recusal upon judge’s initiative
Nothing in the rule limits the judge’s authority to enter an order of recusal
