Carnevale v. Shir
4/26/23, Judge Bokor
Topics: Disqualification or Recusal of Judge; Writ of Prohibition
Carnevale, the Appellant, filed motions to disqualify the trial judge from presiding over three cases. The Carnevales argued that the trial judge showed bias due to social medial postings showing a friendly relationship with a proposed third-party intervenor, Mr. Feldman (a lawyer), and Mr. Feldman’s counsel. The judge also allowed Mr. Feldman to participate in hearings without having been formally added as a party.
Rule 2.330(i) bars a second motion to disqualify a judge for alleged prejudice or partiality if there was a prior motion by the same party and a successor judge was appointed. The only exception is if the judge rules that he or she is in fact not fair or impartial. Here, the judge denied the motion to disqualify him based on the fact that the Carnevales had filed a motion to disqualify the predecessor judge.
After the judge denied the motions, the Carnevales filed petitions for writs of prohibition in all three cases. The DCA put out three identical orders for all three cases. Though a petition is an original proceeding, not an appeal, the DCA stated that if a successor judge does not admit he or she is impartial, the DCA “reviews” that determination under an abuse of discretion. The DCA cited one of its cases from February 2023 for the proposition that prohibition “does not lie unless the record clearly refutes the successor judge’s decision to deny the motion.”
(NOTE: The standard applied here seems to apply only to motions against successor judges. In ANOTHER case issued by the Third DCA in February 2023, Saenz v. Sanchez, the court expressly stated that the standard of review of a trial court’s determination on a motion to disqualify is de novo, not abuse of discretion, and it cited its own precedent in Rodriguez v. Halsall, No. 3D22-2056, 2023 WL 27889, at *1 (Fla. 3d DCA Jan. 4, 2023). And the standard for obtaining the writ in a case where a judge denied a motion to disqualify was this: “To be legally sufficient, a motion to disqualify must demonstrate some actual bias or prejudice so as to create a reasonable fear that a fair trial cannot be had.” Hollywood Park Apartments West, LLC v. City of Hollywood, Florida, No. 4D22-1523, 2023 WL 151312, at *1 (Fla. 4th DCA Jan. 11, 2023)(quoting Downs v. Moore, 801 So. 2d 906, 915 (Fla. 2001)(internal quotation omitted)). Those cases did not deal with successor judges, but, frankly, that fact should not affect the standard for a writ involving original jurisdiction. Technically, the DCA is not “reviewing” anything. It’s not an appeal. Which is why the de novo standard is the only one that makes sense. And the substance—proof of actual bias or prejudice so as to create a reasonable fear that a fair trial cannot be had—seems equivalent to the rule that a movant must show that a successor judge is in fact not fair or impartial. The major difference in the cases does not seem attributable to the law on the merits, but, instead, the DCA’s decision whether to apply a “de novo” standard or an “abuse of discretion” standard, and the Third DCA seems to be putting out contrary decisions. Or that is, at least, Terry’s Take on the issue.)
The DCA did, however, move on to analyze the facts, and its factual findings exonerate the judge. Thus, it appears that the DCA would have reached the same result based on a de novo review.