B.J. LAYNE AND RICHARD BERNSTEIN, PETITIONERS,
v.
THE HONORABLE RHEA PINCUS GROSSMAN, JUDGE OF THE 11TH JUDICIAL CIRCUIT, IN AND FOR DADE COUNTY, FLORIDA, RESPONDENT
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Petitioners sought a writ of prohibition to disqualify a trial judge who allegedly expressed prejudice after learning of their inquiry about the judge's prior representation. The court held that the judge's private statement expressing offense at an perceived attack on her integrity was sufficient grounds for disqualification, even without independent corroborating witnesses as technically required by statute.
The trial court should have granted the motion to disqualify. The judge's alleged private statement expressing offense at the inquiry and deeming it an attack on her integrity is a sufficient ground for disqualification because it creates a well-founded fear that the petitioners cannot receive fair and impartial treatment.
[1] A judge's statement that a party's inquiry constitutes an unwarranted attack on her integrity is a sufficient ground for disqualification, as it creates a well-founded fe…
[2] The technical requirement of two independent witnesses to attest to a private communication made by a judge is not necessary when such a communication is alleged to have…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The judge's alleged reaction to the petitioners' inquiry is, in our view, a sufficient ground for disqualification, since it in itself makes well founded the petitioners' stated fear that having made what the judge considered to be an unwarranted attack on her integrity, they could no longer receive fair and impartial treatment at the judge's hand.”
Establishes that the judge's stated offense at the inquiry itself constitutes grounds for disqualification by demonstrating the petitioners cannot receive impartial treatment.
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Join FLexlaw to unlock all legal intelligencePetitioners Layne and Bernstein asked a third party whether Judge Grossman had previously been represented by counsel now representing their adversary…
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PER CURIAM.
Upon consideration of the petition for writ of prohibition, the response thereto, and argument of counsel, we conclude that the trial court should have granted petitioners’ motion to disqualify.
The essential allegations of the motion to disqualify, the truth of which must be accepted, were that the petitioners, through Layne, had asked a third party whether the respondent had in the past been represented by the same counsel who were representing Layne and Bernstein’s adversary in the action pending before the respondent, and that the respondent, upon being informed by the third party of Layne’s inquiry, stated that she deemed the inquiry to be an attack on her integrity. Implicit in the respondent’s statement is that the perceived attack on her integrity was unwarranted. The judge’s alleged reaction to the petitioners’ inquiry is, in our view, a sufficient ground for disqualification, since it in itself makes well founded the petitioners’ stated fear that having made what the judge considered to be an unwarranted attack on her integrity, they could no longer receive fair and impartial treatment at the judge’s hand. See McDermott v. Grossman, 429 So. 2d 393 (Fla. 3d DCA 1983).
Under the circumstances of a case such as this, where the communication alleged to have been made by the respondent is private, and it is therefore impossible for other affiants to attest to the fact of the communication, that technical requirement of Section 38.10, Florida Statutes (1981), need not be met. While it is suggested that anything less than strict adherence to the statutory requirements would invite abuse, we believe that laws prohibiting perjury in judicial proceedings and rules regulating the conduct of attorneys are adequate to control any envisioned abuse. But even assuming such an abuse might occur, it is far more tolerable than the suggested alternative that a judge may with impunity privately express blatant prejudice against a party or his attorney and deny disqualification on the ground that the technical requirement of the statute requiring two independent witnesses to attest to the prejudicial event has not been met.
Accordingly, we find that the moving papers are sufficient to require disqualification, that the motion was filed without inordinate delay, and that the writ of prohibition should be granted. Writ issued and cases remanded to the Eleventh Judicial Circuit with directions to blind file the cases in accordance with established procedures.
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Lamendola v. The Honorable Rhea Pincus Grossman, 439 So. 2d 960 (Fla. 3d DCA 1983)…PER CURIAM. On the virtually indistinguishable authority of Layne v. Grossman, 430 So. 2d 525 (Fla. 3d DCA), rev. denied, 438 So. 2d 832 (Fla.1983),and McDermott v. Grossman, 429 So. 2d 393 (Fla. 3d DCA 1983), we conclude that the trial court should have granted petitioners’ motion to disqualify. The trial judge’s alleged threat to the petit…
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Stimpson Computing Scale Co., Inc. v. The Honorable Francis X. Knuck, 508 So. 2d 482 (Fla. 3d DCA 1987)…he merits of Stimpson’s charges. A judge may only examine a petition for recusal to determine if sufficient facts are alleged demonstrating entitlement to disqualification. Mangina v. Cornelius, 462 So. 2d 602 (Fla. 5th DCA 1985); Layne v. Grossman, 430 So. 2d 525 (Fla. 3d DCA), rev. denied, 438 So. 2d 832 (Fla.1983). The truth of the allegations notwithstanding, once a judge exceeds the scope of inquiry required by Rule 1.432(d), recusal is mandated. Lake v. Edwards, 501 So. 2d 759 (Fla. 5th DCA 1987); Layne…
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Cannon v. U.S. Bank Nat'l Ass'n, 171 So. 3d 133 (Fla. 4th DCA 2015)…ve entered an order of disqualification. If the facts in the motion are false, then the “laws prohibiting perjury in judicial proceedings and rules regulating the conduct of attorneys are adequate to control any envisioned abuse.” Layne v. Grossman, 430 So. 2d 525, 526 (Fla. 3d DCA 1983).…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McDERMOTT v. The Honorable Rhea Pincus Grossman, 429 So. 2d 393 (Fla. 3d DCA 1983)