Guardianship News:

On Recusing a Judge in Probate

A typical civil court procedure: "You are free to leave this court once you give us all your money in the form of unnecessary & unwanted legal fees, that I, as judge, will ensure you are charged. You WILL pay these legal fees.". A typical civil court procedure: "You are free to leave this court once you give us all your money in the form of unnecessary & unwanted legal fees, that I, as judge, will ensure you are charged. You WILL pay these legal fees.".

 

We receive lots of desperate phone calls (usually at the last second) asking what can be done about judges who appear to be biased and are about to make rulings of grave consequence to victims and their families.

We shed some light on the topic below.

Note: This is not legal advice, nor should it be construed as such. Consult a competent attorney for legal advice.

Neil Goodman writing in Lawyers.com blog reviews a range of issues regarding judge recusal that we discuss below.

Our American judicial system demands that a judge who presides over a case must be fair and impartial. Rarely does the issue of a judge’s fairness and impartiality ever come up but, when one of the parties has reason to believe that the judge cannot be fair and impartial, probate litigants are forced to consider their options.

Even the suspicion of bias is enough to warrant a motion for recusal.

Sometimes the judge recognizes his or her own inability to remain impartial. In those situations, the judge will either recuse himself or the litigant will move to have the judge disqualified from presiding over the case.

Here are some of the circumstances that may lead to a judge’s recusal or disqualification for violation of the ABA Model Judicial Code of Conduct  found here .

Bias or prejudice typically means the judge has acted or spoken in a way that prevents him or her from treating the party or attorney in a fair and impartial manner.

 

Bias or Prejudice Concerning a Party or Attorney. If a judge is biased or prejudiced for or against a party or attorney, he cannot be fair and impartial in a ruling.  A party or attorney who believes such bias or prejudice exists and that the judge must be replaced must prove it with admissible evidence, and cannot base this belief on mere suspicion.

This concern must be presented to the judge in the form of a formal motion.

It’s not enough to establish bias or prejudice simply by showing that a judge has ruled against the party or attorney in a prior case. Rather, bias or prejudice typically means the judge has acted or spoken in a way that clearly and provably prevents him or her from treating the party or attorney in a fair and impartial manner—a pretty high standard!

Evidence of bias might include:

  • A history of prior appellate reversals in other cases
  • A pattern of wanton sanctioning and fines
  • Retaliation against a whistleblower
  • Derogatory or inappropriate statements made in hearings
  • A pattern of unnoticed or improper ex-parte meetings with one side
  • A history of prior recusals for cause
  • Prior oversight Board admonishments
  • Not allowing discovery
  • Refusing to allow witnesses
  • Refusing to answer questions
  • Refusing or ignoring evidence
  • Sequestering records inappropriately
  • Inappropriately invoking the rule –a ruleof civil procedure that allows a party to request the courtroom be cleared so that a witness of your can be prevented from hearing the testimony of other witnesses in the trial to needlessly disadvantage you
  • Threatening or derogatory remarks from the judge

 

Specifically, the following situations are red flags:

Judge’s Personal Knowledge of Disputed Facts.  A Judge cannot be fair and impartial if he or she has personal knowledge of disputed facts (such as those divulged in ex-parte meetings), because the judge’s evidentiary rulings may be influenced by that knowledge. This is especially true when the facts known by the judge are either not part of the factual record of the case, or conflict with the evidence presented in court.

Judge’s Relationship to a Party or Attorney. A judge’s fairness and impartiality may be compromised when he or she has had a personal (spousal or familial) business or professional relationship with a party or attorney, for example a common investment, property, outstanding debt, membership on a re-election committee, or any other situation where the judge would possibly ( even unintentionally) place more credence or weight on the leadings of one litigant or lawyer over another. In cases where the judge was a party’s business partner or attorney, as well as in cases where the judge was a member of a law firm representing a party, the potential for bias or prejudice is almost always too great to permit the judge to preside over the case.

Judge’s or Judge’s Family Member’s Economic Interest in the Case. Sometimes a judge or one of his or her immediate family members will have an economic interest in the subject matter of the case, one that could be significantly impacted by the outcome of the proceedings. For example, the judge’s spouse might own a majority interest in a corporate party that is being sued for alleged violation of antitrust laws. In such a circumstance, the judge would have conflicted loyalties and would have a difficult time remaining fair and impartial in his/her rulings.

Procedure for Recusal. When any of the above circumstances are present, the judge may either raise the issue of recusal him/herself or entertain a motion by one of the parties. A judge who determines it is necessary to recuse him/herself will advise the parties and attorneys of the grounds for that determination and will ask the court administrator to reassign the case to a different judge. If the matter is brought to the judge through a party’s motion seeking disqualification, the judge can initially decide the motion him/herself; if the motion is denied, the losing party will typically be permitted to have the motion reheard by the court’s Chief Judge

In the following sample motion, the allegations of bias would be contained in an exhibit.

This sample is for a Florida matter, but can be adapted by inserting the applicable State Statutes.

 

Plaintiff

Case Number: _________________

MOTION TO RECUSE

Now comes the above named, ________________________ and moves to recuse Judge _______________________ from the above entitled matter under 28 USCS Sec. 455, and Marshall v Jerrico Inc., 446 US 238, 242, 100 S.Ct. 1610, 64 L. Ed. 2d 182 (1980).

“The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law.”

The above is applicable to this court by application of Article VI of the United States Constitution and Stone v Powell, 428 US 465, 483 n. 35, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976).

“State courts, like federal courts, have a constitutional obligation to safeguard personal liberties and to uphold federal law.”

Also see Florida citations found at https://www.jimersoncobb.com/blog/2017/10/judicial-disqualification

The above-mentioned Judge has in the past deliberately violated other litigant’s personal liberties and/or has wantonly refused to provide due process and equal protection to all litigants before the court or has behaved in a manner inconsistent with that which is needed for full, fair, impartial hearings.

The petitioner believes it will be impossible to obtain a fair, unbiased ruling from this judge.

The United States Constitution guarantees an unbiased Judge who will always provide litigants with full protection of ALL RIGHTS.   Therefore, Petitioner respectfully demands said judge recuse themselves in light of the evidence attached as Exhibit 1 detailing prior unethical and/or illegal conduct or conduct which gives Petitioner good reason to believe the above Judge cannot hear the above case in a fair and impartial manner.