INITIAL MOTION TO DISQUALIFY AND INCORPORATED MEMORANDUM OF LAW
Respondent, by and through his undersigned attorneys and pursuant to Rule 2.330, Florida Rules of Judicial Administration, hereby files this Verified Initial Motion to Disqualify and Incorporated Memorandum of Law and, in support thereof, states as follows:
1. Rule 2.330, Fla. R. Jud. Admin., allows a party to seek disqualification of the assigned trial judge where the party feels he or she will not receive a fair trial or hearing because of a specifically described prejudice or bias of the judge.
2. Rule 2.330(f), Fla. R. Jud. Admin., provides that, 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.”
3. The principal facts constituting the grounds for this Motion were discovered on November 17, 2021. Thus, the instant Motion is timely filed.
4. This Motion is filed with all due respect to the Court and the judiciary as a whole. Under the circumstances outlined below, counsel has an ethical responsibility as an advocate for Respondent to seek the remedy of disqualification.
5. As an officer of the Court, counsel must seek to uphold the integrity of the judiciary and the judicial process.
6. For the reasons outlined herein, Respondent fears he will not receive a fair hearing because of the Court’s demonstrable prejudice against Respondent and its clear pre-judgment of the case in favor of Petitioner.
FACTUAL BACKGROUND
7. On November 17, 2021, the Hon. Suzanne Bass held a hearing in connection with the Petition for Injunction filed herein.
8. At the outset of the hearing on November 17, 2021, Judge Bass addressed Respondent’s previously filed Motion to Dismiss.
9. The Court summarily denied the Motion, entertaining no meaningful argument and articulating no basis for the denial other than that the Court “disagreed” with counsel’s contentions.
10. Upon summary denial, the Court proceeded to examine the nature of the relief sought by Petitioner in her injunction Petition.
11. After inquiring about previous injunction cases, the Court suggested to Petitioner that she seek a termination of parental timesharing.
14. Prior to the Court’s suggestive comments, Petitioner had made no request for a complete termination of parental time-sharing.
15. In fact, the Petition for Injunction filed herein specifically requested that Respondent have supervised time-sharing.
16. As a direct and immediate result of the Court’s suggestive comments, Petitioner adopted the position of complete termination.
17. The Court then announced, without explanation and without reference to any statutory authority, rule of procedure, due process principle, or factual finding, that the Court was granting the Petition for Injunction.
18. The Court thereafter directed the clerk to prepare an order that would enjoin respondent from seeing or communicating with his children for a period of at least one year.
19. At that time, no substantive evidence had been introduced, no hearing had been held, no testimony had been offered or heard, no cross-examination had been allowed, no argument was permitted, no objections were entertained, and no inquiry was made whatsoever of either party concerning the merits of the allegations.
20. The Court made no factual findings at all, and the only discussion of any fact at issue during the November 17, 2021 proceeding was commentary by the Court that the Petition at bar was about “the [masking] tape,” and “what [Respondent] did with the tape.”
21. In response to the Court’s actions, the undersigned objected to preserve an appeal, reminding the Court that Respondent was entitled to an evidentiary hearing and that no evidence had been presented to support any ruling or judgment.
22. The Court then reversed its position, withdrew the proposed injunction order it had announced and suggested to Petitioner, and, despite having already decided an outcome for the case without evidence or adherence to fundamental procedural rules or due process, scheduled the matter for a “hearing” on December 8, 2021.
23. The instant Motion followed.
24. No prior recusal or disqualification has been requested or granted in this cause.
MEMORANDUM OF LAW
25. Rule 2.330, Fla. R. Jud. Admin., 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), Fla. R. Jud. Admin. provides that, 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.”
26. Prejudice of a judge is a delicate question to raise, but when raised as a bar to the trial of a cause, if predicated on grounds with a modicum of reason, the judge against whom raised should be prompt to recuse himself.” Livingston v. State, 441 So. 2d 1083, 1085 (emphasis added).
27. Where there is any legally sufficient basis, whether factually accurate or not, for a founded fear of possible prejudice to exist in the mind of a defendant, recusal is mandated. Management Corporation of America, Inc. v. Grossman, 396 So. 2d 1169 (Fla. 3rd DCA 1981).
28. A motion to disqualify a judge must establish a fear on the part of the movant that he or she will not receive a fair and impartial hearing. Quince v. State, 592 So. 2d 669, 670 (Fla. 1992). The motion “must be well-founded and contain facts germane to the judge’s undue bias, prejudice, or sympathy.” Rivera v. State, 717 So. 2d 477, 480-81 (Fla. 1998).
29. In determining the legal sufficiency of a motion to disqualify, a court looks to see whether the facts alleged would place a reasonably prudent person in fear of not receiving fair and impartial treatment from the trial judge. Peterson v. Asklipious, 833 So. 2d 262, 263-64 (Fla. 4th DCA 2002); Johnson v. State, 769 So. 2d 990 (Fla. 2000); Hayslip v. Douglas, 400 So. 2d 553, 556 (Fla. 4th DCA 1981).
30. The inquiry into disqualification is based on whether the litigant may reasonably question a judge’s impartiality, not on whether the presiding judge believes that he or she has the ability to act fairly and impartially. Chastine v. Broome, 629 So. 2d 293, 294 (Fla. 4th DCA 1993) (citing Livingston v. State, 441 So.2d 1083, 1086 (Fla. 1983)).
31. The fear of judicial bias must be objectively reasonable. State v. Shaw, 643 So. 2d 1163, 1164 (Fla. 4th DCA 1994).
32. Although a judge may form mental impressions during a proceeding, prejudgment of an issue is not permitted. Leslie v. Leslie, 840 So. 2d 1097 (Fla. 4th DCA 2003); State v. Ballard, 956 So. 2d 470 (Fla. 2d DCA 2007).
33. Disqualification is required when judicial comments are made about matters not yet before the court, or prior to an evidentiary presentation. Kates v. Seidenman, 881 So. 2d 56 (Fla. 4th DCA 2004) (issues not before court at temporary relief hearing); Williams v. Balch, 897 So. 2d 498 (Fla. 4th DCA 2005) (predisposition before considering evidence); Peterson v. Asklipious, 833 So. 2d 262, 263-64 (Fla. 4th DCA 2002) (ruling, prior to testimony, on a matter pending before the court).
34. Disqualification is further required when judges become advocates for litigants, or otherwise actively participate in the adversarial process. Chastine v. Broome, 629 So. 2d 293, 294 (Fla. 4th DCA 1993). This includes giving suggestions or ‘tips’ to either side. Id.
35. When the judge enters into the proceedings and becomes a participant, a shadow is cast upon judicial neutrality so that disqualification is required. Broome, 629 So. 2d at 295; Wayland v. Wayland, 595 So. 2d 234, 235 (Fla. 3d DCA 1992) (citing Crosby v. State, 97 So. 2d 181 (Fla. 1957)).
36. The Florida Code of Judicial Conduct further governs the obligations of a court in ruling on an issue of disqualification. Livingston v. State, 441 So. 2d 1083, 1086 (Fla. 1983).
37. The Code of Judicial Conduct, Canon 3(B)(5), provides, in pertinent part, that “[a] judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice . . .”
38. Canon 3(B)(10), provides, in pertinent part, that “[a] judge shall not, with respect to parties or classes of parties, cases, controversies or issues likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.”
39. Canon 3(E) provides, in pertinent part, that “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where . . . (a) the judge has a personal bias or prejudice concerning a party or party’s lawyer . . .”
APPLICATION TO THE PRESENT CASE
40. The conduct of the Court in the instant case establishes a reasonable and objective fear on part of Respondent that he will not receive a fair and impartial hearing.
41. The Court’s ruling on the merits in favor of Petitioner lacked any legal, evidentiary, or procedural basis, and demonstrates a clear bias or prejudice against Respondent inasmuch as the Court expressed its intention to grant the subject Petition before the case was even at issue and before any evidence had been presented, admitted, or considered.
42. No hearing was held, no substantive evidence was offered, no substantive testimony was taken, no cross-examination was permitted, no argument was permitted, no burden of proof or standard of proof had been met or found, and no factual findings were made to justify any Court action on the merits of the subject Petition.
43. These actions were in total derogation of applicable statutes, rules of procedure, rules of evidence, and basic constitutional due process to the detriment of Respondent and to the benefit of Petitioner.
44. By summarily granting the subject Petition, the Court expressed unequivocally that it wished to rule in Petitioner’s favor and resort to the extraordinary measure of taking away a man’s children even in the complete absence of evidence and the complete absence of basic procedural due process.
45. The Court also unfairly denied any opportunity for Respondent to be heard on the substance of the injunction order announced by the Court. The Court summarily terminated all rights of a father to see or communicate with his children without even entertaining argument on less restrictive measures or the best interests of the children.
46. The Court’s demonstrated bias and undeniable case prejudgment are not remedied by the fact that the Court later reversed its position, withdrew the announced order, and set the instant case for a hearing on December 8, 2021.
47. The reversal appeared to only take place as a result of the undersigned establishing a record for appeal and raising concerns about the nature of what had just transpired.
48. The scheduling of a subsequent hearing for December 8, 2021 does not remedy the concerns of Respondent regarding bias, prejudice, and favoritism because the extraordinary actions of the Court on November 17, 2021 continues to place impartiality into objective question.
49. Respectfully, the actions taken by the Court in this matter were tantamount to a criminal trial judge, at arraignment with defense counsel present, summarily adjudging guilt of a defendant based solely on an arrest report and then pronouncing sentence in the complete absence of any evidence, factual findings, trial, or hearing.
50. The undersigned further submits that the Court’s suggestive comments to Petitioner regarding the scope of injunction remedies to be sought was also inappropriate and indicative of bias and prejudice against Respondent and favoritism towards Petitioner.
51. The suggestive commentary placed the Court into a position of an apparent advocate for Petitioner, and directly resulted in Petitioner seeking relief beyond that even requested in the Petition filed herein.
52. Lastly, Respondent has an objectively reasonable and founded fear of possible prejudice in the Court’s descriptions of the Petitioner’s allegations. On multiple occasions, the Court referred to the allegations in what appeared to be language of objective and accepted fact. The Court commented, for example, that the proceedings or Petition were about “the tape” and what “[Respondent] did with the tape.”
53. This language, along with the complete absence of more qualified verbiage recognizing the distinction between fact and allegation, is problematic, as it gives the appearance that the Court had chosen sides and decided facts prior to hearing and presentation of evidence.
WHEREFORE, Respondent respectfully requests that this Honorable Court enter an Order of Recusal. In the event the Court denies the instant Motion, Respondent respectfully requests that the Court enter an Order continuing the proceedings previously scheduled for December 8, 2021 in order to permit the filing of a Petition for Writ of Prohibition with the First District Court of Appeal.
HUSSEIN & WEBBER, P.L.
/s/ Troy J. Webber
Troy J. Webber
Florida Bar No. 79105
CERTIFICATE OF COUNSEL
The undersigned counsel does hereby certify that the instant Motion and Respondent’s statements are made in good faith. Pursuant to Rule 2.330(c), Florida Rules of Judicial Administration, this Motion is in writing, alleges specifically the facts and reasons upon which the Respondent relies as the grounds for disqualification, is sworn to under oath and notarized by Respondent, and states that there were no prior motions to recuse or disqualify filed, and that this is the initial motion herein to recuse or disqualify the Honorable Suzanne Bass.
HUSSEIN & WEBBER, P.L.
/s/ Troy J. Webber
Troy J. Webber
Florida Bar No. 79105
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, pursuant to Rule 1.080, Florida Rules of Civil Procedure, a true and correct copy of the foregoing has been furnished to the Hon. Suzanne Bass via U.S. mail or Email on or about November 19, 2021.
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to Petitioner, Rachel Cribb, 7925 Merrill Road, Apt. 1416, Jacksonville, Florida 32277, U.S. mail on or about this 19th day of November, 2021.
HUSSEIN & WEBBER, P.L.
/s/ Troy J. Webber
Troy J. Webber
Florida Bar No. 79105
Attorneys for Respondent