DISQUALIFICATION
OF A JUDGE
By K. Dean Kantaras and Roberta Blush
C ircumstances sometimes arise
where a party may seek to remove
the trial court judge presiding
over his or her case. Seeking
the disqualification of a trial court judge
is appropriate when a party has a wellgrounded
fear that he or she will not receive
a fair trial or hearing. Both Florida Statute
Chapter 38 and Florida Rule of Judicial
Administration govern the disqualification
of a trial court judge. Pursuant to Florida
Rule of Judicial Administration 2.330, a
judge against whom a motion to disqualify
is directed must only consider whether
such motion meets the requirements as
prescribed by the rule: (1) the motion
must be in writing; (2) the motion must
state specific facts and reasons for the
requested disqualification; (3) the motion
must be sworn to under oath by the party
requesting the disqualification; and (4) the
motion must include a certification by the
attorney of record that it is being brought
in good faith. If the motion to disqualify
meets these requirements, the trial court
judge is required to immediately enter
an order granting disqualification and
must not proceed further in the case. On
the contrary, if the motion to disqualify
does not meet the requirements of Florida
Rule of Judicial Administration 2.330, the
trial court must enter an order denying
the motion immediately. It is error for a
trial court to describe the issues with the
motion in the body of the order denying
the motion to disqualify.
It is important to note that a motion
to disqualify will be deemed legally
insufficient without describing with
specificity the prejudice or bias of the trial
court judge that has led the party to fear
that he or she will not receive a fair trial or
hearing. This means it is critical to include
any and all facts, with as much detail as
possible, to substantiate the party’s fear
that he or she will not receive a fair trial
before the judge. Dates of hearings and
direct citations to hearing transcripts and
LAARWT
K. Dean Kantaras, Esq.
142 TAMPA BAY MAGAZINE | JULY/AUGUST 2019
When a motion to disqualify the trial
court judge is erroneously denied, a writ
of prohibition is the proper procedural
vehicle to use to appeal such ruling. In such
case, a writ of prohibition is designed to
restrain the trial court judge from further
presiding over the case. When an appellate
court receives a writ of prohibition, it
may enter an order to show cause, which
prevents the trial court from conducting
further action in the case until the appellate
court determines the writ of prohibition.
A motion to disqualify must be filed
within a reasonable time, but no later than
ten days after the discovery of the facts
used to support the motion to disqualify.
It is crucial to the success of the motion
that the party include specific facts to
substantiate that the motion is being
timely filed.
Whether represented or not, all litigants
should carefully consider the filing of a
motion to disqualify and how it can affect
a case moving forward. Unrepresented
litigants specifically should proceed with
caution. Not every set of facts result in
the successful disqualification of a trial
court judge. Such a determination should
always be made after consulting with an
attorney who has experience appearing
before the trial court judge subject to the
disqualification. 9
EDITOR’S NOTE: K. Dean Kantaras is
the managing partner of K. Dean Kantaras,
P.A., a firm handling cases in family law and
immigration. Mr. Kantaras is board certified
in marital and family law by the Florida Bar.
He has been practicing for over 25 years
and is “AV” rated by Martindale-Hubbell.
Roberta “Bobbi” Blush is a graduate of the
University of Florida and Florida Coastal
School of Law, who was admitted to the
Florida Bar in 2014. Their offices are located
at 3531 Alternate 19, Palm Harbor, 34683,
(727) 781-0000 and 1930 East Bay Drive,
Largo, 33771, kantaraslaw.com.
orders should be specifically referenced
in the motion. Transcripts of hearings and
previous orders can and should be attached
as exhibits to a motion to disqualify.
A trial court judge, when determining
the legal sufficiency of a motion to
disqualify, is required to determine
whether the alleged facts would create
in a reasonably prudent person a wellfounded
fear of not receiving a fair and
impartial trial. The trial court judge must
assume all of the factual allegations in
the motion are true, and cannot deny
the allegations as untrue, reject them, or
comment upon them in any way. The trial
court judge must review the motion from
the litigant’s perspective and not from the
trial court judge’s perspective. Simply, it is
not a question of how the judge feels, but
a question of what feelings resides in the
party’s mind and the basis for his or her
feeling that he or she will not receive a fair
trial or hearing before the trial court judge
in light of the specific facts and allegations
presented in the motion.