Pistorino v. Ferguson, 80-688
| Decision Date | 29 July 1980 |
| Docket Number | No. 80-688,80-688 |
| Citation | 386 So.2d 65 |
| Parties | Kathleen M. PISTORINO, Petitioner, v. Ralph B. FERGUSON, Jr., Judge, Respondent. |
| Court | Florida District Court of Appeals |
Richard A. Crisonino, Miami, for petitioner.
Leib, Popper & Mackoul and Rory S. Stein, Miami, for respondent.
Before HUBBART, SCHWARTZ and DANIEL S. PEARSON, JJ.
In this divorce action, the trial judge, at the conclusion of a December 1979 hearing in which he awarded temporary custody of the minor children of the parties to the father, stated to counsel for Kathleen Pistorino:
At the time the statement was made there remained to be later determined issues of child support, alimony, permanent custody, visitation privileges and the like. The next action in the case was taken by John Pistorino in February 1980 when he petitioned the court for permanent custody of the children. On the heels of that petition, Kathleen's counsel perfunctorily and with understandable confidence moved to recuse the trial judge, asserting that by the judge's own admission he could no longer be impartial. Counsel's confidence was misplaced. The trial judge denied the motion to recuse, and Kathleen appealed. 1
It is undisputed that the motion to recuse did not comport with the requirements of Section 38.10, Florida Statutes (1979) it was late; initially, it was unaccompanied by an affidavit and at no time was it supported by corroborating affidavits; and no good faith certificate was filed by counsel. But it is also undisputed that the trial judge made the statement attributed to him. We must decide whether the mother's procedural failure forecloses relief by way of prohibition. 2
We are mindful of cases holding that the failure to follow the dictates of the disqualification statute precludes relief by way of prohibition. E. g., Peebles v. Smith, 291 So.2d 102 (Fla. 1st DCA 1974). Those cases do not involve patent prejudice. Where that exists, courts are quick to provide a remedy even where the statute is not complied with, State v. McFarlane, 318 So.2d 449 (Fla. 2d DCA 1975) (); or not strictly complied with, State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613 (1939) (); State v. Cannon, 163 So.2d 535 (Fla. 3d DCA 1964) (); State v. Cannon, 166 So.2d 625 (Fla. 3d DCA 1964) (). 3
The courts of this state are firmly committed to the proposition that the due process guarantee of a fair trial contains in its core the principle that every litigant is entitled to nothing less than the cold neutrality of an impartial judge. State ex rel. Davis v. Parks, supra ; State v. Steele, 348 So.2d 398 (Fla. 3d DCA 1977). Where the judge is conscious of any bias or prejudice which might influence his official action against any party to the litigation, he should decline to officiate whether challenged or not. McGregor v. Hammock, 101 Fla. 1170, 132 So. 815 (1931); State v. Cannon, 166 So.2d 625 (Fla. 3d DCA 1964). In the present case the trial judge's spontaneous commitment to recuse himself at the option of counsel for the mother is convincing evidence of his own awareness of bias and speaks louder than his subsequent disclaimer, implicit in his denial of the motion to recuse. State ex rel. Davis v. Parks, supra. See also Anderson v. State, 287 So.2d 322 (Fla. 1st DCA 1973).
The mother's failure to meet the statute's requirements is not, in our view, an impediment to relief by way of prohibition. The statute allows a party to bring about the disqualification of a judge on the basis of his belief that he will not receive a fair trial. When the requirements of the statute are met, the necessity of proving that the judge is in fact prejudiced is obviated. But where the record, as here, reflects that the judge is in fact prejudiced, the necessity of utilizing the statute is obviated. 4
Accordingly, we grant the petition for writ of prohibition. We assume it will not be necessary to issue the writ.
1 Thereafter, ...
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...(opinion of Overton, J.); Department of Revenue v. Golder, 322 So.2d 1, 6-7 (Fla.1975) (opinion of England, J.); Pistorino v. Ferguson, 386 So.2d 65, 67 (Fla. 3d DCA 1980). Amici curiae also say that the result we reach here would mandate vicarious disqualification of law firms where a sing......
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Sikes v. Seaboard Coast Line R. Co., AL-488
...patent prejudice exists, "courts are quick to provide a remedy even where the statute is not complied with ...." Pistorino v. Ferguson, 386 So.2d 65, 66 (Fla. 3d DCA 1980). This stems in part from a litigant's constitutional right to a fair trial, id., at 67, which inheres in the Florida Co......
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...We conclude that under the circumstances, the timing of the motion did not preclude its viability. See Pistorino v. Ferguson, 386 So.2d 65, 67 (Fla. 3d DCA 1980); State v. Cannon, 166 So.2d 625 (Fla. 3d DCA 1964) cert. denied, 172 So.2d 597 The certitude of our decision that the motion for ......
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State v. Borrego
...of being biased and of having prejudiced this case. The judge should have declined to officiate any further”); Pistorino v. Ferguson, 386 So.2d 65, 67 (Fla. 3d DCA 1980), stating: The courts of this State are firmly committed to the proposition that the due process guarantee of a fair trial......
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Civil litigation
...1983).] Whether a trial judge is prejudiced or biased is irrelevant to the determination of disqualification. [ Pistorino v. Ferguson , 386 So.2d 65, 67 (Fla. 3d DCA 1980).] The bias must be raised promptly and not later than ten days after the grounds are discovered. [Fla R. Jud. Admin. 23......