Wagner v. State

• Decision Date: 03 June 2022
• Docket Number: 2D21-3707
• Citation: 342 So.3d 712
• Parties: John Charles WAGNER, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

342 So.3d 712

John Charles WAGNER, Petitioner,

v.STATE of Florida, Respondent.

No. 2D21-3707

District Court of Appeal of Florida, Second District.

June 3, 2022

Kerry E. Mack and Jacqulyn Mack-Majka, Mack Law Firm Chartered, Englewood, for Petitioner.

Ashley Moody, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Respondent.

PER CURIAM.

John Charles Wagner has filed a petition for writ of prohibition seeking review of the trial court's order denying his motion to disqualify Judge Peter A. Bell from presiding over his criminal trial. Because we find that the commentary in Judge Bell's order denying the motion for disqualification went beyond simply addressing the legal sufficiency of the motion, we grant Wagner's petition.

Wagner filed a motion to disqualify Judge Bell alleging that the judge's extrajudicial activities placed him in fear that he could not receive fair treatment in his DUI case. The motion detailed Judge Bell's participation in a Christian faith-based organization and described what the motion identified as some political and religious statements Judge Bell made during a taped "Sunday Sermon," which included topics such as socialism, no fault divorce, and abortion. Based on these statements, Wagner concluded that he "is objectively fearful this Court is biased and prejudiced against cases like his that involve alcohol."

The court denied the motion as legally insufficient. In doing so, the court stated the following:¹

1. If a Defendant files and serves a legally sufficient motion then the Court's duty is to not dispute any of the factual allegations but rather "to sit silent as a Sphinx on the Nile" Shumpert v. State , 703 So. 2d 1128 (Fla. 2d DCA 1997) and enter an Order of Disqualification. In the instant case the Defendant appears to be proceeding under sub-section (e)(1) which requires the Defendant to "set forth specific and material facts upon which the Judge's impartiality might reasonably be questioned [because] the party reasonably fears that he or she will not receive a fair trial or hearing because of the specifically described prejudice or bias of the Judge." Fla. R. Gen. Prac. And Jud. Admin. 2.330. The Defendant's "fear" must be "objectively reasonable" and not a "subjective fear". Mansfield v. State , 911 So. 2d 1160 (Fla. 2005).

2. It does not appear that the Defendant's fear is objectively reasonable. In Menora v. Illinois High School Association , 527 F. Supp. 632 (1981), Judge Shadur quoted from Commonwealth of Pennsylvania v. Local Union 542, International Union of Operating Engineers , 388 F. Supp. 155 (E.P. Pd. [E.D.Pa.] 1974) :

"Facts must be pled which show that there exists personal bias and prejudice on the part of the trial Judge... [.] Disqualification will be warranted only if such personal bias is shown... [.] The facts pleaded will not suffice to show the personal bias required by the Statute if they go to the background and association of the Judge rather than to his Appraisal of a party personally... [.]"

See alsoBryce v. Episcopal Church in the Diocese of Colorado , 289 F.3d 648 (2002) and the citations therein including Menora (supra).

Just as Judge Shadur made an analogy between Judge Brennan and the N.L.R.B. v. Catholic Bishop of Chicago , 440 U.S. 490, 99 S.Ct. 1818 [1313], 59 L.Ed.[L.Ed.2d] 538 [533] (1979) case, a similar analogy between Catholic Justices (Justice Brennan, Roberts, Thomas, Alito, Sotomayor, Gorsuch, Kavanaugh, and Co[n]ey Barret) and abortion related cases (eg. Akron v. Akron Center for Reproductive Health , 462 U.S. 416[,] 103 S.Ct. 2481 (1983) or Whole Women's Health v. Jackson , 594 U.S. –––– [141 S.Ct. 2494, 210 L.Ed.2d 1014] (2021), [Whole Woman's Health v. Jackson , 594 U.S. ––––, 142 S.Ct. 522, 211 L.Ed.2d 316 (2021)] ) could be made. The Defendant has presented no facts suggesting that the Court has made any statement about him personally, about the charge he is facing or about the law firm he has chosen to substitute in to replace his original attorney. (cf. Suarez v. Dugger , 527 So. 2d 190 (Fla. 1988) ). Based on this analysis Defendant's "fears" are not objectively reasonable.

As an initial matter, we take no issue with the trial court's denial of the motion for disqualification where the allegations of Wagner's motion appear to be legally insufficient.² And had the order only answered the question of legal sufficiency, our inquiry would terminate here. See Shumpert , 703 So. 2d 1128. However, Judge Bell did more than "sit silent as a Sphinx on the Nile" and simply deny the motion as legally insufficient; instead, he made extraneous comments challenging the allegations in the motion as to his religious beliefs and, in supporting his decision to deny as to the merits of the motion, linking the allegation in the motion by analogy to other cases where facts and their intersection with various religious tenets held by judges resulted in critical examination of that interrelation. See id. at 1130 (citing Nassetta v. Kaplan , 557 So. 2d 919, 921 (Fla. 4th DCA 1990) ).

Florida Rule of General Practice and Judicial Administration 2.330(h) states that the court "shall not pass on the truth of the facts alleged [in the motion].... No other reason for denial shall be stated, and an order denying the motion shall not take issue with the motion." See also Blalock v. State , 297 So. 3d 688, 690 (Fla. 1st DCA 2020) ("[W]hen a trial court looks beyond the legal sufficiency of a motion for disqualification and attempts to refute the allegations, it exceeds the proper scope of inquiry and disqualification is required on that basis alone, regardless of the correctness of the denial of the motion as legally insufficient." (citing Bundy v. Rudd , 366 So. 2d 440, 442 (Fla. 1978) )). "When a judge has looked beyond the mere legal sufficiency of a suggestion of prejudice and attempted to refute the charges of partiality, he has then exceeded the proper scope of his inquiry and on that basis alone established grounds for his disqualification." Mackenzie v. Super Kids Bargain Store , 565 So. 2d 1332, 1339 (Fla. 1990) ; see also Rivera-Torres v. Fernandez , 320 So. 3d 996, 996 (Fla. 5th DCA 2021) ("Former Wife petitions for issuance of a writ of prohibition following the denial of her motion to disqualify. Because the trial court went beyond simply finding the motion to be legally insufficient and did so in a manner which addressed the merits of the motion, we grant the relief sought. We trust that the issuance of this opinion will obviate the need for the issuance of a formal writ."); Pilkington v. Pilkington , 182 So. 3d 776, 779 (Fla. 5th DCA 2015) ("If the trial court[ ] comments on the validity or truthfulness of the motion's allegations of bias, prejudice, or partiality, the judge creates an independent ground for disqualification.").

Contrary to the dissent's contention that "the order merely points out that, as alleged, Wagner's motion to disqualify is insufficient because it fails to meet the standard requiring factual assertions supporting bias or prejudice that would give rise to an objectively reasonable fear," Judge Bell chose to cite to specific cases and to make certain analogies that surreptitiously refuted Wagner's allegations of bias, thereby taking issue with the motion. Accordingly, because the order goes beyond ruling on the legal sufficiency of the motion, we grant the petition for writ of prohibition. See Fla. R. Gen. Prac. & Jud. Admin. 2.330(h). The chief judge shall immediately appoint a successor judge pursuant to rule 2.215(b)(4).

Granted.

KELLY and SMITH, JJ., Concur.

ATKINSON, J., Dissents with opinion.

ATKINSON, J., Dissenting.

I respectfully dissent.

The State charged Wagner with misdemeanor DUI in violation of section 316.193, Florida Statutes (2021). Pursuant to Charlotte County Court's internal procedures, Wagner's case was assigned to Judge Peter A. Bell. Wagner retained counsel to represent him in the criminal proceedings below.³

Thereafter, Wagner filed a motion to disqualify Judge Bell. The gravamen of the motion is that Judge Bell's personal religious activities supported a good faith belief that he could not be impartial in Wagner's case. The motion and attached affidavit explained that while searching for Judge Bell's court live-streaming page on the internet website YouTube to ascertain streaming accommodations for her co-counsel, counsel discovered information on the internet about Judge Bell's religious activity "and materials concerning his participation in local politics." According to Wagner, some of these materials indicated the judge's "dislike for" laws allowing divorce and abortion based on his belief that these laws are inconsistent with the Bible. Wagner relied on a YouTube video in which Judge Bell gave a sermon explaining that the Bible taught that the government had been tasked by God with "aveng[ing] evildoers." Wagner alleged that Judge Bell is involved with or part of the leadership of two religious community aid and pro-family legislative networking organizations that Wagner alleges cast doubt on the judge's allegiance to the rule of law and the independence of the judiciary.

Wagner alleged that he feared that Judge Bell's "strongly held Christian faith has made him biased against [d]efendants, including [Wagner], who are charged with alcohol or drug[-]related criminal offenses, are divorced, have terminated a pregnancy[,] or have errant children." Wagner argued that Judge Bell's religious and community activities implicated Canon 3B(9) of the Code of Judicial Conduct.⁴ Wagner's affidavit stated that Judge Bell's religious and community activities "support [Wagner's] strong belief that Judge Bell cannot be fair in my case because it involves alcohol" and that "Judge Bell cannot separate ‘God's judgment’ from his own judgment." Wagner also alleged that he believed that Judge Bell focused on promoting Christianity more than "upholding the Constitution" and...