Florida Affidavit to Disqualify or Recuse Judge for Prejudice - Recusal or Removal

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Multi-State
Control #:
US-02219BG
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Word; 
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Description

A Judge should disqualify himself or herself in a proceeding where he or she:


" Has a personal bias or prejudice concerning a party;

" Has personal knowledge of disputed evidentiary facts;

" Served as a lawyer in the matter in controversy;

" Practiced law with a lawyer who, during the time of this association, handled the case in question;

" Has been a material witness in the case, or has practiced law with a lawyer who is a material witness;

" Has a financial or other interest in the subject or parties to the proceeding, or a member of his or her immediate family has such an interest;

" Is a party to or a lawyer in the proceeding, or is related to one who is so involved in the proceeding;

" Knows of a relative who has an interest that could be substantially affected by the outcome of the proceeding; or

" Is likely to be a material witness, or is related to one who is likely to be a material witness in proceeding.

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FAQ

455(a). There is, however, an exception to the ordinary recusal requirements, known as ?the rule of necessity,? which allows judges to hear a case in which virtually all other available judges would have the same disqualifying interest, and the case could not otherwise be heard.

A federal statute provides that any federal justice, judge, or magistrate shall recuse ?in any proceeding in which his impartiality might reasonably be ques- tioned,? 28 U.S.C. §455(a), as well as in specific, enumerated circumstances.

The rule of necessity is a judicial doctrine that permits a judge or agency decision maker to decide a case even if he or she would ordinarily be disqualified due to bias or prejudice .

Although there can be some technical differences between the two terms, ?recuse? can usually be used interchangeably with ?disqualify.? When a judge is disqualified or recused from a case, he or she does not participate. In trial courts and some appellate courts, another judge hears it in place of the one who recused.

A motion to disqualify shall set forth all specific and material facts upon which the judge's impartiality might reasonably be questioned, including but not limited to the following circumstances: (1) the party reasonably fears that he or she will not receive a fair trial or hearing because of specifically described ...

A motion to disqualify shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for an immediate ruling.

There is, however, an exception to the ordinary recusal requirements, known as ?the rule of necessity,? which allows judges to hear a case in which virtually all other available judges would have the same disqualifying interest, and the case could not otherwise be heard.

The judge is only required to order recusal (or refer the matter over to another judge to decide whether recusal is necessary) if a reasonable person, knowing all the facts, would have doubts about the judge's ability to be impartial in the case. See State v.

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Florida Affidavit to Disqualify or Recuse Judge for Prejudice - Recusal or Removal