182 So. 3d 776
Fla. Dist. Ct. App.2015Background
- Arnold D. Pilkington (Petitioner), former trustee of the Pilkington Revocable Trust, was removed as trustee by Judge C. McFerrin Smith, III; that removal was appealed and remains pending.
- On July 10, 2015, Judge Smith made on-the-record comments at a hearing that Pilkington later claimed demonstrated judicial bias and prejudice.
- Pilkington filed a motion to disqualify Judge Smith on September 20, 2015, alleging the July 10 comments and various rulings showed partiality and denial of due process.
- The trial court denied the motion as legally insufficient, untimely, and moot; Judge Smith’s order included a factual statement that Pilkington (and counsel) were present at the July 10 hearing.
- Pilkington petitioned for review; because Judge Smith later retired, the court treated the matter as certiorari review rather than prohibition and found the petition not moot due to potential successor-judge reconsideration.
- The appellate court concluded the motion was legally insufficient but addressed whether the trial judge impermissibly commented on the truth of factual allegations when ruling on the disqualification motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Judge Smith’s July 10 comments showed bias requiring disqualification | Pilkington: comments show predisposition against him and fear he won’t get a fair trial | Respondents: comments were impressions, qualified, and not proof of bias; adverse rulings alone don’t require disqualification | Court: comments were not legally sufficient to show objective fear of bias; disqualification denied |
| Whether the motion to disqualify was timely under Fla. R. Jud. Admin. 2.330(e) | Pilkington: he learned of the comments only when transcript was filed Sept. 9, so filing Sept. 20 was timely | Respondents: rule requires prompt filing; counsel’s presence should charge Petitioner earlier | Court: declined to decide timeliness because motion failed on other grounds |
| Whether adverse judicial rulings justify disqualification | Pilkington: judge’s rulings were "highly questionable" and evidence of bias | Respondents: unfavorable rulings are not, by themselves, grounds for disqualification | Court: adverse rulings without more are insufficient; motion legally insufficient |
| Whether the judge impermissibly refuted factual allegations when ruling on the motion | Pilkington: judge’s order stated Petitioner was present at the hearing (contrary to his allegation), which improperly passed on factual truth | Respondents: judge may explain the record and what transpired | Court: judge made a likely factual mistake but did not attempt to refute charges of bias; factual recital about the record is permissible; no independent ground for disqualification |
Key Cases Cited
- MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332 (Fla. 1990) (legal sufficiency of disqualification motion judged by objective fear standard)
- Shuler v. Green Mountain Ventures, Inc., 791 So.2d 1213 (Fla. 5th DCA 2001) (fear of judicial bias must be objectively reasonable)
- Oates v. State, 619 So.2d 23 (Fla. 4th DCA 1993) (bench comments reflecting impressions are not per se grounds for disqualification)
- Correll v. State, 698 So.2d 522 (Fla. 1997) (adverse rulings alone do not warrant disqualification)
- Rollins v. Baker, 683 So.2d 1138 (Fla. 5th DCA 1996) (judge may not pass on truth of allegations when ruling on disqualification)
- Rolle ex rel. Dabrio v. Birken, 984 So.2d 534 (Fla. 3d DCA 2008) (judge may explain the record; such factual recital is permissible)
- Kowalski v. Boyles, 557 So.2d 885 (Fla. 5th DCA 1990) (factual recital of what occurred at hearing is permissible when ruling on disqualification)