Appellate Update – Fifth District Orders Recusal of Trial Judge Where Plaintiff Attorney was Involved in Judge’s Current and Ongoing Re-Election Campaign

February 12, 2016 by on News

In Rivera v. Bosque, No. 5D15-3755, the defendant, Rivera, moved to disqualify the trial court judge after a series of events leading him to believe that he would not receive a fair trial. First, the trial court denied Rivera’s request for an updated CME, after four years had passed and the plaintiff underwent an additional surgery and was involved in a subsequent automobile accident. Rivera filed a writ of certiorari. While on appeal, the plaintiff withdrew his objection to the CME to escape liability for appellate attorney’s fees. The trial court “sua sponte” vacated the order on appeal. Second, Rivera also was unable to obtain hearing time on any of his motions, while Bosque received hearing time before even filing his motions. Lastly, Rivera learned that one of the Plaintiff’s attorneys was significantly involved with the judge’s current and ongoing reelection campaign and hosted fundraising events on his behalf. The trial court denied Rivera’s motion as legally insufficient.

Rivera filed a petition for writ of prohibition with the Fifth District seeking to disqualify the trial court judge. After the initial opinion issued ordering the trial court judge to recuse himself, the judge appeared in the appeal and contested the facts of the opinion claiming that the Plaintiff’s attorney was not a part of his official reelection campaign.

Even though the Fifth District amended its opinion, it still issued prohibition and ordered the trial court judge to recuse himself. The Court found that the motion was legally sufficient and should have been granted. Rivera demonstrated a reasonable fear that he would not receive a fair trial. The Court focused on the reelection campaign fundraiser flyer attached to the motion showing that the attorney was hosting the event.

The Court explained that relatively limited involvement in a judge’s campaign is not grounds for disqualification. However, where counsel’s involvement is significant in nature and the campaign is current, ongoing or recently concluded, this can serve as grounds for granting a motion to disqualify. The majority opinion found that the Plaintiff’s attorney’s involvement and hosting of fundraising events was considered significant involvement to warrant disqualification.

Judge Cohen wrote a concurring opinion focusing of the totality of the events alleged in the motion and found that the series of events warrant disqualification.

This case demonstrates the importance of providing supporting evidence along with the motion for disqualification and affidavit of the client. In addition, it is also important to set forth all of the grounds which you believe support your motion. For instance, even though the Plaintiff’s attorney’s involvement was the most significant allegation, Rivera also alleged the disparity in the availability to obtain hearing times and the trial court’s sua sponte vacation of the order on appeal.

Both appellate proceedings were handled by the Boyd & Jenerette, PA appellate department.

Kansas R. Gooden
Board Certified Appellate Attorney
Appellate Practice Group Leader
Direct: 904.493.3755
Fax: 904.493.5658


Associate, Loreyn P. Raab, thumbnail
Loreyn P. Raab
Direct: 904.309.6786
Fax: 904.520.7597


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