Opinion
3D23-2138 3D23-2142
03-06-2024
Lloyd P. Brewer, III, Petitioner, v. John Hughes, et al., Respondents.
Luks, Santaniello, Petrillo, Cohen & Peterfriend, and Daniel S. Weinger, Daniel J. Santaniello and Patrick W. Zalman; Jerome A. Ballarotto (Trenton, NJ); Mark W. Catanzaro (Mt. Holly, NJ), for petitioner. Grossman, Roth, Yaffa, Cohen, and Stuart Z. Grossman, William P. Mulligan, Alex Arteaga-Gomez, and Julian J. Catala; Joel S. Perwin, P.A., and Joel S. Perwin, for respondents John Hughes and Lesley Touzalin; Ashley Moody, Attorney General, and Ivy R. Ginsberg, Assistant Attorney General, for respondent The State of Florida.
Not final until disposition of timely filed motion for rehearing.
Cases of Original Jurisdiction - Prohibition. Lower Tribunal Nos. 23-264-K; 23-70-A-K
Luks, Santaniello, Petrillo, Cohen & Peterfriend, and Daniel S. Weinger, Daniel J. Santaniello and Patrick W. Zalman; Jerome A. Ballarotto (Trenton, NJ); Mark W. Catanzaro (Mt. Holly, NJ), for petitioner.
Grossman, Roth, Yaffa, Cohen, and Stuart Z. Grossman, William P. Mulligan, Alex Arteaga-Gomez, and Julian J. Catala; Joel S. Perwin, P.A., and Joel S. Perwin, for respondents John Hughes and Lesley Touzalin; Ashley Moody, Attorney General, and Ivy R. Ginsberg, Assistant Attorney General, for respondent The State of Florida.
Before LINDSEY, GORDO, and LOBREE, JJ.
PER CURIAM.
Before this Court are two petitions for writs of prohibition seeking to disqualify the trial court judge in a criminal matter and a related civil matter. We sua sponte consolidate the petitions. For the reasons set forth below, we grant the petitions.
This Court has original jurisdiction to issue writs of prohibition pursuant to Article V, section 4(b)(3) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(b)(3).
It is well-established that judges may not comment on the merits or otherwise look outside the allegations of bias or prejudice when reviewing an initial motion to disqualify. See Fla. R. Gen. Prac. &Jud. Admin. 2.330(h) ("The judge against whom an initial motion to disqualify . . . is directed may determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged."); see also Messianu v. Pigna, 180 So.3d 229, 230 (Fla. 3d DCA 2015) (holding that the rule governing an initial motion for disqualification "requires the trial court to determine only if the motion is legally sufficient; the trial court may not consider whether the factual assertions of the motion are true") (citing Bundy v. Rudd, 366 So.2d 440, 442 (Fla. 1978)).
The parties do not dispute that the trial judge sought and obtained an opinion from the Judicial Ethics Advisory Committee ("JEAC") to guide his decision on disqualification. The JEAC opinion issued in response to the judge's request contained underlying material facts (provided by the inquiring judge) that contradicted certain allegations contained in the motions to disqualify. By referencing this particular JEAC opinion in a footnote in the denial orders, the trial judge implicitly relied on these additional facts in denying the motions to disqualify.
We commend the trial judge for his laudable efforts in doing so.
Because we are required to view the facts "from the perspective of the petitioner[s]" rather than the trial judge's view of the facts contained in the JEAC opinion, we are compelled to grant both petitions. See JJN FLB, LLC v. CFLB P'ship, LLC, 283 So.3d 922, 925 (Fla. 3d DCA 2019) (quoting Michaud-Berger v. Hurley, 607 So.2d 441, 446 (Fla. 4th DCA 1992)).
Petitions granted.