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471 So. 2d 80

471 So.2d 80

10 Fla.L.Weekly 1231

Docket No. 85-739.

Gieseke v. Moriarty

F. Gary GIESEKE, Petitioner, v. The Honorable Estella May MORIARTY, Judge of the 17TH Judicial Circuit in and for Broward County, Florida, Respondent.

District Court of Appeal of Florida

Decided May 15, 1985.

Rehearing or Clarification and Certification Denied July 10, 1985.

District Court of Appeal of Florida · decided 1985-05-15

Key passage — most relied on by later courts

“Regardless of whether respondent ruled correctly in denying the motion for disqualification as legally insufficient, our rules clearly provide, and we have repeatedly held, that a judge who is presented with a motion for his disqualification "shall not pass on the truth of the facts alleged nor adjudicate the question of disqualification." [Citations omitted]. 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. Our disqualification rule, which limits the trial judge to a bare determination of legal sufficiency, was expressly designed to prevent what occurred in this case — the creation of "an intolerable adversary atmosphere" between the trial judge and the litigant.”

quoted by 1 later decision, including Fruehe v. Reasbeck

Relies on Bundy v. Rudd · 396 So. 2d 1169 - Management Corp. of America, Inc. v. Grossman

Good law ✅— No negative treatment on recordhow we know

Decided 1985-05-15

How this case has been cited

Cited by 15 later decisions — most recently June 2002

15 state decisions

70198519902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Lerner & Harris and Robert Wayne Pearce, Fort Lauderdale, for petitioner.

¶2*81 Estella May Moriarty, Fort Lauderdale, in pro. per.

¶3PER CURIAM.

¶4Petitioner seeks a writ of prohibition precluding respondent from presiding in further pending proceedings in: In Re: The Marriage of F. Gary Gieseke, Petitioner v. Haydee Gieseke, Respondent. Seventeenth Judicial Circuit Case No. 78-15622 CU. He alleges that respondent is unwilling to accord him the impartial determination to which he is entitled. Among the asserted grounds for recusal are alleged demonstrations by respondent of hostility toward petitioner's counsel and toward petitioner as well as allegedly unfair adverse legal rulings.

¶5We do not reach the merits of the petition itself in disposing of this matter because in filing her own response to the rule to show cause why relief should not be granted, the trial court undertook to controvert each of the asserted grounds for recusal. In Management Corporation of America v. Grossman,396 So.2d 1169 (Fla. 3d DCA 1981), the court cited Bundy v. Rudd,366 So.2d 440, 442 (Fla. 1978) for the proposition that "[w]hen 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." Bundy and Management Corp. compel us to hold that respondent has assumed the posture of an adversary and has disqualified herself from conducting further proceedings.

¶6We therefore grant the petition for writ of prohibition, confident that it is unnecessary for us to issue the writ, and remand the cause for further proceedings consistent with this opinion.

¶7Prohibition granted.

¶8BASKIN, NATALIE; PEARSON, DANIEL S.; and FERGUSON, WILKIE D., Associate Judges, concur.

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