In the case of Martinez v. John Kramer and J. Alan Smith, 38 FLW D744(Fla. 4th DCA 2013), Ms. Martinez filed a motion to recuse the Judge presiding over her case. For some reason she didn’t think the Judge would give her a fair hearing just because the Judge kicked her out of the court room and said to her, “your entire demeanor…” (including but not limited to) “Your face, your voice your sound, maybe unpleasant to everyone else” save the ward. (A separate room in a hospital away from everyone else.) The Judge denied her motion to be recused, even though it was so unpleasant to have her around. The Appellate Court overruled the denial when they heard that as Martinez was being “escorted” out of the court room, the Court played the song, “I hate everything about you,” by the band, Three Days Grace.



38 Fla. L. Weekly D744a

 Judges — Disqualification — Judge’s acts of ejecting plaintiff from courtroom, striking her testimony based on perceived insult to judge, and commenting on plaintiff’s demeanor, including comment that “her face, her voice, her sound, maybe unpleasant to everyone else,” save the ward, would lead reasonably prudent person to fear that she would not receive fair hearing before judge — Prohibition granted

GLENDA MARTINEZ, Petitioner, v. JOHN CRAMER and J. ALAN SMITH, Respondents. 4th District. Case No. 4D13-368. April 3, 2013. Petition for writ of prohibition to the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Martin H. Colin, Judge; L.T. Case No. 502010GA000023XXXXSB. Counsel: Robin Bresky of Law Offices of Robin Bresky, Boca Raton, for petitioner. Ellen S. Morris of Elder Law Associates PA, Boca Raton, for respondent John Cramer. (Per Curiam.) Petitioner, Glenda Martinez, petitions for writ of prohibition to prevent the trial judge from presiding over further proceedings in the guardianship of the petitioner’s spouse, for whom she is the designated healthcare surrogate. We grant the petition. The substantive test for whether a motion to disqualify is legally sufficient is “whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial.” Santisteban v. State, 72 So. 3d 187, 193 (Fla. 4th DCA 2011). “It is not a question of what the judge feels, but the feeling in the mind of the party seeking to disqualify and the basis for that feeling.” Corie v. City of Riviera Beach, 954 So. 2d 68, 70 (Fla. 4th DCA 2007). It must, however, be objectively reasonable. Foy v. State, 818 So. 2d 704, 706 (Fla. 5th DCA 2002). The reasons for disqualification must also show personal bias or prejudice to the litigant. Levine v. State, 650 So. 2d 666, 667 (Fla. 4th DCA 1995). We have reviewed the verified motion and the transcript of proceedings on which the motion was based. We conclude that the judge’s acts of ejecting petitioner from the courtroom, later striking her testimony on the basis of a perceived insult to him, and his comment that petitioner’s entire demeanor, including that “her face, her voice, her sound, maybe unpleasant to everyone else,” save the ward, would lead any reasonably prudent person to fear that she would not receive a fair hearing before the judge. See, e.g., Colarusso v. Colarusso, 20 So. 3d 985, 986 (Fla. 3d DCA 2009). Although respondent contends that a judge’s comments in the course of attempting to control the courtroom are ordinarily not legally sufficient to require disqualification, see Braddy v. State, 37 Fla. L. Weekly S703, S709 (Fla. Nov. 15, 2012), we conclude that the judge’s actions as well as his personal comments about petitioner, when taken in combination, far exceeded comments or actions necessary to control his courtroom and were sufficient to evidence to a reasonable person bias requiring disqualification, even if the judge may have felt that he had no bias. Therefore, we grant the petition but withhold the formal issuance of the writ, as we are sure that the trial judge will act in conformance with this opinion and remit his disqualification so that the matter may be assigned to a different judge. (May, C.J., Warner and Conner, JJ., concur.)

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