Motion To Disqualify A Judge – Is Setting A Foreclosure Trial Violating The Court’s Neutrality?

Motion To Disqualify A Judge – Is Setting A Foreclosure Trial Violating The Court’s Neutrality?
By: Matthew Wiedner

Courts all across this State of Florida have set themselves into the role of prosecuting cases for Plaintiffs.  If a case has not been “moving toward resolution”, the court will in fact move that case toward trial and resolution for that Plaintiff.  In many cases, the Plaintiff is more than willing to let the case sit idly by, but the court is moving them forward.

As you read below, the test for disqualification is whether the consumer feels the court is not impartial and reasonable people could definitely articulate this belief….especially when the act of trial setting is combined with other unfair procedures…

E. Disqualification

(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned….

Both Canons 2A and 3E(1) require a judge to protect the integrity and impartiality of the judiciary. In Canon 2A, a judge must consider whether any act he or she takes promotes public confidence in the integrity and impartiality of the judiciary. Similarly, Canon 3E(1) requires a judge to recuse when his or her impartiality might reasonably be questioned.

An independent judiciary is essential for our society. The judiciary cannot function without the trust and confidence of the public in the integrity and independence of its judges. Violations of the Arkansas Code of Judicial Conduct cause the public to lose confidence and trust in the judiciary.

The commentary to a statute is not controlling over the statute’s clear language, but is a highly persuasive aid to construing that statute. McGrew v. State, 338 Ark. 30, 991 S.W.2d 588 (1999). The same is true with respect to the judicial canons. The commentary to Canon 2A provides in part as follows:

Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

* * *

The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.

The commentary to Canon 3E(1) provides:

Under this rule a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless whether any of the specific rules in section 3E(1) apply….

A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.

In a case where a judge and his or her spouse have an economic interest in a party litigant, the first question the judge should consider is whether that economic interest would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired. The judge should disclose on the record the judge’s and his or her spouse’s economic interest in the party litigant. If the answer to the question is “yes,” the judge should recuse, and one need not consider whether the economic interest in the party litigant was de minimis or not.

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