Opinion
No. 2D21-3707
06-03-2022
John Charles WAGNER, Petitioner, v. STATE of Florida, Respondent.
Kerry E. Mack and Jacqulyn Mack-Majka, Mack Law Firm Chartered, Englewood, for Petitioner. Ashley Moody, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Respondent.
Kerry E. Mack and Jacqulyn Mack-Majka, Mack Law Firm Chartered, Englewood, for Petitioner.
Ashley Moody, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Respondent.
PER CURIAM.
John Charles Wagner has filed a petition for writ of prohibition seeking review of the trial court's order denying his motion to disqualify Judge Peter A. Bell from presiding over his criminal trial. Because we find that the commentary in Judge Bell's order denying the motion for disqualification went beyond simply addressing the legal sufficiency of the motion, we grant Wagner's petition.
Wagner filed a motion to disqualify Judge Bell alleging that the judge's extrajudicial activities placed him in fear that he could not receive fair treatment in his DUI case. The motion detailed Judge Bell's participation in a Christian faith-based organization and described what the motion identified as some political and religious statements Judge Bell made during a taped "Sunday Sermon," which included topics such as socialism, no fault divorce, and abortion. Based on these statements, Wagner concluded that he "is objectively fearful this Court is biased and prejudiced against cases like his that involve alcohol."
The court denied the motion as legally insufficient. In doing so, the court stated the following:
The errors in citation format, spelling, and sentence structure are left intact within this block quote from the trial court's order.
1. If a Defendant files and serves a legally sufficient motion then the Court's duty is to not dispute any of the factual allegations but rather "to sit silent as a Sphinx on the Nile" Shumpert v. State , 703 So. 2d 1128 (Fla. 2d DCA 1997) and enter an Order of Disqualification. In the instant case the Defendant appears to be proceeding under sub-section (e)(1) which requires the Defendant to "set forth specific and material facts upon which the Judge's impartiality might reasonably be questioned [because] the party reasonably fears that he or she will not receive a fair trial or hearing because of the specifically described prejudice or bias of the Judge." Fla. R. Gen. Prac. And Jud. Admin. 2.330. The Defendant's "fear" must be "objectively reasonable" and not a "subjective fear". Mansfield v. State , 911 So. 2d 1160 (Fla. 2005).
2. It does not appear that the Defendant's fear is objectively reasonable. In Menora v. Illinois High School Association , 527 F. Supp. 632 (1981), Judge Shadur quoted from Commonwealth of Pennsylvania v. Local Union 542, International Union of Operating Engineers , 388 F. Supp. 155 (E.P. Pd. [E.D.Pa.] 1974) :
"Facts must be pled which show that there exists personal bias and prejudice on the part of the trial Judge... [.] Disqualification will be warranted only if such personal bias is shown... [.] The facts pleaded will not suffice to show the personal bias required by the Statute if they go to the background and association of the Judge rather than to his Appraisal of a party personally... [.]"
See also Bryce v. Episcopal Church in the Diocese of Colorado , 289 F.3d 648 (2002) and the citations therein including Menora (supra).
Just as Judge Shadur made an analogy between Judge Brennan and the N.L.R.B. v. Catholic Bishop of Chicago , 440 U.S. 490, 99 S.Ct. 1818 [1313], 59 L.Ed.[L.Ed.2d] 538 [533] (1979) case, a similar analogy between Catholic Justices (Justice Brennan, Roberts, Thomas, Alito, Sotomayor, Gorsuch, Kavanaugh, and Co[n]ey Barret) and abortion related cases (eg. Akron v. Akron Center for Reproductive Health , 462 U.S. 416[,] 103 S.Ct. 2481 (1983) or Whole Women's Health v. Jackson , 594 U.S. –––– [141 S.Ct. 2494, 210 L.Ed.2d 1014] (2021), [Whole Woman's Health v. Jackson , 594 U.S. ––––, 142 S.Ct. 522, 211 L.Ed.2d 316 (2021)] ) could be made. The Defendant has presented no facts suggesting that the Court has made any statement about him personally, about the charge he is facing or about the law firm he has chosen to substitute in to replace his original attorney. (cf. Suarez v. Dugger , 527 So. 2d 190 (Fla. 1988) ). Based on this analysis Defendant's "fears" are not objectively reasonable.
As an initial matter, we take no issue with the trial court's denial of the motion for disqualification where the allegations of Wagner's motion appear to be legally insufficient. And had the order only answered the question of legal sufficiency, our inquiry would terminate here. See Shumpert , 703 So. 2d 1128. However, Judge Bell did more than "sit silent as a Sphinx on the Nile" and simply deny the motion as legally insufficient; instead, he made extraneous comments challenging the allegations in the motion as to his religious beliefs and, in supporting his decision to deny as to the merits of the motion, linking the allegation in the motion by analogy to other cases where facts and their intersection with various religious tenets held by judges resulted in critical examination of that interrelation. See id. at 1130 (citing Nassetta v. Kaplan , 557 So. 2d 919, 921 (Fla. 4th DCA 1990) ).
Nor should this opinion be construed as opining in any way that a judge's religious practices are an objectively reasonable basis for disqualification.
Florida Rule of General Practice and Judicial Administration 2.330(h) states that the court "shall not pass on the truth of the facts alleged [in the motion].... No other reason for denial shall be stated, and an order denying the motion shall not take issue with the motion." See also Blalock v. State , 297 So. 3d 688, 690 (Fla. 1st DCA 2020) ("[W]hen a trial court looks beyond the legal sufficiency of a motion for disqualification and attempts to refute the allegations, it exceeds the proper scope of inquiry and disqualification is required on that basis alone, regardless of the correctness of the denial of the motion as legally insufficient." (citing Bundy v. Rudd , 366 So. 2d 440, 442 (Fla. 1978) )). "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." Mackenzie v. Super Kids Bargain Store , 565 So. 2d 1332, 1339 (Fla. 1990) ; see also Rivera-Torres v. Fernandez , 320 So. 3d 996, 996 (Fla. 5th DCA 2021) ("Former Wife petitions for issuance of a writ of prohibition following the denial of her motion to disqualify. Because the trial court went beyond simply finding the motion to be legally insufficient and did so in a manner which addressed the merits of the motion, we grant the relief sought. We trust that the issuance of this opinion will obviate the need for the issuance of a formal writ."); Pilkington v. Pilkington , 182 So. 3d 776, 779 (Fla. 5th DCA 2015) ("If the trial court[ ] comments on the validity or truthfulness of the motion's allegations of bias, prejudice, or partiality, the judge creates an independent ground for disqualification.").
Contrary to the dissent's contention that "the order merely points out that, as alleged, Wagner's motion to disqualify is insufficient because it fails to meet the standard requiring factual assertions supporting bias or prejudice that would give rise to an objectively reasonable fear," Judge Bell chose to cite to specific cases and to make certain analogies that surreptitiously refuted Wagner's allegations of bias, thereby taking issue with the motion. Accordingly, because the order goes beyond ruling on the legal sufficiency of the motion, we grant the petition for writ of prohibition. See Fla. R. Gen. Prac. & Jud. Admin. 2.330(h). The chief judge shall immediately appoint a successor judge pursuant to rule 2.215(b)(4).
Granted.
KELLY and SMITH, JJ., Concur.
ATKINSON, J., Dissents with opinion.
ATKINSON, J., Dissenting.
I respectfully dissent.
The State charged Wagner with misdemeanor DUI in violation of section 316.193, Florida Statutes (2021). Pursuant to Charlotte County Court's internal procedures, Wagner's case was assigned to Judge Peter A. Bell. Wagner retained counsel to represent him in the criminal proceedings below.
The same counsel represents Wagner in this original proceeding.
Thereafter, Wagner filed a motion to disqualify Judge Bell. The gravamen of the motion is that Judge Bell's personal religious activities supported a good faith belief that he could not be impartial in Wagner's case. The motion and attached affidavit explained that while searching for Judge Bell's court live-streaming page on the internet website YouTube to ascertain streaming accommodations for her co-counsel, counsel discovered information on the internet about Judge Bell's religious activity "and materials concerning his participation in local politics." According to Wagner, some of these materials indicated the judge's "dislike for" laws allowing divorce and abortion based on his belief that these laws are inconsistent with the Bible. Wagner relied on a YouTube video in which Judge Bell gave a sermon explaining that the Bible taught that the government had been tasked by God with "aveng[ing] evildoers." Wagner alleged that Judge Bell is involved with or part of the leadership of two religious community aid and pro-family legislative networking organizations that Wagner alleges cast doubt on the judge's allegiance to the rule of law and the independence of the judiciary.
Wagner alleged that he feared that Judge Bell's "strongly held Christian faith has made him biased against [d]efendants, including [Wagner], who are charged with alcohol or drug[-]related criminal offenses, are divorced, have terminated a pregnancy[,] or have errant children." Wagner argued that Judge Bell's religious and community activities implicated Canon 3B(9) of the Code of Judicial Conduct. Wagner's affidavit stated that Judge Bell's religious and community activities "support [Wagner's] strong belief that Judge Bell cannot be fair in my case because it involves alcohol" and that "Judge Bell cannot separate ‘God's judgment’ from his own judgment." Wagner also alleged that he believed that Judge Bell focused on promoting Christianity more than "upholding the Constitution" and feared that the judge's "focus is not being a fair and impartial judge but instead he appears more concerned with what Jesus would do."
"A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing." Fla. Code Jud. Conduct, Canon 3B(9). It is unnecessary to opine on the merits of Wagner's assertion that this canon was violated because even if it was, it would not be dispositive of the question of disqualification. See Dabbs v. State , 330 So. 3d 50, 56–57 (Fla. 4th DCA 2021) (holding that the trial court's remarks were sufficient to violate the Code of Judicial Conduct but concluding that the violations were insufficient to warrant disqualification of the trial judge).
Wagner also argued that Judge Bell should be disqualified based on his past admitted violations of other Canons of the Code of Judicial Conduct, see In re Bell , 23 So. 3d 81 (Fla. 2009), and this court's conclusions in prior opinions that Judge Bell had exceeded the scope of his authority in indirect contempt proceedings. See Moyers v. State , 127 So. 3d 827, 828 (Fla. 2d DCA 2013) ; Sockwell v. State , 123 So. 3d 585, 591–92 (Fla. 2d DCA 2012). But see Fla. R. Gen. Prac. & Jud. Admin. 2.330(g) (requiring that a motion to disqualify be filed within "20 days after discovery by the party or party's counsel, whichever is earlier, of the facts constituting the grounds for the motion"). Wagner argued that these past errors along with Judge Bell's present religious and community activities were sufficient to create an objective fear of bias and prejudice against Wagner in a case that involves alcohol.
The trial court denied Wagner's motion as legally insufficient based on its conclusion that the allegations did not establish that Wagner's expressed fear that he would not receive a fair trial was objectively reasonable:
It does not appear that the Defendant's fear is objectively reasonable.... The Defendant has presented no facts suggesting that the Court has made any statement about him personally, about the charge he is facing or about the law firm he has chosen .... Based on this analysis[,] Defendant's "fears" are not objectively reasonable.
(Citations omitted). In support of its ruling, the trial court cited Florida cases and also referenced federal cases explaining that the facts pled in a motion for recusal must reveal the existence of a personal bias. See Menora v. Ill. High Sch. Ass'n , 527 F. Supp. 632 (1981) (quoting Pennsylvania v. Local Union 542, Int'l Union of Operating Eng'rs , 388 F. Supp. 155 (E.D. Pa. 1974) ); Bryce v. Episcopal Church in the Diocese of Colo. , 289 F.3d 648 (2002).
The allegations in Wagner's motion and affidavit regarding Judge Bell's involvement in religious and political organizations and general religious beliefs do not meet the standard for disqualification. See Arbelaez v. State , 775 So. 2d 909, 916 (Fla. 2000) ("As to the claims of bias and prejudice, there was nothing in Arbelaez's allegations to show that [the trial judge] had a personal bias or prejudice against him. Neither her ‘tough-on-crime’ stance nor her former employment as a prosecutor was legally sufficient for disqualification."); Rodgers v. State , 948 So. 2d 655, 673 (Fla. 2006) ("Rodgers's motion did not allege facts sufficient to demonstrate that [the trial judge] had a specific or personal bias against him. The judge's alleged desire to solve the problem of domestic violence is not a legally sufficient basis for his disqualification.").
Section 38.10, Florida Statutes (2021), provides parties with the right to seek disqualification of a judge based on "fear that [a party] will not receive a fair trial in the court where the suit is pending on account of the prejudice of the judge of that court against the applicant or in favor of the adverse party." Florida Rule of General Practice and Judicial Administration 2.330 governs the procedures for disqualification and requires that a motion to disqualify "set forth all specific and material facts upon which the judge's impartiality might reasonably be questioned" including that "the party reasonably fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge." Fla. R. Gen. Prac. & Jud. Admin. 2.330(c)(2)(e).
Wagner did not allege any facts supporting a conclusion that "a reasonably prudent person [would be placed] in fear of not receiving a fair and impartial trial" and that Judge Bell had a "personal bias or prejudice" against Wagner. See Martinez v. Cramer , 111 So. 3d 206, 207 (Fla. 4th DCA 2013) ; see also Rodgers , 948 So. 2d at 673 ("Rodgers's motion did not allege facts sufficient to demonstrate that [the trial judge] had a specific or personal bias against him."); cf. Dabbs v. State , 330 So. 3d 50, 55 (Fla. 4th DCA 2021) (affirming the denial of a motion to disqualify and recognizing a distinction between "personal bias" against a defendant or category of defendants and "judicial bias," the latter of which is "based upon the judge's feelings regarding a certain legal principle or a court opinion" and "is almost never legally sufficient for disqualification"). None of the factual allegations even supported a general predisposition about all alcohol-related cases that would indicate a personal bias or prejudice against Wagner as a defendant charged with DUI. See Arbelaez v. State , 898 So. 2d 25, 41 (Fla. 2005) ("[T]he comment did not, on its face, evince a predisposition about all capital cases or show a personal bias or prejudice against Arbelaez simply because he was a capital defendant.").
In his petition, Wagner does not address the merits of the trial court's determination that the allegations were insufficient. Instead, he focuses on the existence of an independent basis for disqualifying Judge Bell.
Rule 2.330(h) provides that
[t]he 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.... No other reason for denial shall be stated, and an order of denial shall not take issue with the motion.
"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." Bundy v. Rudd , 366 So. 2d 440, 442 (Fla. 1978) (explaining that the disqualification rule was designed to prevent "the creation of ‘an intolerable adversary atmosphere’ between the trial judge and the litigant" (quoting Dep't of Revenue v. Golder , 322 So. 2d 1, 7 (Fla. 1975) )).
Notably, Bundy , the seminal case discussing independent basis for disqualification, was based on a prior version of the disqualification rule, the former Florida Rule of Criminal Procedure 3.230. See Bundy , 366 So. 2d at 442. Rule 3.230 provided that a trial judge "shall not pass on the truth of the facts alleged nor adjudicate the question of disqualification ." Fla. R. Crim. P. 3.230(d) (emphasis added). The phrase "shall not ... adjudicate the question of disqualification" was eliminated along with rule 3.230 itself when the Florida Supreme Court replaced it with the language of the current rule. See The Florida Bar Re: Amend. to Fla. R. of Jud. Admin. , 609 So. 2d 465, 466 (Fla. 1992) (adopting Florida Rule of Judicial Administration 2.160, the predecessor to rule 2.330, and explaining that "the committee's proposal clarifies the means to disqualify trial judges consistent with this court's opinion in Brown v. St. George Island, Ltd. , 561 So. 2d 253 (Fla. 1990)"); see also Fla. R. Gen. Prac. & Jud. Admin. 2.330(h). Both rule 2.160 and rule 2.330 provide that a "judge against whom an initial motion to disqualify ... is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged," and when an order denying the motion to disqualify as legally insufficient is entered, "[n]o other reason for denial shall be stated, and an order of denial shall not take issue with the motion."
The trial court's order does not pass on the truth of Wagner's allegations or refute the accusation that the judge was impartial. Rather, the order merely points out that, as alleged, Wagner's motion to disqualify is insufficient because it fails to meet the standard requiring factual assertions supporting bias or prejudice that would give rise to an objectively reasonable fear as contemplated by rule 2.330(c) and (d) and section 38.10. The trial court did not explain, controvert, deny, refute, or otherwise attempt to dispute Wagner's factual allegations. Rather, after reciting the standard for disqualification and quoting cases that focus on the question of whether the "facts pleaded" are sufficient to support the requisite prejudice or bias, the judge concluded that Wagner had "presented no facts suggesting that the Court has made any statement about him personally, about the charge he is facing or about the law firm he has chosen to substitute in to replace his original attorney," and, as such, his " ‘fears’ are not objectively reasonable." That language is merely an expression, based on the trial court's reading of the law, that the motion lacked sufficient allegations of bias or prejudice to establish the requisite objectively reasonable fear of being deprived of a fair trial. The order did no more than deny Wagner's "motion as legally insufficient because the facts alleged ... would not ‘place a reasonably prudent person in fear of not receiving a fair and impartial trial.’ " Peterson v. State , 221 So. 3d 571, 581 (Fla. 2017) (quoting Livingston v. State , 441 So. 2d 1083, 1087 (Fla. 1983) ).
In cases in which an independent basis for disqualification has been identified, the trial court has addressed the truthfulness of the movant's allegations instead of confining its analysis to the legal sufficiency of the motion as alleged. Compare Bundy , 366 So. 2d at 442 (reversing a trial court's order that "explain[ed], and in some respects controvert[ed], the specific factual allegations contained in the motion"), with Peterson , 221 So. 3d at 581 ("We conclude that not only was the motion to disqualify or recuse legally insufficient, but the order denying the motion did not impermissibly exceed the scope of the inquiry by passing on the truth of the facts alleged .... [T]he order only stated the basis for the legal insufficiency of the motion and went no further." (emphasis added)).
An independent basis for disqualification does not arise simply because the trial court says something more than merely that the motion is insufficient and therefore denied. Even if the trial court, as here, elaborates on its rationale for finding the allegations legally insufficient, there is no independent basis for disqualification if the trial court has not opined on or attempted to refute the truthfulness of the allegations of bias or prejudice or actually contested the assertion that the judge lacks impartiality. In other words, a judge may "pass on the legal sufficiency of the motion and supporting affidavits" but "cannot pass on the truth of the statements of fact set forth in the affidavit." See Brown v. St. George Island, Ltd. , 561 So. 2d 253, 255 (Fla. 1990) ; see also Jennings Constr. Corp. v. Grossman , 400 So. 2d 1056, 1057 (Fla. 3d DCA 1981) ("[T]he [trial court] simply entered an order denying, as insufficient, the suggestion of disqualification and made no effort to refute the charges of prejudice. Therefore, the discrete holding[ ] of ... Bundy ... [is] totally inapposite.").
Such elaboration does not violate the third sentence of rule 2.330(h), which prohibits "tak[ing] issue with the motion." Research has revealed no published opinion that directly addresses what it means to "take issue with the motion." However, the structure of rule 2.330(h) indicates that it is a reiteration of the prohibition on adjudicating the truthfulness of the factual allegations: the earlier sentence requiring that a judge "determine only the legal sufficiency of a motion" and prohibiting the judge from "pass[ing] on the truth of the facts alleged" is paralleled by the later sentence governing the content of an order denying a legally insufficient motion—"No other reason for denial shall be stated, and an order of denial shall not take issue with the motion." (Emphasis added).
The majority mischaracterizes the trial court's order. The gravamen of the trial court's order is that the facts alleged in Wagner's motion to disqualify were analogous to the facts alleged in the motions in the cases cited in the trial court's order, and yet, those appellate decisions affirmed the denials of the motions to disqualify or recuse. In other words, the trial court was not citing to those cases "to make certain analogies that surreptitiously refuted Mr. Wagner's [factual] allegations of bias" as the majority concludes. Rather, the trial court was doing the opposite: it presumed the allegations to be true and, by analogy to cases with similar allegations, concluded that they were legally insufficient. See Peterson , 221 So. 3d at 581 (affirming an order denying disqualification that "denied [the movant]’s motion as legally insufficient because the facts alleged ... would not ‘place a reasonably prudent person in fear of not receiving a fair and impartial trial’ " because "the order only stated the basis for the legal insufficiency of the motion and went no further" (quoting Livingston v. State , 441 So. 2d 1083, 1087 (Fla. 1983) )).
Wagner's argument that the trial court exceeded the proper scope of inquiry relies on the nonsequitur that the Judge commented on the veracity of the allegations by finding that Wagner's fears are not objectively reasonable. To the contrary, the trial court must determine—based on the allegations in the motion—whether the defendant's fears are objectively reasonable in order to reach a conclusion as to the sufficiency of the motion. See Gregory v. State , 118 So. 3d 770, 778 (Fla. 2013) ("Whether the motion is legally sufficient requires a determination as to whether the alleged facts would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial." (emphasis added) (quoting Rodriguez v. State , 919 So. 2d 1252, 1274 (Fla. 2005) )); see also Fla. R. Gen. Prac. & Jud. Admin. 2.330(h) ("If any motion is legally insufficient, an order denying the motion shall be immediately entered." (emphasis added)). "A mere ‘subjective fear[ ]’ of bias will not be legally sufficient; rather, the fear must be objectively reasonable." Gregory , 118 So. 3d at 778 (alteration in original) (quoting Arbelaez , 898 So. 2d at 41 ). Explaining why the allegations would not support an objectively reasonable fear does not require passing on their truthfulness and does not amount to a refutation of the charges of partiality. See Brown , 561 So. 2d at 255 (explaining that "the judge cannot pass on the truth of the statements of fact set forth in the affidavit," which "must be taken as true," and "may only pass on the legal sufficiency of the motion and supporting affidavits").
It is not a trial court's determination of whether the allegations support an objectively reasonable fear that exceeds the proper scope of inquiry so as to provide an independent basis for disqualification supporting prohibition. Rather, in cases granting relief based on an independent basis for disqualification it is a judge's attempt to refute or adjudicate the facts alleged by the movant or a judge's effort to establish his impartiality as a factual matter that exceeds the scope. See, e.g. , Cave v. State , 660 So. 2d 705, 708 (Fla. 1995) (concluding that the trial court erred by conducting a full evidentiary hearing on the motion to disqualify during which the State presented several witnesses to refute or contradict the movant's factual allegations); Greenwood v. State , 177 So. 3d 88, 88 (Fla. 2d DCA 2015) (finding an independent basis for disqualification where, at the hearing on the motion, the trial judge "improperly attempted to refute facts that [petitioner] alleged as a basis for believing that she would not receive a fair trial"); In re I.K., Jr. , 869 So. 2d 579, 579 (Fla. 2d DCA 2003) ("[I]n his seventeen-page order, the circuit judge went beyond merely determining the legal sufficiency of the motion and even refuted factual claims made by I.K., Jr. ... [O]n that basis alone [the circuit judge] established grounds for his disqualification."); see also Blalock v. State , 297 So. 3d 688, 690 (Fla. 1st DCA 2020) (finding an independent basis for disqualification had been established because the trial judge stated "that the allegations in the motion were ‘patently false’ "); State v. Scharlepp , 255 So. 3d 995, 995 (Fla. 1st DCA 2018) (finding an independent basis for disqualification where "the trial judge attempted to refute the charges of impartiality"); Lee Mem'l Health Sys. v. Agency for Health Care Admin. , 910 So. 2d 892, 893 (Fla. 1st DCA 2005) (finding an independent basis for disqualification where the trial judge contradicted the petitioner's factual allegations and asserted that he "provided each party with cold neutrality in a fair and impartial determination"); Rosen v. Tiffany of Bal Harbour Condo. Ass'n, Inc. , 306 So. 3d 154, 155 (Fla. 3d DCA 2020) (opining that the motion for disqualification was legally insufficient but granting the petition for writ of prohibition because the trial judge established an independent basis for disqualification by "personally fil[ing] a response [to the petition] which took issue with, and purported to refute, factual allegations in the underlying motion to disqualify" (footnote omitted)).
Whether the judge's extrajudicial activities were advisable is not a relevant matter for this court's contemplation. And the prudence of the trial court's decision to elaborate on its rationale for determining that the motion was legally insufficient—and the question of whether that elaboration conformed to perceived best practices for adjudication of a litigant's initial motion to disqualify— are not considerations within this court's ambit of review. This court's role is to determine whether the motion was facially sufficient—which it was not—and whether the judge exceeded the scope of inquiry allowed by the statute, rule, and controlling case law—which he did not.
There is nothing in the trial court's order suggesting that the trial court was contesting the factual allegations or refuting the assertion of partiality. Rather, the trial judge explained why the allegations were not legally sufficient to satisfy the standard for disqualification. As such, I would deny the petition.