First DCA: JCC Not Disqualified from Hearing Claimant's Case
As I discussed here briefly, if a litigant in a workers' compensation proceeding fears that he will not receive a fair hearing at the hands of the JCC assigned to his case, Fla. Admin. Code R. 60Q-6.126 provides that he may file a motion seeking disqualification of the judge under the applicable Florida Rules of Judicial Administration. The standard for granting relief under this rule is not whether the litigant has a subjective fear that he will not receive a fair hearing. Rather, he must allege in his motion specific facts which would prompt a reasonably prudent person to conclude that he could not get a fair hearing.
Once legally sufficient factual allegations are made, however, Fla.R.Jud.Admin. 2.330(f) provides that the JCC may not pass on the truth of the facts alleged. If the facts alleged are legally sufficient, he must grant the motion. If the movant believes that his motion has been improperly denied, he may seek immediate review of that decision by filing a petition for writ of prohibition in the First DCA without having to wait for an adverse order from the JCC on the merits of his case.
In Schwartzkopf v. Sea Ray Boats, Inc., and Robinson v. Warden Construction, Inc., both decided on 5/8/2008, the First DCA by a 2-1 vote in each case summarily denied such petitions. Both cases involved motions to disqualify JCC Terlizzese which were filed by the same attorney. Because the court elected not to write a full opinion in either case, however, we know very little about the facts that were alleged in the petitioners' motions below. (The motions also are not available on DOAH's website).
However, from Chief Judge Browning's dissenting opinions, it appears that an adversarial relationship had developed not between the JCC and the claimant, but between the JCC and the claimant's attorney. Without reciting them in detail, Judge Browning concluded that the facts alleged in the motions were legally sufficient and that they therefore should have been granted. (There are, in fact, several decisions in non-workers' compensation cases holding that an adversarial relationship between a judge and a litigant's attorney can under certain circumstances form a sufficient basis for disqualification of the judge. See, e.g., Franco v. State, 777 So.2d 1138 (Fla. 4th DCA 2001)).
