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Florida Bar Journal

Don’t Let the Blindfold Slip: A Guide to Judicial Disqualification

Featured Article

Illustration of blinded Lady Justice with scales of justice A $3 million dollar campaign contribution to a West Virginia Supreme Court judicial candidate should have prevented the elected candidate from presiding over a case involving this contributor. Yet, it took years before the U.S. Supreme Court reversed a $50 million judgment in favor of that contributor in Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009). The Brennan Center for Justice of the New York University School of Law recently reported that most states, including Florida, have not heeded Caperton ’s call to strengthen judicial recusal rules.1

Judicial neutrality is critical to our legal system. Florida judges have the obligation to voluntarily recuse themselves for a variety of reasons, including bias or prejudice regarding a party or an economic interest in the matter.2 Canon 3E of the Florida Judicial Conduct Code applies to all judges, but there is no statutory right or mandatory procedure for disqualifying an appellate court judge.3 Instead, determination of the disqualification motion is “personal and discretionary” with the individual appellate judge.4 A disqualification decision made by a Florida Supreme Court justice is unreviewable; the motion is directed to the challenged judge, and the judge’s decision is final.5 Such a practice has been criticized as eroding public confidence in the judicial system.6

There is some confusion about the standard for disqualification of circuit judges when they are acting in an appellate capacity. One appellate court has ruled the trial court disqualification rules apply to a single circuit judge performing in an appellate capacity.7 Another district has held that the appellate disqualification standard applies to trial court judges sitting in three-judge appellate panels.8 Fla. R. Jud. Admin. 2.330(a) expressly states the trial disqualification rules apply to county and circuit court judges “in all matters in all divisions.”

Judicial disqualification standards for trial and appellate judges are quite distinct. Although Florida’s rules may need strengthening, litigants have a statutory right to request disqualification of trial court judges when prejudice is reasonably feared.9 The effectiveness of this process hinges upon the key role attorneys play in maintaining the blindfold of judicial neutrality. This article focuses on a litigant’s right to disqualify10 a trial court judge, and it will assist Florida attorneys in improving their use of this tool.

Judicial Disqualification Based Upon Relationships
Certain relationships, including an association with the litigation subject matter, can require judicial removal. A judge may not continue if there is a possibility the lawsuit will financially benefit the judge or a close relative.11 Disqualification must also be ordered when a judge or family member is personally involved in a similar legal difficulty.12

An attorney’s current or recent representation of the judge, the judge’s spouse, or even the judge’s significant other, requires disqualification.13 It is also necessary when a judge’s spouse has an ongoing business relationship with a litigant’s expert.14 Prior representation of a litigant when a judge was a practicing attorney does not require replacement if there is no recent confidential relationship, and the extent of prior contact was not meaningful.15

Legal campaign contributions are inadequate to compel judicial disqualification, even though the combined contributions of law firm members totaled almost $5,000.16 Active participation in a judge’s election campaign requires disqualification,17 but that is not the case when the attorney did not play an instrumental role in the political campaign or when the campaign was several years ago.18

Adverse relationships between a judge and an attorney can lead to judicial disqualification. An acrimonious political campaign between a judge and a litigant’s attorney necessitates disqualification.19 Conversely, a trial judge’s appointment as a referee in an attorney’s pending disciplinary action is insufficient to dictate disqualification without a showing of personal bias.20

Friendship without “special circumstances” between a judge and a litigant, attorney, or witness does not require disqualification.21 A new rule requiring judicial substitution when friendship goes beyond “politeness” and constitutes “loyalty” has been nationally advanced.22 Indeed, Florida judges have been cautioned not to “friend” attorneys on the judge’s Facebook page because this recognition “conveys or permits others to convey the impression that they are in a special position to influence the judge.”23

Once a judge discloses a relationship and offers recusal, a disqualification motion must be granted.24 A judicial connection that compels disqualification in one case applies to all such cases.25 Significantly, an attorney cannot join litigation and succeed in obtaining judicial removal based upon a known conflict.26

Judicial Disqualification Based Upon Actions
Adverse rulings are an insufficient basis for disqualification.27 Judicial actions cross the line when a judge becomes an active participant in the adversarial process, i.e., giving “tips” to either side.28 Similarly, seeking information outside the courtroom is an investigative action requiring disqualification.29 While judicial questions to clarify testimony are permitted, extensive questioning or questions providing the essential elements of a party’s case requires removal.30

Preventing a litigant from introducing testimony or engaging in cross-examination constitutes a due process violation and provides a basis for disqualification.31 Ex parte communication is permissible for purely administrative matters.32 When one-sided judicial contact exceeds that purpose, disqualification is required.33

Although a judge may form mental impressions during a proceeding, prejudgment of an issue is not permitted.34 This principle does not prevent judicial performance of preliminary research or note preparation before a hearing.35 Disqualification is required when judicial comments are made about matters not yet before the court, or prior to an evidentiary presentation.36 Consequently, a well-founded fear of bias was found to exist because a judge commented at a contempt hearing before any testimony was offered, “[S]o he’s going to tell me one more time he has no money when I haven’t believed him anytime before.”37

A judge’s targeted personal remarks may create a well-grounded fear of bias mandating disqualification. Although a judge is permitted to make civil remarks expressing frustration with attorneys,38 comments exceed the bounds when the judge calls an attorney a “liar” or a “substandard Miami lawyer.”39

Remarks demonstrating a subject matter predisposition can also lead to disqualification. In a marital dissolution case, the judge’s use of the term “alimony drone” indicated a negative view of alimony, and warranted disqualification.40 General remarks — like “tough on crime” — will not necessitate removal, but a judicial suggestion that the death penalty was inappropriate due to the defendant’s advanced age required disqualification.41

Judicial Disqualification Procedural Requirements
F.S. §38.10 provides litigants with the substantive right to seek disqualification of trial judges, and Fla. R. Jud. Admin. 2.330 governs the procedure.42 A disqualification motion must be “legally sufficient.”43 This prerequisite is not examined based on evidence; rather, it is the litigant’s perspective that is important.44 The motion must establish an “objectively reasonable” fear of prejudice because subjective fear is inadequate.45

A motion for judicial disqualification must be in writing.46 If the motion is orally made, the judge must interrupt the proceedings to provide a reasonable time for preparation of a written motion.47 The motion must be sworn or supported by a party’s sworn affidavit.48 In addition, the motion must contain 1) information regarding any prior disqualifications; 2) a certificate from counsel confirming the motion and client’s statements are made in good faith; and 3) a certificate showing service of the motion upon the trial judge.49 If the motion is based upon judicial conduct or remarks, it is imperative the motion set forth the context of the conduct or remarks.50

Rumors and gossip are a flawed basis for disqualification, as is an affidavit based only upon information and belief.51 In contrast, a disqualification movant is not required to have personal knowledge of the judge’s relationships or conduct; rather, an affidavit is sufficient if it is at least partially based on the affiant’s personal knowledge.52

A judicial disqualification motion must be filed within 10 days of the time the basis for removal is discovered.53 Timeliness is a matter of fact, but it is the litigant’s allegations of these facts that control.54 If the disqualification basis occurs during trial, an immediate objection must be made, as a delay until after judgment is usually untimely.55

Cumulative events, provided they occur within a short time span, may be used together to show judicial bias.56 Even when an earlier event cannot be used as a timely basis for disqualification, that event may still be relevant.57 Failure to timely file a disqualification motion provides a basis for denial.58 Interestingly, if the trial court fails to address the timeliness issue, the issue has not been preserved and will not be considered on appeal.59

Although a hearing may be conducted on a disqualification motion, the introduction of evidence is not permitted and holding a hearing has been labeled “unwise.”60 To minimize heightened adversarial tension, judges are limited to making only “a bare determination of legal sufficiency.”61 Indeed, a separate basis for disqualification is created if the judge investigates or challenges the factual allegations of a disqualification motion.62 Even when a motion was untimely and uncertified, and the basis probably inadequate, disqualification was compelled solely because the judge commented on the truthfulness of the alleged facts.63 Importantly, once disqualification has occurred in a case, the rules change, and the trial judge may then challenge allegations of bias.64

After a disqualification motion is filed, the trial court judge must immediately rule on this matter before taking any other action, i.e., no later than 30 days.65 Proper service of the disqualification motion on the trial judge is critical to the operation of this rule. If the motion is sent to an incorrect address, or if the motion does not contain a certificate of judicial service, the 30-day service deadline is not triggered.66 This time limit is absolute if activated by proper service, and even a one-day agreed delay is unacceptable.67 The disqualification motion is deemed granted if the judge fails to timely rule, and the movant is entitled to judicial reassignment.68

After the Disqualification Ruling
Once a judge makes a recusal offer or enters a disqualification order, reconsideration is not an option, even if the judge acted mistakenly.69 In addition, partial disqualification is not permissible; it must be complete.70 Once an order is entered, the disqualified judge can take no action except for the ministerial act of reducing an oral order to writing.71 Indeed, a disqualified judge is not permitted to determine whether a judgment prepared by counsel complies with judicial instructions because this act is one of discretion.72

A litigant who succeeds in disqualification has a right to ask the successor judge for reconsideration of previously entered orders. This is a significant right that must be timely exercised. The reconsideration motion must be filed within 20 days of the disqualification order.73 The successor judge is not required to hold a hearing on the issue of whether to reconsider, but once the decision to reconsider is affirmatively made, a hearing must be held with notice and an opportunity to be heard given to all parties.74

Prohibition is used to prevent the improper use of judicial power, and it is the appropriate appellate remedy for the interlocutory denial of a judicial disqualification motion.75 A petition for this writ should be filed with the appellate court within 30 days of the disqualification denial,76 and it must be served upon the trial court judge.77 If the appellate court determines the petition demonstrates a preliminary basis for relief, an order to show cause will be issued, staying further trial court proceedings and providing the opposing party the opportunity to respond.78 Notably, a trial judge’s pro se response to a prohibition petition required disqualification because the judge commented on the facts alleged in a disqualification motion.79

Disqualification is a vital safeguard to the preservation of judicial neutrality. The procedure is exacting, and the short deadline leaves little time for education when a problem arises. In addition, reluctance to challenge judicial authority may exist. Maintaining judicial impartiality is a critical task for both the judiciary and attorneys. If the blindfold begins to slip, a well-informed Florida trial attorney is the only safeguard that remains.

1 Brennan Center for Justice at the New York University School of Law Press Release reported by Editorial, Can Justice Be Bought, N.Y. Times, June 16, 2011, at A34. Only “nine states — Arizona, California, Iowa, Michigan, Missouri, New York, Oklahoma, Utah and Washington State — have made recusal mandatory when contributions by a party or attorney exceed a certain threshold amount.”

2 Fla. Code Jud. Conduct Cannon 3E. Disqualification. “(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding; (b) the judge served as a lawyer or was the lower court judge in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it; (c) the judge knows that he or she individually or as a fiduciary, or the judge’s spouse, parent, or child wherever residing, or any other member of the judge’s family residing in the judge’s household has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding; (d) the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) is a party to the proceeding, or an officer, director, or trustee of a party; (ii) is acting as a lawyer in the proceeding; (iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding; (iv) is to the judge’s knowledge likely to be a material witness in the proceeding; (e) the judge’s spouse or a person within the third degree of relationship to the judge participated as a lower court judge in a decision to be reviewed by the judge; (f) the judge, while a judge or a candidate for judicial office, has made a public statement that commits, or appears to commit, the judge with respect to: (i) parties or classes of parties in the proceeding; (ii) an issue in the proceeding; or (iii) the controversy in the proceeding. (2) A judge should keep informed about the judge’s personal and fiduciary economic interests, and make a reasonable effort to keep informed about the economic interests of the judge’s spouse and minor children residing in the judge’s household.”

3 In re Estate of Carlton, 378 So. 2d 1212, 1216, 1218 (Fla. 1979).

4 Id.

5 Id.

6 Adam Skaggs & Andrew Silver, Promoting Fair and Impartial Courts through Recusal Reform, 3-7 Brennan Center for Justice (Rev. Aug. 2011); Editorial, A Study in Judicial Dysfunction, N.Y. Times, Aug. 20, 2011, at A18.

7 Smith v. Santa Rosa Island Authority, 729 So. 2d 944, 946 (Fla. 1st D.C.A. 1998).

8 Clarendon Nat’l Ins. Co. v. Shogreen, 990 So. 2d 1231, 1233-1234 (Fla. 3d D.C.A. 2008). Smith was distinguished because it considered a single circuit judge acting in an appellate capacity, and any bias of a single judge would have more impact on the decision than one judge of a three-judge panel.

9 Fla. Stat. §38.10 (2011); Fla. R. Jud. Admin. 2.330(d); Livingston v. State, 441 So. 2d 1083, 1087 (Fla. 1983).

10 The terms “recusal” and “disqualification” are often confused. In Florida, recusal is a voluntary action taken by the judge, whereas a litigant initiates disqualification. Sume v. State, 773 So. 2d 600, 602 (Fla. 1st D.C.A. 2000).

11 Corie v. City of Riviera Beach, 954 So. 2d 68 (Fla. 4th D.C.A. 2007).

12 See, e.g., Bethesda Memorial Hosp., Inc. v. Cassone, 807 So. 2d 142 (Fla. 4th D.C.A. 2002) (debt collection matter); Aberdeen Property Owners Ass’n, Inc. v. Bristol Lakes Homeowners Ass’n, Inc., 8 So. 3d 469 (Fla. 4th D.C.A. 2009) (homeowner’s association dispute).

13 E.g., City of Fort Lauderdale v. Palazzo Las Olas Group, LLC, 882 So. 2d 1102 (Fla. 4th D.C.A. 2004) (representation of judge); J&J Towing, Inc. v. Stokes, 789 So. 2d 1196 (Fla. 4th D.C.A. 2001) (representation of judge’s spouse); Baez v. Koelemij, 960 So. 2d 918 (Fla. 4th D.C.A. 2007) (representation of judge’s “significant other”).

14 E.g. , Aurigemma v. State, 964 So. 2d 224 (Fla. 4th D.C.A. 2007).

15 E.g. , Milani v. Palm Beach County, 973 So. 2d 1222, 1227 (Fla. 4th D.C.A. 2008).

16 E.I. DuPont de Nemours & Co. v. Aquamar S.A., 24 So. 3d 585 (Fla. 4th D.C.A. 2009).

17 Neiman-Marcus Group, Inc. v. Robinson, 829 So. 2d 967 (Fla. 4th D.C.A. 2002) (campaign treasurer); Dell v. Dell, 829 So. 2d 969 (Fla. 4th D.C.A. 2002) (one of six members of a reelection committee).

18 Braynen v. State, 895 So. 2d 1169 (Fla. 4th D.C.A. 2005) (one member of a 34-member steering committee); Garcia v. American Income Life Ins. Co., 664 So. 2d 301, 302 (Fla. 3d D.C.A. 1995) (attorney’s spouse was judge’s campaign manager four years previously).

19 Tower Group, Inc. v. Doral Enterprises Joint Ventures, 760 So. 2d 256 (Fla. 3d D.C.A. 2000).

20 State ex rel. Metsch v. Traeger, 834 So. 2d 877 (Fla. 3d D.C.A. 2003).

21 In re Estate of Carlton, 378 So. 2d 1212, 1219-20 (Fla. 1979).

22 Jeremy M. Miller, Judicial Recusal and Disqualification: The Need for a Per Se Rule on Friendship (Not Acquaintance), 33 Pepp. L. Rev. 575 (2006).

23 Fla. JEAC Op. 09-20 (2009); Fla. JEAC Op.10-06, 2010 WL 7809062, Fla. Jud. Eth. Adv. Comm. (2010).

24 Stevens v. Americana Healthcare Corp., 919 So. 2d 713 (Fla. 2d D.C.A. 2006).

25 E.g., Walls v. State, 910 So. 2d 432 (Fla. 4th D.C.A. 2005) (adversarial relationship); Mulligan v. Mulligan, 877 So. 2d 791 (Fla. 4th D.C.A. 2004) (friendship).

26 E.g., Sume v. State, 773 So. 2d 600 (Fla. 1st D.C.A. 2000).

27 E.g., Howard v. State, 950 So. 2d 1260, 1262 (Fla. 5th D.C.A. 2007); Letterese v. Brody, 985 So. 2d 597, 599 (Fla. 4th D.C.A. 2008).

28 E.g., Chastine v. Broome, 629 So. 2d 293 (Fla. 4th D.C.A. 1993).

29 E.g., Albert v. Rogers, 57 So. 3d 233, 236 (Fla. 4th D.C.A. 2011).

30 E.g., Stockstill v. Stockstill, 770 So. 2d 191 (Fla. 5th D.C.A. 2000) (extensive questioning) (the author’s firm represented the appellant in this case); R.O. v. State, 46 So. 3d 124 (Fla. 3d D.C.A. 2010) (essential elements).

31 E.g., Swida v. Raventos, 872 So. 2d 413 (Fla. 4th D.C.A. 2004) (denied opportunity of presenting defense); Zuchel v. State, 824 So. 2d 1044, 1046 (Fla. 4th D.C.A. 2002) (denied opportunity of cross-examination).

32 E.g., Jimenez v. State, 997 So. 2d 1056, 1072-73 (Fla. 2008); Nudel v. Flagstar Bank, FSB, 52 So. 3d 692 (Fla. 4th D.C.A. 2010).

33 E.g., Frengel v Frengel, 880 So. 2d 763 (Fla. 2d D.C.A. 2004) (email communication between the judge and the parties’ children).

34 E.g., Leslie v. Leslie, 840 So. 2d 1097 (Fla. 4th D.C.A. 2003).

35 Bush v. Schiavo, 861 So. 2d 506, 509 (Fla. 2d D.C.A. 2003).

36 E.g., Kates v. Seidenman, 881 So. 2d 56 (Fla. 4th D.C.A. 2004) (issues not before court at temporary relief hearing); Williams v. Balch, 897 So. 2d 498 (Fla. 4th D.C.A. 2005) (predisposition before considering evidence).

37 Peterson v. Asklipious, 833 So. 2d 262 (Fla. 4th D.C.A. 2002).

38 See, e.g. , Letterese v. Brody, 985 So. 2d 597 (Fla. 4th D.C.A. 2008).

39 Siegel v. State, 861 So. 2d 90 (Fla. 4th D.C.A. 2003) (characterized attorneys as liars); Marshall v. Bookstein, 789 So. 2d 455 (Fla. 4th D.C.A. 2001) (referenced attorneys as “substandard Miami lawyers”).

40 Valdes-Fauli v. Valdes-Fauli, 903 So. 2d 214 (Fla. 3d D.C.A. 2005);

41 Arbelaez v. State, 775 So. 2d 909, 916 (Fla. 2005); State v. Ballard, 956 So. 2d 470 (Fla. 2d D.C.A. 2007).

42 Wickham v State, 998 So. 2d 593, 596 (Fla. 2008). These rules also apply to special masters. Fla. R. Civ. P. 1.490(d); Pasteur Medical Center, Inc. v. Wellcare of Florida, Inc., 943 So. 2d 144, 146-47 (Fla. 3d D.C.A. 2006).

43 Fla. R. Jud. Admin. 2.330(f).

44 E.g., Livingston v. State, 441 So. 2d 1083, 1087 (Fla. 1983).

45 E.g. , Rodgers v. State, 948 So. 2d 655, 672-73 (Fla. 2006).

46 Fla. R. Jud. Admin. 2.330(c)(1); Migliore v. Migliore, 792 So. 2d 1276 (Fla. 4th D.C.A. 2001).

47 Rodgers v. State, 630 So. 2d 513, 516 (Fla. 1993).

48 Fla. R. Jud. Admin. 2.330(c)(3); e.g., Wal-Mart Stores, Inc. v. Carter, 768 So. 2d 21 (Fla. 1st D.C.A. 2000); Skarka v. Lennar Homes, Inc., 29 So. 3d 1170 (Fla. 1st D.C.A. 2010).

49 Fla. R. Jud. Admin. 2.330(c)(4).

50 See, e.g., Ursi v. Ursi, 21 So. 3d 45 (Fla. 3d D.C.A. 2009); Marshall v. Bookstein, 789 So. 2d 455 (Fla. 4th D.C.A. 2001). The better practice is to provide a transcript.

51 Barwick v. State, 660 So. 2d 685, 693 (Fla. 1995), receded from on other grounds by Topps v. State, 865 So. 2d 1253  (Fla. 2004) (rumors or gossip); Hahn v. Frederick, 66 So. 2d 823, 825 (Fla. 1953) (information and belief).

52 E.g., Hayslip v. Douglas, 400 So. 2d 553, 556 (Fla. 4th D.C.A. 1981); Gieseke v. Grossman, 418 So. 2d 1055, 1057 (Fla. 4th D.C.A. 1982).

53 Fla. R. Jud. Admin. 2.330(e); Doorbal v. State, 983 So. 2d 464, 475-76 (Fla. 2008); Holter v. Dohnansky, 917 So. 2d 242, 243 (Fla. 5th D.C.A. 2005) (the mail rule applies, so a motion filed on the 11th day following a weekend is timely).

54 See, e.g., Brown ex rel. Preshong-Brown v. Graham, 931 So. 2d 961, 963-64 (Fla. 4th D.C.A. 2006).

55 E.g., Fischer v. Knuck, 497 So. 2d 240, 243 (Fla. 1986); Detournay v. City of Coral Gables, 65 So. 3d 1103 (Fla. 3d D.C.A. 2011).

56 E.g., Chillingworth v. State, 846 So. 2d 674, 676 (Fla. 4th D.C.A. 2003); cf. Inphynet Contracting Services, Inc. v. Soria, 37 So. 3d 299, 300 (Fla. 4th D.C.A. 2010) (cumulative events over a long time period is insufficient).

57 R.V. v. State, 44 So. 3d 180, 183 (Fla. 4th D.C.A. 2010).

58 E.g., Rodriquez v. State, 919 So. 2d 1252, 1274 (Fla. 2006); T/F Systems, Inc. v. Malt, 814 So. 2d 511, 513 (Fla. 4th D.C.A. 2002).

59 Roberts v. State, 840 So. 2d 962, 969 (Fla. 2002).

60 Letterese v. Brody, 985 So. 2d 597, 598-99 (Fla. 4th D.C.A. 2008) (argument permitted); Shuler v. Green Mountain Ventures, Inc., 791 So. 2d 1213, 1216 fn.1 (Fla. 5th D.C.A. 2001) (hearing unwise).

61 Fla. R. Jud. Admin. 2.330(f); Bundy v. Rudd, 366 So. 2d 440, 442 (Fla. 1978).

62 Fla. R. Jud. Admin. 2.330(f); see, e.g., D.H. ex rel. J.R. v. Dept. of Children and Families, 12 So. 3d 266, 271 (Fla. 1st D.C.A. 2009); Edwards v. State, 976 So. 2d 1177 (Fla. 4th D.C.A. 2008).

63 E.g. , Dominquez v. State, 944 So. 2d 1052 (Fla. 4th D.C.A. 2006).

64 Fla. R. Jud. Admin. 2.330(g).

65 Fla. R. Jud. Admin. 2.330(j); e.g., Valdes-Fauli v. Valdes-Fauli, 903 So. 2d 214, 217-18 (Fla. 3d D.C.A. 2005) (rule on disqualification before taking any other action); Hatfield v. State, 46 So. 3d 654 (Fla. 2d D.C.A. 2010) (mail rule applies to extend this deadline).

66 E.g., Tobkin v. State, 889 So. 2d 120 (Fla. 4th D.C.A. 2004) (incorrect address); Marquez v. State, 11 So. 3d 975 (Fla. 3d D.C.A. 2009) (no judicial certificate of service).

67 Schisler v. State, 958 So. 2d 503 (Fla. 3d D.C.A. 2007).

68 Fla. R. Jud. Admin. 2.330(j); see, e.g., Lightsey v. State, 53 So. 3d 1093 (Fla. 1st D.C.A. 2011). Rowe v. Duetche Bank Nat. Trust Co., 49 So. 3d 1285 (Fla. 1st D.C.A. 2010) (mandamus denied as premature where a written demand for reassignment was not made).

69 E.g., Stevens v. Americana Healthcare Corp. of Naples, 919 So. 2d 713, 715-16 (Fla. 2d D.C.A. 2006) (if recusal offered judge must grant disqualification motion); Jenkins v. Motorola, Inc., 911 So. 2d 196 (Fla. 3d D.C.A. 2005) (mistaken entry of disqualification order cannot be corrected).

70 See, e.g., Southern Coatings, Inc. v. City of Tamarac, 840 So. 2d 1109 (Fla. 4th D.C.A. 2003); Thibideau v. Estate of Blane, 851 So. 2d 911 (Fla. 4th D.C.A. 2003).

71 See, e.g. , Fernwoods Condominum Ass’n #2, Inc. v. Alonso, 26 So. 3d 27 (Fla. 3d D.C.A. 2009).

72 E.g., Berry v. Berry, 765 So. 2d 855, 857-58 (Fla. 5th D.C.A. 2000); Plaza v. Plaza, 21 So. 3d 181 (Fla. 3d D.C.A. 2009).

73 Fla. R. Jud. Admin. 2.330(h); Weiss v. Berkett, 907 So. 2d 1181 (Fla. 3d D.C.A. 2005).

74 Rath v. Network Marketing, L.C., 944 So. 2d 485 (Fla. 4th D.C.A. 2006) (no hearing required on decision of whether to reconsider); Southern Coatings, Inc. v. City of Tamarac, 943 So. 2d 948, 952 (Fla. 4th D.C.A. 2006) (if successor judge decides to reconsider, hearing required on merits).

75 E.g., Sutton v. State, 975 So. 2d 1073, 1076-77 (Fla. 2008).

76 There is no mandatory time requirement for the filing of a prohibition petition. However, such a petition should be timely filed. Padavano, Florida Appellate Practice, §29.9 at 746 (2010 ed).

77 Fla. R. App. P. 9.100(e)(2).

78 Fla. R. App. P. 9.100(h); Plavnicky v. Deluicia, 954 So. 2d 1178 (Fla. 4th D.C.A. 2007).

79 Rollins v. Baker, 683 So. 2d 1138, 1140 (Fla. 5th D.C.A. 1996) (a judge’s “best course of action” is to request a response from the attorney general).

Marcia K. Lippincott is a board certified appellate specialist who is a sole practitioner based near Orlando. She is AV-rated by Martindale Hubbell and devotes her practice to civil appeals and litigation support.