Extraordinary writs are a form of relief that appellate courts have discretion to issue in certain circumstances. The power to issue extraordinary writs comes from Article V, section 4(b)(3) of the Florida Constitution, with limitations on how the Florida Supreme Court can apply such writs in certain cases. In civil matters, district courts of appeal may issue writs of mandamus, certiorari, prohibition, quo warranto, and all other writs necessary to exercise their jurisdiction, often guided by the expertise of a Florida appellate attorney. Writs of prohibition are the vehicle by which appellate courts restrain the unauthorized use of judicial power by lower courts, especially in matters involving judicial bias.Consulting a Florida appellate attorney can be invaluable in navigating the complexities of these writs and ensuring that the correct legal strategy is applied to protect your interests.
Prohibition: Restricting a Lower Courts Unauthorized Use of Judicial Power
In layman’s terms, writs of prohibition are used to prevent a lower court from using its judicial power in certain circumstances, particularly when a party feels there may be judicial bias influencing decisions. We italicize the word “judicial” because the remedy afforded by these writs is limited to judicial or quasi-judicial acts. The remedy is to prevent the lower court from doing the act in question, not to correct the lower court’s decision in any way.
What is unique about writs of prohibition is that the reviewing court has no obligation to grant a petition for the writ, even if prohibition would be an appropriate remedy. The reviewing court has discretion to grant the remedy. Still, it is a useful tool to prevent, should the reviewing court decide to do so, a lower court from doing something it is plainly not authorized to do.
Using Prohibition When State Courts Lack Jurisdiction
A writ of prohibition is used to prevent a lower court from acting without jurisdiction over a matter. One example is when a party removes a matter from state court to federal court in a civil proceeding, a move that may require careful review by a Florida appellate attorney to prevent lower courts from overstepping their jurisdiction. “[A]fter removal, the jurisdiction of the state court absolutely ceases and the state court has a duty not to proceed any further in the case. Any subsequent proceedings in state court on the case are void ab initio.” Maseda v. Honda Motor Co., Ltd., 861 F.2d 1248, 1254–55 (11th Cir.1988) (internal citation omitted). The “state court is allowed to resume jurisdiction of the removed case if, and only if, the federal court grants permission by entering an order of remand.” Preston v. Allstate Ins. Co., 627 So.2d 1322, 1324 (Fla. 3d DCA 1993) (citing 28 U.S.C. § 1446(d)). Thus, if a state court continues to exercise its judicial power after a case has been removed to federal court, a petition for writ of prohibition may be an effective tool to prevent the state court from doing so.
When a Court Can be Stopped From Proceeding
The example of when a case is removed from state court to federal court is one where the lower court in question lacks subject matter jurisdiction. Writs of prohibition may be issued to prevent lower courts from hearing a case over which it lacks subject matter jurisdiction, which occurs in many contexts distinct from the above example. Another common situation that will support a basis for the issuance of a writ of prohibition is where a party has failed to invoke the jurisdiction of a court – usually by failing to comply with a certain procedural requirement. For example, if, after a notice of appeal is untimely filed, an appellate court continues to hear an appeal notwithstanding this procedural deficiency, a higher appellate court could issue a writ of prohibition to prevent the lower appellate court from hearing the appeal. This is because the deadline to file a notice of appeal is jurisdictional. Joseph v. State, 157 So. 3d 546 (Fla. Dist. Ct. App. 2015) (“[B]ecause the notice of appeal was received by the clerk of the lower tribunal one day after the 30–day deadline, we do not have jurisdiction to review the challenged order and this appeal must be dismissed.”).
Make no mistake, a lower court still has authority to determine whether it can exercise jurisdiction over a case, so a writ of prohibition will not be issued to prevent a lower court from making this determination.
Using Prohibition to Challenge Judicial Bias in Florida
A wealth of authority in Florida exists which supports the use of prohibition to review orders denying motions to disqualify a judge. Because an order denying a motion to disqualify a judge is not a final order, and does not fall under Florida Rule of Appellate Procedure 9.130 as an appealable non-final order, a writ of prohibition — as recognized by the Florida Supreme Court — is the only tool appellate attorneys have to review such orders before the entry of final judgment (though an order denying a motion to disqualify a judge can still be reviewed in a plenary appeal from a final judgment). However, if a party is concerned about ex-parte communications a judge may have had with the opposing side, or concerned about judicial bias stemming from prejudicial statements made by a judge, it is generally considered the better practice to seek immediate review by filing a petition for writ of prohibition when a judge refuses to recuse himself/herself.
Limitations on Florida Supreme Court’s Use of Prohibition
The Florida Supreme Court does not have jurisdiction to restrain an administrative agency’s exercise of judicial power, even if it is an unlawful exercise of power. This is true for any tribunal that is not a part of the court system.
Interestingly, this limitation does not apply to the district courts of appeal. Under Article V, section 4(b)(3) of the Florida Constitution, district courts of appeal may issue writs of prohibition to all types of lower tribunals. This includes administrative agencies.
The circuit courts sometimes sit in an appellate capacity – mostly presiding over appeals of certain county court decisions. Thus, when a circuit court is able to exercise subject matter jurisdiction in its appellate capacity, and when such circuit court is within the territorial jurisdiction of the lower court, a petition for writ of prohibition may be filed with the circuit court.
Thus, there are three levels of reviewing courts to whom a petition for writ of prohibition may be directed, and so it is important to determine, before filing a petition, which court has a right to issue the right. The correct court to file with is the court that would have direct appellate jurisdiction over an appealable non-final order or a final order. If there is any doubt that a party or practitioner has over this determination, it is best to consult experienced appellate counsel before proceeding.
No Set Time Limit to File the Petition
There is no jurisdictional time limit within which a party must file a petition for writ of prohibition. This is significant. As stated above, a direct appeal of an order (extraordinary writ proceedings are not considered “direct appeals”) must be filed within thirty (30) days from rendition of the order, or else the right to appeal is completely lost. This is not a concern when it comes to petitions for writ of prohibition. However, an appellate court can deny relief if the petition is not filed within a reasonable time from discovery of the grounds for prohibition. So, it is best to act promptly.
Conclusion
Entire chapters of Florida Bar appellate practice treatises are dedicated to the subject of the extraordinary writ of prohibition. While this article is not intended to provide a full and complete treatment of writs of prohibition, it is a useful starting point which addresses some of the more common questions that arise in civil matters.
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