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stating that neither sending a gentle reminder to the judge nor applying for a writ of mandamus "is a burden that should be placed on the movant. The rule places the burden on the judge to rule [as required by the disqualification rule] and the litigant should not be required to nudge the judge. Nor is it right to require a party to file a petition for writ of mandamus."
Summary of this case from Schisler v. StateOpinion
No. 5D01-2758
Opinion filed January 4, 2002
Petition for Writ of Prohibition, Daniel P. Dawson, Respondent Judge.
James M. Russ of the Law Offices of James M. Russ, P.A., Orlando, for Petitioners.
Susan E. Burr of Department of Children and Families, Kissimmee, for Respondent.
Dennis W. Moore of Guardian ad Litem Program of Osceola County, Kissimmee, for Guardian ad Litem.
G.C. and D.C. petition this court seeking a writ of prohibition. Specifically, they challenge the trial court's denial of their motion to disqualify the trial judge. We grant the petition because the trial court delayed too long before ruling on the motion. Anderson v. Glass, 727 So.2d 1147 (Fla. 5th DCA 1999).
Florida Rule of Judicial Administration 2.160(f) requires that motions to disqualify be ruled on promptly. The rule provides that "[i]f the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action. If any motion is legally insufficient, an order denying the motion shall immediately be entered." Fla. R. Jud. Admin. 2.160(f) (emphasis added).
In the instant case, the trial judge was made aware of the motion but failed to rule on it for approximately seven weeks. This is inconsistent with the requirement that the trial court rule immediately. "The rule recognizes that prompt rulings promote public confidence in the impartiality of the trial judge while delayed rulings not only slow the litigation process but call into question the trial judge's motives."Anderson, 727 So.2d at 1147. A seven week delay is simply too long and unnecessarily prolongs the litigation.
We are aware that the Third District Court of Appeal disagrees with the Anderson decision, and has expressed the view that a judge might require significant periods of time to perform legal research or consider memoranda. See Tarrant v. Jacoboni, 780 So.2d 344 (Fla. 3d DCA), rev. granted, Tableau Fine Art Group v. Jacoboni, 796 So.2d 538 (Fla. 2001). We see two problems with that view. First, it fails to give effect to the rule's mandate that the judge rule "immediately". Second, a motion for recusal is not the sort of issue that involves complex concepts and is not likely to generate extensive memoranda. It does not involve fact-finding and most judges consider that conducting a hearing on such a motion is, at best, useless and, at worse, ill advised. Timeliness and legal sufficiency are pretty much all that is involved.
We are likewise troubled by the remedies suggested in Tarrant: either send a gentle reminder to the judge or apply for a writ of mandamus. Neither of these is a burden that should be placed on the movant. The rule places the burden on the judge to rule immediately and the litigant should not be required to nudge the judge. Nor is it right to require a party to file a petition for writ of mandamus. The Anderson panel recognized that once the judge has placed a movant for disqualification in the position of having to file a petition for writ of mandamus just to get a ruling on the motion, the loss of confidence in the fairness of the trial judge is irreparable.
We further observe that contrary to the concurring opinion herein,Anderson did not impose a rigid thirty-day rule. In Anderson we simply concluded that based on the circumstances, the trial judge's ruling more than thirty days after the court took the motion under advisement was too long. As for Tarrant, it is unclear when the motion was filed. We do know that, for some reason, a hearing on the motion was held and that there was no ruling for some fifty-one days after that. On the face of it,Tarrant and Anderson would conflict. It may simply be, however, that the record in Anderson revealed no rational basis for delay, whereas inTarrant, the court found some rationale for a fifty-one day delay after the hearing on the motion. Nothing in Anderson suggests that there are no circumstances (like heart attack, long trial, vacation, fire or pestilence) that would excuse a greater than thirty-day delay in ruling but, in Anderson, none was made to appear. In the case now before us, the motion to disqualify was filed on August 13. Two days later, the trial judge was given a copy of petitioner's written waiver of hearing and request for an immediate ruling. When none was forthcoming after thirty days, this petition for writ of prohibition was filed. Some two weeks after the filing of the petition, on September 28, the lower court denied the motion as legally insufficient. There are no circumstances appearing on this record excusing the trial court's failure to follow the rule.
PETITION FOR WRIT OF PROHIBITION GRANTED.
COBB and GRIFFIN, JJ., concur.
ORFINGER, R. B., J., concurs and concurs specially with opinion,
I concur with the court's opinion because I am constrained to followAnderson v. Glass, 727 So.2d 1147 (Fla. 5th DCA 1999), wherein we adopted a "thirty-day rule or be disqualified" interpretation of Florida Rule of Judicial Administration 2.160(f). While I agree with Anderson that "prompt rulings [on disqualification motions] promote public confidence in the impartiality of the trial judge," I do not believe that a thirty-day bright line test is either authorized by the rule or necessary.
Anderson, 727 So.2d at 1147.
The Third District Court of Appeal certified conflict withAnderson in Tarrant v. Jacoboni, 780 So.2d 344 (Fla. 3d DCA), rev. granted, Tableau Fine Art Group v. Jacoboni, 796 So.2d 538 (Fla. 2001). The Tarrant court rejected our "thirty-day rule or be disqualified" interpretation of Rule 2.160(f).
In Anderson, we emphasized that trial judges must rule immediately on motions for disqualification. While I recognize that delayed rulings on such motions potentially slows litigation, I also recognize that there are circumstances, such as illness, military commitments and judicial education that may account for the delay. Our bright line thirty-day rule does not take such circumstances into account. The mechanical application of our interpretation of Rule 2.160(f) is particularly troubling in this case because I think the petition for disqualification is legally insufficient. I see no good reason why a trial judge's delay in ruling on an otherwise legally insufficient motion should cause the trial judge to be disqualified, unless the delay is so unreasonably long that it calls into question the judge's motives. That is certainly not the case here.
A motion to disqualify must be decided by the judge to whom the motion is directed. Roy v. Tomlinson, 639 So.2d 1112 (Fla. 1st DCA 1994). Accordingly, a judge who is ill or on military leave could be disqualified in any number of cases if the judge can't rule on the motion within thirty days.