Original Proceedings, Part III: To seek or not to seek Prohibition – Temperance is Suggested

Stop! Have you ever wanted to say this before a trial judge rules? Most of the time, this is probably not a good idea. Generally, appellate review of trial court decisions is available only after a ruling is made. This post discusses the limited circumstances where a party may consider filing a petition for a writ of prohibition to prevent a lower tribunal from taking action. Because the remedy is “very narrow in scope, to be employed with great caution and utilized only in emergencies” (English v. McCrary, 348 So. 2d 293 (Fla. 1977)), it is important for practitioners to understand the purpose of prohibition and make reasoned judgments about when it is —and is not— appropriate to seek a writ of prohibition.

Prohibition is an original proceeding whereby a superior court may prevent an inferior court or tribunal from acting without jurisdiction.  Under the Florida Constitution, the Supreme Court, the DCAs and the circuit courts have jurisdiction to issue writs of prohibition; it is typically appropriate to file a petition for a writ of prohibition in the court that has ‘direct appeal’ jurisdiction over the inferior tribunal, although there are special considerations associated with agency proceedings.  Like other original proceedings, prohibition is governed by Florida Rule of Appellate Procedure 9.100.  There is no jurisdictional time limit for filing a petition for writ of prohibition, but timeliness is key. If the reviewing court issues a show cause order, proceedings in the lower tribunal are automatically stayed.  Fla. R. App. P. 9.100(h).

In civil cases in Florida state courts, prohibition may be appropriate in two narrow settings.  The first is to prevent the court from acting without jurisdiction. For example, a DCA can issue a writ of prohibition preventing a circuit court from ruling on an untimely motion for rehearing (see Rosenbloom v. Guardianship of Schleider, 876 So. 2d 1244 (4th DCA 2004)), or to prevent adjudication of a dispute where subject matter jurisdiction is exclusively within the federal court. See DHL v. Grupp, 60 So. 3d 426 (Fla. 1st DCA 2011). The second is to review denial of a motion to disqualify a trial judge. See Mackenzie v. Super Kids, 565 So. 2d 1332 (Fla. 1990); Sutton v. State, 975 So. 2d 1073, 1076-77 (Fla. 2008).

Prohibition is extraordinary and discretionary, and the writ will only issue in emergency cases to prevent impending injury where there is no other appropriate and adequate legal remedy.  Mandico v. Taos, 605 So. 2d 850, 854 (Fla. 1992).  Prohibition is not a proper way to question whether the trial court’s exercise of subject-matter jurisdiction is erroneous (e.g., where a determination of jurisdiction depends on facts alleged in a complaint) or to divest the lower tribunal of jurisdiction to determine the question of its own jurisdiction (e.g., denial of a motion to dismiss in a civil case on statute of limitations grounds or where a defendant claims certain statutory types of immunity from suit). See Panagakos v. Laufer, 779 So. 2d 296 (2d DCA 1999) and Citizens  Prop. Ins. Corp. v. San Perdido, 104 So. 3d 344 (Fla. 2012). Prohibition exists only to prevent a court from acting in excess of its jurisdiction, and is not appropriate where the error or harm associated with the lower tribunal’s improper exercise of jurisdiction can be remedied on direct appeal.  The time and expense of litigating a case in which it may ultimately be determined that the trial court lacked subject matter jurisdiction does not constitute “injury” for which appeal is not an adequate remedy. Naghtin v. Jones, 680 So. 2d 573 (Fla. 1st DCA 1996), Haridopolos v. Citizens for Strong Schools, 81 So. 3d 465 (Fla. 1st DCA 2012).

Prohibition is an extraordinary remedy for extraordinary circumstances. Use caution and be temperate in deciding whether to recommend and pursue it.

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