TIME WARNER ENTERTAINMENT COMPANY, L.P., Petitioner, v. Hon. Joseph P. BAKER, Circuit Court Judge, etc., Respondent, 647 So. 2d 1070

THOMPSON, Judge. The defendant in the underlying case, Time Warner Entertainment Co., L.P. (“Time Warner”), petitions for a writ of prohibition. Time Warner provides cable service for the plaintiffs below, Margo Mauldin and Brian E. Cooley. The plaintiffs sued Time Warner both on an individual basis and as members of a class. Among other claims, the plaintiffs charged Time Warner with unfair and deceptive trade practices. The claims arose from the change in the Federal Communications Commission’s [FCC] regulations which took effect 1 September 1993.

The FCC regulations were intended to re-duee the rates for those customers served by a cable system not deemed to have effective competition. In response to the new regulations, Time Warner changed its system. Under its new system for basic service, Time Warner provided the standard 13 channels regulated locally, plus approximately 25 other channels regulated by the FCC. However, Time Warner made 3 channels previously available under the basic service — WTBS, WGN, and AMC — “a la carte” channels which were available for an extra $3 a month.

The plaintiffs claimed they were charged for these channels unless they affirmatively opted out, and they claimed they were not told that they could opt out. At a pre-trial hearing held on 7 October 1994 on the case, the respondent, Judge Joseph P. Baker, pursuant to Florida Code of Judicial Conduct, Canon 3A(4), informed the parties that he had spoken to Professor Michael Flynn of Nova University about the case.

That canon allows a judge to “obtain the advice of a disinterested expert on the law applicable to a proceeding before [the judge] if [t]he [judge] gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.” Fla. Code Jud.Conduct, Canon 3A(4). Judge Baker indicated he might discuss the case with Professor Flynn in the future.

Time Warner looked into Professor Flynn’s background and found that he had “served as chief of the Consumer and Business Affair Practices Division for the Attorney General of the State of Washington,” and “authored several articles in the consumer affairs field adopting a pro-plaintiff perspective.” Time Warner’s counsel, Howell Melton, wrote a letter to Judge Baker on 14 November 1994, suggesting the Judge should cease any further communication with Professor Flynn and asking him to transfer the case.

Time Warner’s counsel questioned whether Professor Flynn was a “disinterested expert” in light of his pro-consumer and, hence, pro-plaintiff stance. Judge Baker responded to Time Warner with a three page letter of his own dated 17 November 1994. He wrote that, in accordance with Florida Code of Judicial Conduct, Canon 3A(4), he routinely tells the parties about people he knows who have special experience and with whom he might discuss a case. Judge Baker said although he had spoken to Professor Flynn, he did not ask the professor’s advice on the case because he had already made his ruling.

Judge Baker said he had also told Professor Flynn he was writing an opinion, and the professor indicated he would be interested in reading it. Judge Baker stated he remained impartial in the case and said the very things that made Professor Flynn an expert were the things that Time Warner believed disqualified him as an expert. Time Warner thereafter moved to disqualify Judge Baker from the case on the basis of bias. Judge Baker denied the motion without comment on 30 November 1994. Time Warner then petitioned for a writ of prohibition. We deny the writ.

We make these observations before discussing the writ pending before us. First, we have jurisdiction. A writ of prohibition is the proper procedure for appellate review to test the validity of a motion to disqualify. Mangina v. Cornelius, 462 So.2d 602 (Fla. 5th DCA 1985); Hayslip v. Douglas, 400 So.2d 553, 555 (Fla. 4th DCA 1981). Second, a review of the file indicates that Time Warner has not complied with Florida Rules of Judicial Administration 2.160 for the disqualification of trial judges.

Section 38.10, Florida Statutes (1993), gives Time Warner the substantive right to seek disqualification of Judge Baker, however, Florida Rules of Judicial Administration 2.160 sets forth the procedure to be followed. See Brown v. St. George Island, Ltd., 561 So.2d 253 (Fla.1990) (the statute creates the substantive right, but the process of disqualification is procedural and the procedures are governed by the rules of procedure). Time Warner’s motion was untimely filed although, in other respects, it complied with the specific requirements of Florida Rules of Judicial Administration 2.160(c) .

The motion was required to be filed 'within a maximum of 10 days after Time Warner became aware of the facts which constituted the grounds for disqualification. Fla.R.Jud.Admin. 2.160(e). Time Warner became aware of Judge Baker’s consultation with Professor Flynn on 7 October 1994. Time Warner did not file its motion until 23 November 1994. Finally, the only basis for the disqualification of Judge Baker was that he was biased because of his communication with Professor Flynn.

Time Warner alleges that they will not get a fair and impartial trial from Judge Baker because “of bias or prejudice of the judge” because of the communication. See Fla.R.Jud.Admin. 2.160(d)(1). Florida Code of Judicial Conduct, Canon 3A(4) does not prohibit judges from consulting with “a disinterested expert” as long as the judge gives notice to the parties and allows them a reasonable opportunity to respond. Canon 3 does not require, nor has any Florida case been brought to our attention, which suggests that a judge must give notice prior to the communication with the expert. Fla.Code Jud.Conduct, Canon 3.

A review of Canon 3A(4) requires the judge to advise the parties of who the disinterested expert is “and the substance of the advice” the disinterested expert gave. Id. Read literally, the notice must follow the consultation and not precede the consultation. The record is uncontroverted that Judge Baker did give all of the parties an opportunity to respond. Judge Baker complied with Canon 3. Id.

Even a case relied upon by Time Warner to support its position, does not condemn the practice of judges consulting with disinterested experts, but suggests caution on the part of judges if they do consult with disinterested experts. See Matter of Fuchsberg, 426 N.Y.S.2d 639, 647 (N.Y.Ct.Jud. 1978). Once armed with this information, and after investigating the credentials and former employment of Professor Flynn, Time Warner objected to Judge Baker speaking with the expert because of his previous employment.

The argument raised is that Professor Flynn is not a disinterested expert because he has authored articles which “adopt a pro-consumer prospective”. This objection was in the form of a letter to Judge Baker by Mr. Melton on 14 November 1994. Judge Baker responded with a letter of his own. Unfortunately, the overall tone of his letter is indicated by the opening paragraph: I read your letter of November 14, Mr. Melton.

I think I got the message — any judge who associates with a law school professor who has been a consumer advocate and acted as an attorney general’s chief enforcement officer of business fair practices cannot be expected to think much of Time Warner’s business practices! Did I get that right? Shortly after receiving Judge Baker’s letter, Time Warner moved to disqualify Judge Baker. Judge Baker denied the motion without additional comment. Although the tone of Judge Baker’s letter was pointed, it does not support a writ of prohibition and in fact is not the basis for disqualification raised by Time Warner.

The only basis raised is the putative ex parte communication between Judge Baker and Professor Flynn. Had Judge Baker commented upon the motion to disqualify other than finding that it was legally insufficient, the writ would be granted. Bundy v. Rudd, 366 So.2d 440, 442 (Fla.1978). Since Florida Code of Judicial Conduct, Canon 3A(4) allows a judge to consult with a disinterested expert as long as the matter is reported to the parties so they can have a reasonable time to respond, the basis for the motion for disqualification is not a judicially cognizable basis for bias or prejudice.

A trial judge cannot be biased or prejudiced because the judge complies with the Florida Code of Judicial Conduct. We deny the writ because the motion for disqualification was not filed timely and even if filed timely, the allegations for disqualification are not judicially cognizable. WRIT DENIED. GOSHORN, J., concurs. DAUKSCH, J., dissents, with opinion. . Rule 2.160(

c) reads in pertinent part: A motion to disqualify shall be in writing and specifically allege the facts and reasons relied on to show the grounds for disqualification and shall be sworn to by the party by signing the motion under oath or by a separate affidavit. The attorney for the party shall also separately certify that the motion and the client’s statements are made in good faith. Fla.R.Jud.Admin. 2.160(c).