Certifying questions to the Florida Supreme Court: what's so important?

• Author: Cantero, Raoul G., III

So you receive the decision in the mail, and the only laudable thing about the opinion is that one was written. You scour the opinion for some rule of law, some fact that the panel overlooked. You find none. You then review the opinion again, this time trying to identify some basis for conflict with another district court of appeal. You come up empty. Once again, the panel outsmarted you. The opinion pretermits any possible avenue for further review. But suddenly a grin creeps over your face, and you sit there looking like the Grinch just before Christmas. This case, of course, presents an issue of great public importance!

The Florida Supreme Court possesses discretionary jurisdiction over cases that "pass upon a question certified to be of great public importance. (1) But what questions are of "great public importance"? The answer is elusive.

Before you draft that motion for certification, you may want to consider your chances of having such a question certified. Discerning a court's reasons for certifying a question as one of great public importance is not easy. Most opinions do not discuss the reasoning behind the certification; much less do they discuss their reasons for denying it. Some cases, however, do offer a glimpse into the reasoning process. This article discusses some of the major reasons courts have articulated for certifying a question of great public importance. It is designed not as a scientific survey, but as a means to help lawyers better estimate whether their cases present certifiable questions.

One apparent requirement for certification is that the answer to the question will benefit more parties than simply the present litigants. (2) A mere conviction that the Florida Supreme Court should hear the case will not suffice. (3) As one judge heatedly put it, "It will simply not do to say that an issue is of `great public importance' just because, for reasons which may be worthy but are not reflected in the constitution, it is thought that the Supreme Court should hear the case. The end does not justify the means even in questions of appellate review. (4) Other judges have chastised a majority opinion for certifying unimportant issues: "If the majority members of this court are interested in revising [the statute], then they should contact their legislative representatives rather than send a bogus issue to the Florida Supreme Court." (5) Still other judges have argued that some issues are too important for certification and should be left to the legislature. (6)

It also seems self-evident that an issue of "great public importance" must mean importance throughout the state, not just in a single geographic area. (7) Courts of appeal can always hear or rehear cases en banc that are of "exceptional importance." It would seem, therefore, that issues which arguably may be of "great public importance," but nevertheless are limited in their reach to the jurisdiction of a particular appellate district, are more appropriate for en banc consideration by that district court than for certification to the Florida Supreme Court.

One thing is clear, however: Under the rule as amended in 1980, the issue need not be of great public interest, but only of great public importance. (8) The distinction is deceptively crucial. The rule formerly allowed review of questions certified to be of "great public interest," but was changed in 1980 out of recognition that some legal issues may have "great public importance" but may not be sufficiently known to generate "great public interest. (9)

Important Issues with Far-reaching Consequences

One common reason for certification is that the question involved may have far-reaching consequences. This, of course, begs the question of what issues have "far-reaching consequences." In some cases, the consequences are quite obvious. For example, in Smith v. State, 497 So. 2d 910 (Fla. 3d DCA 1986), the issue was whether the trial court's standard instruction concerning the burden of proof on the insanity defense, which the Supreme Court subsequently held reversible error, constituted fundamental error. The court of appeal certified the question because of the "far-reaching possible consequences" of a holding that would expose many previously final criminal convictions to collateral attack. (10)

Other examples offer further guidance. In one case, the court certified the question because the issue could "potentially affect[] thousands of mortgages in the state." (11) Another court, in certifying a question involving a county's challenge to the constitutionality of a statute, "[r]ecogniz[ed] the impact of Florida's Growth Management Act upon county governments and the state." (12) Yet another "recognize[d] the ever increasing need for new school facilities caused by the rapid development in this state and the budgetary problems faced by school boards throughout the state...." (13) Other cases present similar specific questions with important statewide consequences. (14)

Some courts are more vague in certifying questions on this ground, stating that they do so because the court could "foresee the potentially broad ramifications of this issue...." (15) Exactly what issues have far reaching consequences, however, can be a matter of debate. (16)

Cases of First Impression

Another popular basis for certification is that the case presents an issue of first impression. The Florida Supreme Court has recognized that the certification function of the district courts of appeal "is particularly applicable to decisions ... of first impression...." (17) Despite this statement, certification of a decision because it is one of first impression can be controversial. At least one judge has objected to certification on this basis, arguing that the court "should not and, indeed, may not pass the buck to the Supreme Court merely because a particular case is difficult or one of first impression." (18) Thus, that a case presents an issue of first impression in this state would not in itself seem to establish a question of great public importance. One can think of many esoteric questions, of no particular relevance in other cases, that no Florida court has decided.

Some cases base the decision to certify solely on this ground. (19) Others do not expressly certify on this ground, but note that the case presents an issue of first impression, and later certify the question with no stated reason, thus implying that at least a tacit basis for the certification was that the issue was one of first impression. (20) Cases certifying on this ground may also articulate other bases for certification. (21)

Issues That Arise Frequently

Another ground for certification is that an issue has arisen frequently or may arise frequently in the future. Several courts have certified questions on this ground. (22) For example, in Ordini v. Ordini, 701 So. 2d 663,666 (Fla. 4th DCA 1997), the court certified the question of whether "income" for purposes of child support includes gifts from family members, certifying in part because "the cases in which adult children are regularly receiving assistance from parents are probably going to become more frequent, because the opportunity to earn and save substantial sums is not the same for this generation, as it was for the last." As with cases certifying issues of first impression, however, cases certifying issues that arise frequently also generally assert other grounds as well. (23) Therefore, although the fact that an issue arises frequently may constitute some evidence that it is an issue of great public importance, it may not be enough, standing alone, to obtain certification of a question.

Unclear Case Law

Another major reason for certifying a question as one of great public importance is unclear or confused case law. (24) For example, in Hastings v. Demming, 682 So. 2d 1107 (Fla. 2d DCA 1996), the Second District certified a question concerning appeals from orders determining entitlement to workers' compensation immunity. (25) The court noted the "conflicting manner" in which courts, even within the same district, had resolved the jurisdictional problem associated with the rule. (26) Also, in In re Estate of Tolin, 594 So. 2d 309 (Fla. 4th DCA 1992), the dissent argued that the question concerning the destruction of a will should be certified because "[t]he case law is unclear, one case holding that destruction of a carbon copy is effective, and another case holding that destruction of a conformed copy is not." (27) On rehearing, the panel members agreed to certify the question. (28)

Some cases have certified questions of great public importance even though the court noted conflict with another case. (29) These cases do not explain why certification was granted on the basis of a question of great public importance rather than a conflict, which is another ground for Florida Supreme Court jurisdiction. Certification for either reason, however, affords the Florida Supreme Court discretionary jurisdiction, and the Supreme Court liberally accepts jurisdiction over certified questions regardless of the basis for certification. The court certifying the question may, however, want to frame the issue in the Supreme Court, and answer the question itself elsewhere in its opinion. (30) Moreover, in a few cases where the Florida Supreme Court has accepted (or reserved a determination of) jurisdiction based on certified conflict, upon reviewing the case the court determined that in fact no conflict existed, and therefore dismissed the appeal for lack of jurisdiction. (31) Certification of a question avoids that risk.

Perhaps with this danger in mind, some cases have certified questions of great public importance where conflict with other cases was debatable or only implied. This was most apparent in Hillsborough County Aviation Auth. v. Hillsborough County Governmental Employees Ass'n, 482 So. 2d 505, 509 (Fla. 2d DCA 1986), in which the court emphasized that because the conflict...