Certiorari review of nonfinal orders: does one size really fit all? Part I.

• Author: Altenbernd, Chris W.
• Position: Appellate Practice

In a bygone era, astronauts tried to convince the world that Tang tasted better than real Florida orange juice (1) and designers toyed with "one-size-fits-all" clothing --the results of which were occasionally risque and often dissatisfying. The use, by Florida's district courts of appeal, of a single three-prong test based on a "departure from the essential requirements of the law" to resolve the wide array of issues presented by common law certiorari has produced similarly dissatisfying results.

In this article, the authors suggest that, as applied to nonfinal orders in pending circuit court cases, the current three-prong test is inherently unpredictable because it contains no objective standards and often requires each judge to inject his or her own unstated policies into these proceedings. Despite its best efforts, the Florida Supreme Court has proven that it cannot make this test more predictive by issuing additional case law discussing the overall application of this subjective test. Because attempts to clarify the current test have simply muddied the certiorari waters, lawyers should encourage the courts to restate the description of common law certiorari as applied to nonfinal orders in more functional language. A "functional" restatement would consider both the legitimate reasons for restricting appellate court interference into ongoing trial court cases and the practical reasons that such interference is occasionally warranted. Rather than overflowing with flowery adjectives, a functional restatement would articulate the standard for certiorari review of a nonfinal order in terms that have some hope of being measured by reason, logic, and common experience.

Once the courts provide such a functional restatement, its underlying policies should be applied in specific contexts. For example, the case law could separately address: 1) orders denying motions to dismiss; 2) orders granting discovery; 3) orders denying discovery; and 4) orders excluding state witnesses or evidence in criminal cases. As the courts encounter petitions for certiorari review of each type of nonfinal order, they could create precedent announcing narrower, functional tests for use only in that context, with a view toward helping lawyers decide whether to pursue a certiorari proceeding in a district court. The authors believe that such an approach would not significantly alter the historic scope and use of the writ; rather, it would simply make the true decision-making process more uniform, more transparent, and more easily understood by both lawyers and judges.

This article will be published in two parts. In this part, we briefly explain the relatively recent emergence of the current three-prong test and the difficulty the courts have had controlling it. We poke a little fun at the word games the courts have played in an attempt to sound constrained while reaching the desired outcome in these proceedings, then we briefly suggest a rough outline of a possible functional restatement.

In the next edition of this article, we will experiment with several varieties of nonfinal orders that are often challenged by common law certiorari to see if we can suggest context-specific tests that would be more predictive than the current universal three-part test. We hope that this short article will spirit debate and perhaps result in an entire law review discussion of this important jurisprudential topic in much greater depth.

A Brief History

We like to think our law is old and immutable. Really "good" law, we presume, must derive from a foundation that extends to the misty moorlands of medieval England. Common law certiorari is not brand new, and our English predecessors did create it. (2) But the truth is that Florida's approach to common law certiorari is neither old nor immutable.

Although not an extraordinary writ, (3) common law certiorari is often referred to as an extraordinary remedy, (4) and perhaps rightly so, given that the phrase "common law certiorari" appears in Florida case law only four times before 1929 and only 35 times between 1929 and July 1957. Since the Florida Legislature created the district courts of appeal as intermediate appellate courts, (5) common law certiorari has rapidly evolved from an uncommon remedy to a routinely invoked, albeit often misunderstood, tool of review. "Common law certiorari" has appeared in Florida case law 1,090 times since the emergence of the district courts. (6)

Valeria Hendricks correctly states the current three-prong test used in certiorari review of nonfinal orders in "Writ of Certiorari in Florida" in

Florida Appellate Practice. (7)

The standard of review in a certiorari proceeding involving nonfinal orders requires that

* The order constitute a departure from the essential requirements of the law;

* The order cause material injury throughout subsequent proceedings; and

* The injury be one for which there will be no adequate remedy after final judgment.

This test is sometimes attributed to Haines City Community Development v. Heggs, 658 So. 2d 523 (Fla. 1995). In that case, Justice Anstead provided an excellent discussion of the confusing history of certiorari in Florida. But Heggs addressed secondtier review of circuit court appellate decisions. The test for nonfinal orders can probably be traced to Kilgore v. Bird, 6 So. 2d 541 (Fla. 1942). Kilgore involved a party's attempt to avoid answering interrogatories, which at that time were authorized by statute. The Supreme Court ultimately required the...