Common law writs - from the practical to the extraordinary.

AuthorReiter, Jack R.
PositionFlorida

Under Florida law, unless an order completely disposes of judicial labor on a claim or falls within the narrow, enumerated categories of appealable nonfinal orders, a litigant must wait until a case is over before obtaining the right to appeal. In some circumstances, however, certain orders subject a litigant to irreparable harm and require immediate review. Perhaps a trial court has ordered immediate disclosure of materials protected by attorney-client or trade secret privileges, or denied a motion to dismiss a premature claim for punitive damages or a motion to disqualify. In such instances, and others, a litigant may be able to obtain immediate review and issuance of a common law writ, which is ingrained in our common law tradition and has evolved with our judicial framework. Understanding the general principles governing common law writs provides a litigant with unique tools that are both practical and extraordinary. (1)

Original Proceedings Described in Rule 9.100

Florida Rule of Appellate Procedure 9.100 describes the courts' original jurisdiction to issue common law writs. The rule identifies writs of mandamus, prohibition, quo warranto, certiorari, habeas corpus, and all writs necessary to the complete exercise of the courts' jurisdiction. Each of these writs warrants individual discussion, but certain general principles are universally applicable. An original writ proceeding is initiated by filing a petition directly within the appellate forum, with the appropriate filing fee, rather than by filing a notice of appeal in the lower tribunal. Fla. R. App. P. 9.100(b). In many cases, this shortens the time frame for preparing necessary materials for seeking review because certain extraordinary writ petitions must be filed within 30 days following rendition of the challenged order. (2) Because the clerk does not transmit a record in writ proceedings, parties wishing to include record materials must file an appendix with the petition. Fla. R. App. P. 9.100(i) & 9.220.

Unlike an appellate proceeding, the party seeking a writ is identified as the petitioner and all other parties as respondents. Fla. R. App. P. 9.100(b). Neither the trial court nor other decision-making body should be named as a respondent. Fla. R. App. P. 9.100(c)(4). Furthermore, a respondent should not respond to an original writ petition unless the court issues an order to show cause or otherwise requires a response. Fla. R. App. P. 9.100(e)(3) & (h). (3) Once a response is served, the petitioner has 20 days to serve a reply and supplemental appendix, if any. Fla. R. App. P. 9.100(k). An original petition dispenses with many of the stylistic requirements for an appellate brief, such as tables of contents and authorities; however, a petitioner and respondent must adhere to the font, page size, and page limit requirements and provide certificates of service and typeface compliance. Fla. R. App. P. 9.100(1). (4)

Jurisdiction

* Florida Supreme Court

Prior to 1957, the Florida Supreme Court was the sole court of review. (5) In 1957, the Florida Constitution was amended to create the district courts of appeal, but the Florida Supreme Court retained its discretionary authority to issue the common law writ of certiorari to review district court decisions. The intent of the 1957 amendment, however, was to curtail Florida Supreme Court review. As one court explained, "the [1957] amendment was intended to define and confine the powers and jurisdiction of the Supreme Court in order to avoid the danger of the district courts of appeal becoming way stations on the road to the Supreme Court." State v. G.P., 429 So. 2d 786,788 n.6 (Fla. 3d DCA 1983), approved, 476 So. 2d 1272 (Fla. 1985); Fla. Const. art. V, [section] 4(b)(2).

In 1980, another constitutional revision eliminated the Florida Supreme Court's certiorari review, while maintaining its authority to issue writs of prohibition to lower courts and writs of mandamus and quo warranto to state officers and agencies. (6) The court also retained its inherent power to issue writs of habeas corpus and all writs necessary to the complete exercise of its jurisdiction.

* District and Circuit Courts

District courts have the authority to issue writs of certiorari to review (A) nonfinal orders of lower tribunals other than those set forth in Rule 9.130 and (B) final orders of circuit courts acting in their review capacity. Fla. Const. art V, [section] (b)(3); Fla. R. App. P. 9.030(b). Circuit court jurisdiction to issue common law writs is also established by the Florida Constitution and outlined in Rule 9.030(c). (7) Circuit courts in their review capacity can issue common law writs to review nonfinal orders of lower tribunals other than those identified in Rule 9.130. Circuit courts also possess the authority to review quasi-judicial decisions of local governments or agencies not governed by the Administrative Procedure Act. Fla. R. App. P. 9.030(c)(2) & 9.100(c).

Certiorari

Certiorari is clearly the most versatile writ. As the Florida Supreme Court explained, "The writ [of certiorari] functions as a safety net and gives the upper court the prerogative to reach down and halt a miscarriage of justice where no other remedy exists.... The writ is available to obtain review in such situations when no other method of appeal is available." Broward County v. G.B. V. Int'l, Ltd., 787 So. 2d 838, 842 (Fla. 2001) (citing Degroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957)). (8) A proverbial jack-of-all-trades, the writ of certiorari fulfills distinct roles in different forums, and its scope changes depending upon the procedural circumstances. On one hand, the writ offers a discretionary mechanism for reviewing a nonfinal order, yet it also provides a method for reviewing, as a matter of right, a final order issued by an administrative agency or local government authority acting in a quasi-judicial capacity.

A petition for a writ of certiorari must include the basis for invoking the jurisdiction of the court, facts on which the petitioner relies, nature of the relief sought, and argument in support of the petition and appropriate citations of authority. Fla. R. App. P. 9.100(g). As noted above, certiorari is governed by a strict, 30-day filing deadline that is jurisdictional. Fla. R. App. P. 9.100(c)(1). A motion for rehearing challenging a nonfinal order will not...

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