District Court Review of Mandamus Proceedings in Land-Use Litigation: Certiorari or Appeal?

• Date: 01 May 2020
• Author: Woodlee, John G.

Imagine you find yourself in the following position. You represent a real estate developer who has been denied approval for a project by a local government. The developer previously challenged the local government's decision in state circuit court, seeking both a writ of mandamus ordering the local government to approve the project and, alternatively, a writ of certiorari quashing the decision withholding that approval. (1) The circuit court has just denied the relief requested by the developer. Now you've been hired to challenge the circuit court's decision in the district court of appeal. You face questions: How do you invoke the district court's jurisdiction? Do you file a notice of appeal in the circuit court? Or do you file a petition for certiorari, or perhaps for some other extraordinary writ, in the district court?

The answers matter. If review of the circuit court's decision is by certiorari, then to overturn that decision, you have to show that the circuit court failed either to "afford[] procedural due process" or to "apply the correct law." (2) Your only appellate remedy, if you manage to make such a showing, is an order quashing the circuit court's decision. (3) On certiorari review, a court may not "direct[] that any particular action be taken" by the lower tribunal. (4) Review by appeal, on the other hand, is not subject to that limitation. (5)

You have little time to choose the appropriate vehicle for district court review. (6) If an appeal is the proper vehicle, you can prepare your initial brief at an unhurried pace. The notice of appeal is due within 30 days of rendition of the circuit court's order, (7) but you have another 70 days after that to file your initial brief. (8) But if certiorari is the proper vehicle for review, you had better start writing. Your petition--complete with "argument in support of the petition and appropriate citations of authority" (9)--is due within 30 days of the rendition of the circuit court's order. (10) And neither the circuit court nor the district court can extend that deadline, (11) although certain motions may toll rendition of the circuit court's order. (12)

On the one hand, if you only want to challenge the portion of the circuit court's order that denies certiorari, the choice is easy. You file a petition for certiorari with the district court. (13) If, on the other hand, you want to challenge the portion of the circuit court's order that denies mandamus, the way forward is less clear. This article attempts to provide some clarity. The caselaw on this question is not entirely consistent. Some cases seem to suggest that a circuit court order denying mandamus is always reviewed by appeal; (14) others suggest that review is by certiorari. (15) The guiding principle, however, is that wherever circuit court proceedings function as an appeal--regardless of whether the remedy sought in that forum is mandamus, certiorari, or something else--the circuit court's decision is reviewable only by certiorari. Although the application of that principle does not always yield an obvious answer, a mandamus petition challenging a local land-use decision most often functions as an appeal. So a party seeking review of a circuit court's ruling on such a petition will typically have to file a petition for certiorari in the district court.

The Basic Principles

The general principles that determine whether an appeal or certiorari is the appropriate vehicle for review of a circuit court's decision are articulated in Florida Rule of Appellate Procedure 9.030(b). Subsection (b)(1) of that rule authorizes district courts of appeal to "review, by appeal: (A) final orders of trial courts, not directly reviewable by the supreme court or a circuit court." (16) Subsection (b)(2), however, provides in part that "[t]he certiorari jurisdiction of district courts of appeal may be sought to review:... (B) final orders of circuit courts acting in their review capacity." (17)

The proper vehicle for district court review, thus, turns on whether, in ruling on a petition for an extraordinary writ, the circuit court acted as a "trial court" or instead "act[ed] in [its] review capacity." (18) As the Fifth District Court of Appeal explained in State v. Grate, 252 So. 3d 351 (Fla. 5th DCA 2018), in the context of a case in which it was asked to review a circuit court order denying a petition for a writ of quo warranto:

Review of extraordinary writ proceedings is permissible by direct appeal or by certiorari depending on the nature of the petition filed. If the petition for extraordinary relief is filed in the circuit court to review an order by a lower tribunal, the resulting order of the circuit court is reviewable in the district court of appeal by certiorari and not by appeal. However, when a petition for extraordinary relief initiates a new civil action in the circuit court and is not used as a method of reviewing an order of the county court or a local administrative tribunal, the final order is reviewed by appeal. (19)

In short, a party is not entitled to two appeals. (20) Consequently, an appeal to the district court is appropriate only if the circuit court proceedings did not themselves function as a vehicle for "review [of] an order by a lower tribunal." (21) If the circuit court proceedings were in substance an appeal from a judicial or quasi-judicial decision of a lower tribunal, the circuit court's decision can be reviewed only by certiorari. (22)

When the party initiating circuit court proceedings seeks only certiorari, the application of these principles is straightforward, since certiorari proceedings are always a vehicle for "review [of] an order by a lower tribunal." (23) As the Florida Supreme Court explained in De Groot v. Sheffield, 95 So. 2d 912 (Fla. 1957), "certiorari is a discretionary writ bringing up for review by an appellate court the record of an inferior tribunal or agency in a judicial or quasi-judicial proceeding." (24) Accordingly, a circuit court's decision on a petition for certiorari is reviewable in the district court only by certiorari. (25)

Mandamus as an Appellate Remedy

The application of the same principles to a circuit court's decision on a petition for mandamus is more complicated. Traditionally, mandamus has been understood as "an original proceeding," and "not an appellate writ." (26) The Florida Supreme Court has even insisted that "[m]andamus may not be employed as an appellate remedy to review the quasi-judicial action of an administrative agency." (27) Nevertheless, as that same court has recognized, mandamus has in some contexts taken on the role of an appellate remedy by which circuit courts review quasi-judicial decisions. A mandamus proceeding in a circuit court can now be either an original proceeding or, at least sometimes, an appellate proceeding. (28) The proper vehicle for district court review, thus, depends on which role the circuit court mandamus proceedings played. That the petitioner sought mandamus does not by itself resolve the issue.

Florida courts have acknowledged the use of mandamus as an appellate remedy perhaps most explicitly in the context of challenges to decisions of the Florida Parole Commission. The Florida Supreme Court's decision in Sheley v. Florida Parole Commission, 720 So. 2d 216 (Fla. 1998), is especially instructive.

In Sheley, the circuit court denied an inmate's petition for mandamus relief overturning the Parole Commission's order suspending his presumptive parole release date and declining to authorize an effective parole release date. (29) The First District Court of Appeal treated the inmate's appeal from the circuit court's ruling as a petition for certiorari and denied that petition. (30) The First District explained:

We acknowledge that if mandamus is used to initiate a new civil action in the circuit court, the resulting final order is subject to review by appeal. . . . These principles cannot be applied in the present case, however, because the petition for writ of mandamus was filed in the circuit court as an appellate remedy to review quasi-judicial action of a lower tribunal. (31)

The Supreme Court approved the First District's decision, rejecting the inmate's contention that the First District had erred in treating his appeal as a petition for certiorari. (32) The court reasoned that "once an inmate has had a full review on the merits of a Parole Commission order in the circuit court, he or she is not entitled to a second plenary appeal of the order in the district court." (33) Because the mandamus proceedings in the circuit court were in substance an appeal from the decision of a lower tribunal--the Parole Commission--the inmate could seek district court review only by certiorari.

The dual role of mandamus as both an original remedy and an appellate remedy is not always acknowledged. Even after Sheley, courts have sometimes asserted broadly--without apparent regard to whether mandamus was sought as an original or appellate remedy in the circuit court--that "[d]irect appeal is the proper vehicle for appellate review of a mandamus petition." (34) But most cases containing such statements can be reconciled with the principles established by Rule 9.030(b) and Sheley. In some such cases, mandamus does not appear to have been sought as an appellate remedy in the circuit court. (35) Some cases, perhaps, can also be explained by the principle that review of mandamus proceedings by appeal is appropriate, regardless of the original or appellate character of those proceedings, if "the circuit court proceeding is concluded on grounds other than the merits," (36) such as mootness. (37)

In sum, notwithstanding occasional statements apparently to the contrary, the state of the law after Sheley is aptly described by Judge Philip J. Padovano in his opinion for the First District Court of Appeal in Browning v. Young, 993 So. 2d 64 (Fla. 1st DCA 2008). "Mandamus is now frequently used in the circuit...