Jurisdiction creep and the Florida Supreme Court.

• Author: Marks, Thomas C., Jr.

The Court of Appeals of Wisconsin has divided appellate courts into two categories, "error correcting" and "law declaring." (1) This difference appears to concern the jurisdiction of the two types of appellate courts. The "law declaring" court is the highest state court and its jurisdiction is limited to important questions of law. (2) In deciding cases within this limited jurisdiction, the "law declaring" court may correct errors, but its "error correcting" function is only incidental to its "law declaring" function. (3) The "error correcting" court hears appeals from trial courts and its decisions are final unless the issue before it was within the limited jurisdiction of the "law declaring" court above it in the judicial hierarchy. (4)

Prior to the creation of the district courts of appeal, by constitutional amendment, in 1956, the Florida Supreme Court functioned both as a "law declaring" court and an "error correcting" court. (5) Since the supreme court heard appeals as a matter of right from Florida's principal trial courts--the circuit courts--it was an "error correcting" court. (6) However, because the supreme court had the final say as to the meaning of Florida law, especially Florida constitutional law, it also functioned as a "law declaring" court. (7)

When the district courts of appeal set up shop in early 1957, the intent was that, with few exceptions, (8) the Florida Supreme Court would be a "law declaring" court only. (9) In most instances, the new district courts of appeal were to be the "error correcting" courts for the circuit courts (the state's principal trial courts). (10)

The new, and very limited role for the Florida Supreme Court, was set out in the Florida Constitution:

Appeals from trial courts may be taken directly to the supreme court, as a matter of right, only from judgments imposing the death penalty, from final judgments and decrees directly passing upon the validity of a state statute or a federal statute or treaty, or construing a controlling provision of the Florida or federal constitution, and from final judgments or decrees in proceedings for the validation of bonds and certificates of indebtedness. The supreme court may directly review by certiorari interlocutory orders or decrees passing upon chancery matters which upon a final decree would be directly appealable to the supreme court. In all direct appeals and interlocutory reviews by certiorari, the supreme court shall have jurisdiction as may be necessary to complete determination of the case on review. Appeals from district courts of appeal may be taken to the supreme court, as a matter of right, only from decisions initially passing upon the validity of a state statute or a federal statute or treaty, or initially construing a controlling provision of the Florida or federal constitution. The supreme court may review by certiorari any decision of a district court of appeal that affects a class of constitutional or state officers, or that passes upon a question certified by the district court of appeal to be of great public interest, or that is in direct conflict with a decision of another district court of appeal or of the supreme court on the same point of law.... (11) The Florida Supreme Court was quick to recognize the huge change in its status. In 1958, the supreme court "pointed out that under the constitutional plan the powers of this Court to review decisions of the district courts of appeal are limited and strictly prescribed." (12) At almost the same time, it began to lay the groundwork to undermine its new role.

In Lake v. Lake, (13) the supreme court was, for the first time, (14) faced with a petition asking it to review a "per curiam affirmed" decision not supported by a written opinion. (15) The petitioner before the supreme court argued that the facts of Lake were "very similar" to the facts of an earlier supreme court case; however, here the decision of the district court of appeal apparently differed. (16) Thus, so the argument went, conflict jurisdiction existed. (17) In facing this question of first impression, (18) the supreme court reiterated, "[the district courts of appeal] are and were meant to be courts of final, appellate jurisdiction." (19) After stating the basis for conflict jurisdiction, (20) the supreme court then opined:

It is another matter, however, for the Supreme Court to dig into a record to determine whether or not a per curiam affirmance by a district court of appeal conflicts with the interpretation the petitioner's counsel has placed upon former decisions in advancing his client's cause. By such procedure the safeguard intended by the pertinent provision would be distorted so that a suitor who had had one day in the appellate court would have a second. (21) The supreme court then continued when it should have stopped:

There may be exceptions to the rule that this court will not go behind a judgment per curiam, consisting only of the word "affirmed" which does not reflect a decision that would interfere with settled principles of law, rendered by a district...