Should the narrowing scope of second-tier certiorari mandate findings of fact in local government quasi-judicial decisions?

• Author: Coller, Craig
• Position: Florida

The Florida Supreme Court has recently revisited the standard for District Courts of Appeal "second-level certiorari" review of circuit court appellate decisions. That review is limited, and considers only whether the circuit court departed from the essential requirements of law or failed to afford the litigants procedural due process.

The review standard presently prevents the district courts from reviewing the record evidence to consider whether the circuit court has ruled properly. The Supreme Court has raised concerns that this narrow scope of review vests near-unreviewable power in the circuit courts to decide whether the record of the quasi-judicial proceeding supports the decision.

The court has suggested that local governments, to assist the circuit courts in their review of the records of their quasi-judicial decisions, should be required to provide a written decision with express findings of fact. The court has referred the question to the Rules of Judicial Administration Commission for recommendation. This article reviews the arguments for and against requiring local governments to provide written findings.

Recent Decisions

In several recent decisions, the Florida Supreme Court revisited the standard for second-tier certiorari review, emphasizing a district court's narrow jurisdiction. (1) Summarizing its earlier decision in Haines City Community Development v. Heggs, 658 So. 2d 523 (Fla. 1995), the court in Ivey noted:

[W]e clarified and narrowed the scope of common law certiorari jurisdiction by noting that "[a] decision made according to the form of the law and the rules prescribed for rendering it, although it may be erroneous in its conclusion as applied to the facts is not an illegal or irregular act or proceeding remedial by certiorari." Instead we held that certiorari is limited to whether the circuit court afforded procedural due process and whether it applied the correct law. (2)

Further, the court opined that a district court's simple disagreement with the circuit court's interpretation of the law is not a proper basis for common law certiorari. (3)

In Dusseau v. Metropolitan Dade County, 794 So. 2d 1270 (Fla. 2001), the court cites with approval its prior opinion in Florida Power & Light v. City of Dania, 761 So. 2d 1089 (Fla. 2000), which explained the circumscribed parameters of "second-tier certiorari review." The court recognized, however, that a district court of appeal may reverse where the face of the circuit court opinion reflects error, particularly the error of reweighing evidence. Only the evidence supporting the quasi-judicial decision should be considered by the circuit court, and not evidence that might have commended a different decision. "Review at this level is circumscribed and is similar in scope to true common law certiorari review. As a practical matter the circuit court's final ruling in most firsttier cases is conclusive, for second tier review is extraordinarily limited." (4) The court reiterated that the issue of whether the administrative authority's decision was supported by substantial competent evidence is an issue for the circuit court. "Evidence contrary to agency's decision is outside the scope of the inquiry at this point, for the reviewing court above all cannot reweigh the `pros and cons' of conflicting evidence." (5) The Supreme Court affirmed in part the Third DCA's decision because it found that the circuit court, from the plain language of its decision, departed from the essential requirements of law by reweighing the evidence.

In its most recent decision on second-tier certiorari, Broward County v. G.B.V. International, 787 So. 2d 838 (Fla. 2001), the Florida Supreme Court again emphasized the extraordinary nature of second-tier review:

The writ [common law 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 discretionary and was intended to fill the interstices between direct appeal and other prerogative writs. The writ was never intended to redress mere legal error, for common law certiorari--above all--is an extraordinary remedy, not a second appeal. (6)

In Dusseau, Justice Pariente, joined by Justices Anstead and Quince, concurred in the opinion but raised a concern regarding circuit first-tier certiorari review. Although recognizing that the circuit court is obligated to defer to an agency's "superior expertise and special vantage point,"...