Original proceedings, writ large.

• Author: Walbolt, Sylvia H.
• Position: Florida

The right to appeal a ruling other than a final judgment is limited to the specific category of rulings set forth in Florida's Rules of Appellate Procedure. But there also are certain extraordinary writs that can be sought as part of the appellate court's original jurisdiction. Such original jurisdiction is narrow, generally controlled by the case law that has developed over the years. That case law expresses an overwhelming bias against piecemeal appeals and appeals without a fully developed record, as well as a strong deference toward trial judge rulings, especially interim rulings. The original jurisdiction of the Florida Supreme Court is further circumscribed by the Florida Constitution, and that court has no certiorari jurisdiction at all.

With these constraints, not much usually changes in the state courts' original jurisdiction, and the contours of the writs have become fairly rigid and settled over the years. Indeed, relief by way of an original proceeding is quite hard to come by, thus, explaining the oft-used characterization "extraordinary writ." Yet, despite these formidable hurdles, it has been emphasized that "some lawyers tend to lose sight of the creative ways the writs can be used ... [and that] in some circumstances, one of these so-called 'extraordinary writs' may provide jurisdiction when nothing else can." (1) Recently, the extraordinary grant of various extraordinary writs has proved that point.

Since much has been penned about the requisite showings to secure relief in certiorari, mandamus, prohibition, habeas corpus, quo warranto (or "all writs"), we will not recapitulate those excellent sources. Instead, we explore a recent spate of expansiveness in the application of the usually static writs. We focus on three writs in particular--quo warranto, habeas corpus, and certiorari.

Quo Warranto

The writ of quo warranto is a "writ of inquiry," meaning "by what authority." (2) Although historically developed by the English crown to use against its subjects, it generally is used in Florida as "the means by which an interested party can test whether any individual improperly claims or has usurped some power or right derived from the State of Florida." (3) One of the Florida Supreme Court's highest profile decisions in 2008 was a quo warranto writ to the governor of Florida.

At the behest of the Florida Legislature, the Florida Supreme Court issued a writ of quo warranto in Florida House of Representatives v. Crist, 999 So. 2d 601 (Fla. 2008), invalidating a "compact" (a contract between two sovereigns) between the governor of Florida and the Seminole Indian Tribe of Florida that expanded casino gambling on tribal lands and granted the tribe the exclusive right to conduct certain types of gaming. The legislature had not approved the compact, and the court held the governor lacked "the constitutional authority to bind the [s]tate to a gaming compact that clearly departs from the [s]tate's public policy by legalizing types of gaming that are illegal everywhere else in the [s]tate." (4)

The court concluded it had jurisdiction to grant quo warranto relief to preclude a state officer or agency from improperly exercising a power or right derived from the state. The majority rejected the complaint of Justice Lewis' "concurring-in-result-only opinion" that the court was expanding its "quo warranto jurisdiction to include issues normally reserved for declaratory actions." (5) Pointing to settled separation of powers precepts, the court declared "the importance and immediacy of the issue justifies our deciding this matter now rather than transferring it for resolution in a declaratory action." (6)

The governor filed an impassioned motion for rehearing, complaining that the decision "misapprehended longstanding jurisdictional principles and dramatically expanded [the court's] own jurisdiction by redefining the formerly 'extraordinary' writ of quo warranto." (7) According to the movants, "the [c]ourt's decision constitutes a sea change in the scope of the writ of quo warranto, expanding the writ (and through it, this [c]ourt's original jurisdiction) to encompass potentially all challenges to the validity of past and present decisions of public officer." (8) Specifically, the governor argued that "[t]he [c]ourt's decision reverses, sub silencio, prior precedent establishing that the '[m]ere function of office, as distinguished from the office itself, may not be the subject of quo warranto.'" (9) Without comment on the criticisms of its use of quo warranto, the court stood by its decision. (10)

Although this seemingly groundbreaking decision might encourage a surge in quo warranto petitions, there is reason to believe it may be limited to its unique facts. For example, noting "its increasing popularity," the Fifth District Court of Appeal specifically wrote in Johnson v. Office of the State Attorney, 987 So. 2d 206, 207 (Fla. 5th DCA 2008)...