Taking the pathway of discretionary review toward Florida's highest court.

AuthorMartin, Diana L.
PositionAppellate Practice

Your client is on the losing end of an opinion issued by one of Florida's five district courts of appeal and wants to know whether there is hope of having that opinion overturned by the state's highest court. Given that the Florida Supreme Court's jurisdiction to hear cases is limited and primarily discretionary, you will likely have to explain to your client that the Florida Supreme Court can review the lower court's opinion only if it meets certain criteria and only if the court so chooses. Although divining in which cases the court will grant review is an impossible task, the following will aide in advising your client.

Under Fla. Const. art. V, [section] 3(b), the Florida Supreme Court has five categories of jurisdiction: mandatory appellate jurisdiction, discretionary review jurisdiction, discretionary original jurisdiction, exclusive jurisdiction, and jurisdiction to issue certain advisory opinions. (1) Since the constitutional amendment in 1980, (2) the bulk of the Supreme Court's jurisdiction is discretionary. (3) This article focuses on cases that seek discretionary review (as opposed to petitions for the exercise of original jurisdiction, e.g., the issuance of writs).

Procedure for Invoking Discretionary Review

The procedure for invoking the Florida Supreme Court's discretionary review is outlined in the Rules of Appellate Procedure. (4) In most cases, the party seeking review must file a notice in the district court within 30 days of rendition of the order to be reviewed, followed by a jurisdictional brief in the Supreme Court within 10 days. (5) Jurisdictional briefs are not required in cases involving a decision that certifies a question of great public importance, a trial court order or judgment that is certified by a district court as requiring immediate resolution by the Supreme Court, or a question certified by a federal appellate court. (6)

Prior to filing a notice of review, however, the petitioner must make sure the opinion is subject to the Supreme Court's jurisdiction. The court will administratively dismiss notices to review per curiam affirmances that do not contain a written opinion or at least cite to a case that has been quashed or reversed by the court, statute, or a rule of procedure. (7) A party seeking to review an opinion that falls into one of these categories would first need to obtain a written opinion from the district court. (8)

Method for Determining Whether to Grant Review

Being a court of limited review, the power of the Florida Supreme Court to exercise jurisdiction over a case is strictly construed and there is a heavy burden against the exercise of jurisdiction. (9) In most cases, after the parties have filed their jurisdictional briefs, the clerk's office assigns each case to a panel of five justices, one of whom oversees preparation of a memorandum analyzing whether there is a basis for the court's exercise of discretionary jurisdiction. (10) After reviewing the memorandum, the panel votes whether to accept discretionary review. (11) If four justices agree on a jurisdictional disposition of the case (whether to grant review with or without oral argument or deny review), the parties are notified of the court's decision and the case proceeds accordingly. (12) In the event of a 3-2 split, the case is sent to the remaining two justices and the majority vote of the entire court determines whether the request for discretionary review is granted. (13)

Because no jurisdictional briefs are required if a party is seeking review in a case in which there is a question certified as being of great public importance, the notice and district court opinion are reviewed by a panel of five justices who vote whether to accept review in the same manner described above. (14) In cases in which a district court certified a trial court order as requiring immediate resolution by the Supreme Court, the entire court, rather than an assigned panel, determines at its next conference whether to accept jurisdiction. (15) And in cases involving a question certified by one of the federal appellate courts, the chief justice decides after the merits briefs have been filed whether the case should be placed on the oral argument calendar or assigned to a justice's office for preparation of a memorandum that will be circulated to the other justices before they conference to consider the case. (16)

Types of Discretionary Review Jurisdiction

* Express Declaration of Statutory Validity--The Florida Supreme Court has the discretion to review district court decisions that expressly declare valid a state statute--as opposed to declarations that a statute is invalid, over which the court has mandatory jurisdiction. (17) While the district court decision must directly discuss or make a finding of statutory validity, (18) such a finding may be dicta. (19) Nevertheless, the practice of the court demonstrates its selectivity in reviewing these types of cases. (20)

* Express Construction of State or Federal Constitution--District court decisions that expressly construe a provision of the state or federal constitution also fall under the discretionary review jurisdiction of the Supreme Court. (21) It is not sufficient that a district court decision merely construe a provision of state or federal law; the decision must "'explain, define or otherwise eliminate existing doubts arising from the language or terms of the constitutional provision.'" (22) Of the 20 cases seeking this type of review in 2008, the court exercised its discretion to grant review in only a single case. (23)

* Opinions Affecting Constitutional or State Officers--The Supreme Court has discretionary review jurisdiction over district court decisions that expressly affect a class of constitutional or state officers. (24) The court has explained that a decision must directly affect the "duties, powers, validity, formation, termination or regulation of a particular class of constitutional or state officers" to be subject to review. (25) This means the decision must be "in a case in...

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