Revisiting the Florida Supreme Court's conflict jurisdiction to review per curiam affirmances signaling contrary authority.

AuthorAdler, Andrew L.
PositionAppellate Practice

This article has two modest aims pertaining to the Florida Supreme Court's discretionary jurisdiction under FLA. CONST. art. V, [section]3(b)(3) to review "any decision of a district court of appeal...that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law." (1) First, it seeks to remind appellate practitioners that while the 1980 amendment to [section]3(b)(3), as interpreted by the Florida Supreme Court, has eliminated that court's "conflict jurisdiction" to review nearly all per curiam affirmances (PCAs) and other district court decisions rendered without written opinion, there is one narrow yet long-standing exception that often goes overlooked. Specifically, the court has recognized on several occasions that it does in fact possess conflict jurisdiction under [section]3(b)(3) to review PCAs that signal authority contrary to the authority upon which the PCA relies. As its second aim, this article respectfully suggests that the Florida Supreme Court revisit this exception in a future case because it was adopted without critical analysis and without consideration of potentially strong counterarguments.

Background: The 1980 Amendment

Several Florida Supreme Court opinions and scholarly articles have recounted in detail the history of the 1980 amendment to [section]3(b)(3). (2) Briefly summarized, when FLA. CONST. art. V was amended in 1956, the district courts of appeal were created in order to absorb the rising caseload of the Florida Supreme Court, which up to that point was the state's only appellate court. Interpreting that amendment shortly thereafter, the Florida Supreme Court emphasized that, under the 1956 Constitution, the district courts were intended to act not as intermediate appellate courts, but rather as courts of final review in most cases. The Florida Supreme Court was to act as a supervisory body and the court of last resort only in a limited number of cases presenting issues of statewide importance or requiring legal harmonization. Included in that latter category were cases in which there was a "direct conflict" among appellate decisions.

In the following years, however, the court began to examine the "record proper" underlying PCAs rendered without opinion in order to determine whether a "direct conflict" existed. The court squarely approved of this practice in Foley v. Weaver Drugs, Inc., 177 So. 2d 221, 223-25 (Fla. 1965). Undermining the purpose of the 1956 Constitution, Foley and the record proper doctrine resulted in the continued expansion of the Florida Supreme Court's jurisdiction and effectively transformed the district courts back into "way stations on the road to the Supreme Court," (3) not courts of final review.

In response to the Florida Supreme Court's rising caseload, several members of the court--particularly Justice Arthur J. England, Jr. (4) --successfully urged the legislature to propose a constitutional amendment limiting the court's jurisdiction. Following months of debate among the legislature, the court, The Florida Bar, and other stakeholders, in 1980 the voters approved an amendment to FLA. CONST. art. V, [section]3. One of the key revisions was the addition of the word "expressly" to [section]3(b)(3), such that the court would have conflict jurisdiction under that provision only when there was an "express" and "direct" conflict. The intent of this revision was to overrule Foley's record proper doctrine and preclude the court from exercising conflict jurisdiction over PCAs rendered without written opinion.

Shortly thereafter, the Florida Supreme Court effectuated that purpose in Jenkins v. State, 385 So. 2d 1356 (Fla. 1980). Relying heavily on the history and language of the amendment, the court held that it lacked conflict jurisdiction under [section]3(b)(3) to review an unelaborated PCA, even if a conflict could be discerned from an accompanying concurring or dissenting opinion. Over the last 35 years, the court has extended Jenkins to various types of decisions rendered without written opinion, including: PCAs and orders supported only by citation; (5) per curiam denials of relief, whether unelaborated (6) or supported only by citation; (7) and per curiam dismissals, whether unelaborated or supported only by citation. (8) The court has also held that its extraordinary writ jurisdiction may not be used to circumvent Jenkins and its progeny, (9) and even the court's mandatory jurisdiction to review decisions declaring invalid a state statutory or constitutional provision does not allow for review of unelaborated per curiam decisions. (10)

Jurisdiction over PCAs Signaling Contrary Authority

While Jenkins and its progeny preclude [section]3(b)(3) conflict jurisdiction over virtually all PCAs, there are exceptions. The most well-known exception was articulated in Jollie v. State, 405 So. 2d 418, 420 (Fla. 1981), when the court permitted review of PCAs relying on a case that is either pending before, or has been reversed by, the Florida Supreme Court. (11) However, there is another equally long-standing, yet often overlooked, exception in addition to Jollie. (12) As mentioned at the outset, several Florida Supreme Court decisions support the proposition that it has conflict jurisdiction under [section]3(b)(3) to review a PCA that refers, via citation, to a district court (or, less likely, a Florida Supreme Court) (13) decision that is contrary to the authority upon which PCA relies.

In State Farm Mutual Automobile Insurance Company v. Lawrence, 401 So. 2d 1326, 1327 (Fla. 1981), the court first exercised conflict jurisdiction over a citation PCA that also included a "contra" citation to a decision by another district court. The court did so without explanation and over the dissent of Justice Joseph A. Boyd, Jr. The court's summary treatment is surprising considering how meticulous it was in the formative post-amendment years to thoroughly interpret [section]3(b)(3) and carefully circumscribe its conflict jurisdiction over PCAs.

Two years later, the court in Stevens v. Jefferson, 436 So. 2d 33, 34 (Fla. 1983), again over the dissent of Justice Boyd, exercised conflict jurisdiction under [section]3(b)(3) "because the per curiam affirmance by the district court indicated contrary authority." In that case, the PCA included a "but see" citation to another district court opinion, and the district court "deem[ed]" that case "to be in conflict with [its] decision." (14) The Florida Supreme Court, however, offered no additional reasoning. Two years later, the court in Frederick v. State, 472 So. 2d 463, 464 (Fla. 1985), similarly exercised conflict jurisdiction under [section]3(b)(3) to review a PCA that included a "but see" citation, "with which this decision is in conflict." (15)

A few years later, the...

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