Rodriguez v. Miami-Dade County: the Florida Supreme Court clarifies certiorari review in sovereign immunity cases.

• Author: Davidson, Manu Leila

Government entities commonly file motions to dismiss based on sovereign immunity. When those motions were denied, some appellate courts in times past have accepted immediate certiorari review of those orders. This practice has come to an end with the Florida Supreme Court's ruling in Rodriguez v. Miami-Dade County, 117 So. 3d 400 (Fla. 2013).

Certiorari is an extraordinary writ that is not generally granted for review of nonfinal orders, such as those denying motions to dismiss unless it can be shown that "there is (1) a departure from the essential requirements of law (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on post judgment appeal." (1) Until recently, the Third District Court of Appeal recognized an exception to that rule in the context of governmental immunity and granted certiorari review of such orders when the lack of duty and, therefore, nonliability, was the only issue. (2) That rationale was based on the Florida Supreme Court's holding in Wallace v. Dean, 3 So. 3d 1035 (Fla. 2009), which explained that "the absence of a duty of care renders the defendant nonliable as a matter of law because his, or her or its actions are ... nontortious vis-a-vis the plaintiff." (3) Therefore, in the absence of a duty of care in the context of the alleged negligence, the governmental entity cannot be liable, and whether the entity should be immune from suit need not be addressed. (4) This article examines the Third District Court of Appeal's opinion in Rodriguez, the Florida Supreme Court's subsequent reversal of that opinion, and the practical implications of this decision.

Opinion from the Third District Court of Appeal: Miami-Dade County v. Rodriguez

In Miami-Dade County v. Rodriguez, 67 So. 3d 1213, 1216 (Fla. 3d DCA 2011), the Third District joined its sister courts and held that it would no longer grant certiorari review of orders denying motions to dismiss or denying motions for summary judgment in cases in which the sovereign denies liability based on an absence of duty. It stopped short, however, of altogether foreclosing certiorari review of such orders "in cases where immunity from suit rather than solely immunity from liability is at issue[,]" because governmental immunity springs exclusively "from the separation doctrine of separation of powers,[] making it improper for the judiciary to intervene in fundamental decisionmaking of the executive and legislative branches of the government." (5)

In the context of this distinction, the Third District noted that those "functions of government [that] are inherent in the act of governing [remain] immune from suit" and a court lacks subject matter jurisdiction to adjudicate such a matter because sovereign immunity "means that the state has not consented to suit in its courts with regard to certain claims." (6) In Rodriguez, the court applied the police emergency exception to hold that the county was immune from suit.

The plaintiff, Jose Lazzaro Rodriguez, was shot several times by a police officer who responded to a burglary call at the plaintiff's business. Rodriguez, after having been alerted to the call by his security company, raced to his business and exited from his vehicle wielding a gun. Police officers arrived at the scene at the same time. Officer Hernandez, one of the officers on the scene, also with his weapon drawn, ran into Rodriguez from behind. He shot and severely injured Rodriguez when Rodriguez turned to face him. Security camera footage of the incident revealed that only 13 seconds transpired between the...