The continuing story of certiorari.

• Author: Conigliaro, Matthew J.
• Position: Florida

Certiorari. Even the word's pronunciation confounds many attorneys, with no fewer than a half-dozen lingual variations in use. (1) Elocution is relatively inconsequential, however, when compared with the complexities surrounding the writ's application. The writ of certiorari is a critical part of Florida's highly developed appellate system.

This article focuses on common law certiorari, to be distinguished from the statutory certiorari writ available to review administrative proceedings as a matter of right. The following sections present a brief overview of common law certiorari followed by discussions on several areas where Florida law on certiorari continues to evolve.

The Role of Certiorari in Florida

Certiorari originated in the English legal tradition as a writ, or order, directing an inferior tribunal to transmit the records of a particular case so the higher court could review the proceedings. (2) When Florida voters amended the state constitution in 1980 and eliminated the state Supreme Court's certiorari jurisdiction, unsuccessful parties in the district courts of appeal lost the opportunity to seek certiorari review from the Florida Supreme Court. (3) Common law certiorari became relegated to review proceedings in the circuit and district courts.

Of course, appeals are generally available to parties as a matter of right at the conclusion of all trial court proceedings, (4) and Florida Rule of Appellate Procedure 9.130 permits interlocutory review of many nonfinal circuit court orders. Florida, thus, has a system for plenary and interlocutory review apart from certiorari, which might suggest the writ's place in the law. Common law certiorari lies at the appellate margin, functioning as a safety net for matters that otherwise would fall through the gaps in Florida's appellate system. (5)

Certiorari retains its unique place in Florida's appellate scheme through two features: the writ's heightened requirements for relief and its discretionary nature. To obtain a writ of certiorari, a petitioner must demonstrate: 1) the challenged order causes material injury that cannot be corrected on appeal, sometimes described as irreparable harm, and 2) the challenged order constitutes a departure from the essential requirements of law, which amounts to more than simple legal error. (6) The standards for certiorari should be applied on a case-by-case basis, (7) and even when the writ's requirements are met, the decision to issue a writ of certiorari is ultimately discretionary. (8)

Historical and Ongoing Developments

How the judiciary examines certiorari petitions is a matter of continuing evolution. The following discussion considers four areas of historical and ongoing development with respect to certiorari petitions and the irreparable harm requirement in particular.

* Orders Requiring Disclosure of Irrelevant Financial Information--One area where certiorari law continues to evolve concerns orders that require the disclosure of irrelevant financial information. In Martin-Johnson v. Savage, 509 So. 2d 1097 (Fla. 1987), the Florida Supreme Court considered whether certiorari could be used to review an order denying a motion to dismiss or strike a claim for punitive damages--an order that ensured the petitioner's financial condition was relevant to the case. Considering the question not materially different from a certiorari challenge to an order permitting financial discovery, the court held, "[W]e do not believe the harm that may result from discovery of a litigant's finances is the type of 'irreparable harm' contemplated by the standard of review for certiorari." (9) The court also observed that the financial information at issue in the case was not protected by any privilege and that the petitioner's privacy interests in the materials did not rise "to the level of trade secrets, work product, or information about a confidential informant." (10)

The Supreme Court further reasoned that if it permitted certiorari relief to address the financial information at issue, the same rationale could as easily be applied to the erroneous denial of a motion for summary judgment or a motion to join or dismiss a party. (11) The court stated that "[l]itigation of a non-issue will always be inconvenient and entail considerable expense of time and money for all parties in the case" and viewed the governing authorities as holding such harm insufficient to permit certiorari review. (12)

Prior to Martin-Johnson, numerous Florida district court decisions granted certiorari petitions directed at orders compelling discovery of irrelevant financial information. (13) Martin-Johnson acknowledged such decisions but did not disapprove them. (14) However, Martin-Johnson could be read as holding that erroneous disclosures of nonprivileged financial information cannot constitute irreparable harm, and district court decisions interpreted Martin-Johnson in this manner. (15)

The district courts nonetheless remained uncomfortable with erroneous financial disclosures. A First District decision initially interpreted Martin-Johnson restrictively to preclude certiorari based on financial information. (16) On rehearing, however, the court reversed direction, granting the petition and limiting Martin-Johnson to the context of motions to dismiss or strike claims for punitive damages. (17) Other district court decisions also viewed Martin-Johnson in a similarly narrow way. (18)

The Supreme Court further explored its certiorari views with its decisions in Allstate Insurance Co. v. Langston, 655 So. 2d 91 (Fla. 1995), and Globe Newspaper Co. v. King, 658 So. 2d 518 (Fla. 1995). Langston held that irreparable harm can be shown "when it has been affirmatively established that such discovery is neither relevant nor will lead to the discovery of relevant information," but the court also held that the discovery of irrelevant information does not necessarily equate with irreparable harm. (19) Globe Newspaper held that permitting a punitive damages claim to be pled without conducting the statutorily required evidentiary examination constitutes harm justifying certiorari review, while error in the trial court's evidentiary examination process will not support certiorari review. (20)

Read together, Langston and Globe Newspaper suggest the discovery of financial information may give rise to irreparable harm for...