The 'essential requirements of the law'--when are they violated?

• Author: Walbolt, Sylvia H.
• Position: Appellate Practice

A common law writ of certiorari is a form of extraordinary relief. It cannot be used as a second appeal or as a means of circumventing Florida Rule of Appellate Procedure 9.130, which provides for the immediate appeal of interlocutory orders only in limited circumstances. (1) To obtain a common law writ of certiorari, a petitioner must demonstrate 1) a material injury in the proceedings below that cannot be corrected on postjudgment appeal, and 2) that the injury was caused by a departure from the "essential requirements of the law." (2) This article focuses on the second element, which is utilized not only in the context of nonfinal review of trial court orders, but also when circuit courts review local government rulings and when district courts review circuit court certiorari decisions. (3)

The Florida Supreme Court first articulated the "essential requirements of the law" standard in 1894, when it "endorsed" this standard of the Illinois courts. (4) The standard was expressly adopted as Florida law in 1899. (5) However, as noted in Haines City Community Development v. Heggs, 658 So. 2d 523, 527 (Fla. 1995), notwithstanding its longevity, the Florida courts' application of this standard over the years has been "all over the waterfront." Seeking to clarify the standard in 1983, the Florida Supreme Court explained in Combs v. State, 436 So. 2d 93, 95 (Fla. 1983), that "the district courts of appeal should not be as concerned with the mere existence of legal error as much as with the seriousness of the error." Although courts have "a large degree of discretion" in determining whether a departure from the essential requirements of the law has occurred, they "should exercise this discretion only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice." (6)

Despite that clarification, courts continued to struggle with the "essential requirements of the law" standard for certiorari review. In Ivey v. Allstate Insurance Co., 774 So. 2d 679 (Fla. 2000), the Florida Supreme Court quashed the Third District's decision granting a writ of certiorari, writing a sharply worded opinion. The court declared that the Third District "merely disagreed with the circuit court's interpretation of the applicable law, which, as explained in Heggs, is an improper basis for common law certiorari." (7) Certiorari review did not permit the district court to engage in a second level of appellate review of a decision issued by the circuit court sitting in its appellate capacity. By conducting such a review, the district court had "expressly created a new category of appellate review never before recognized under Florida law and in express and direct conflict with authority to the contrary." (8)

In its analysis, the Ivey court quoted at length from Judge Altenbernd's opinion in Stilson v. Allstate Insurance Co., 692 So. 2d 979, 982-83 (Fla. 2d DCA 1997), which stated that without controlling precedent, there could at most be a misapplication of correct law, not a violation of "a clearly established principle of law." (9) Misapplying the correct law, thus, does not sufficiently depart from the essential requirements of the law to obtain a writ of certiorari. Judge Altenbernd acknowledged that due to this narrow scope of review and the large number of unreported circuit court decisions, "conflicting approaches within the numerous circuits" could evolve, and "there may never be 'clearly established principles of law' governing a wide array of county court issues, including PIP issues." (10) Nonetheless, he concluded that, while tempting, the district court could not exercise certiorari review "simply to provide precedent where precedent is needed." (11)

The Florida Supreme Court agreed, saying the "solution" was not a "second level of appellate review." (12) In its words, the "concept of certiorari review should have a recognized uniformity of application." (13)

In Allstate Insurance Co. v. Kak lamanos, 843 So. 2d 885 (Fla. 2003), the Florida Supreme Court reiterated the standard for a departure from the essential requirements of law. Cautioning that a departure from the essential requirements of law is "something more than a simple legal error," the court said there must be a violation of a "clearly established principle of law resulting in a miscarriage of justice" to warrant certiorari review. (14) These "clearly established principles of law" do not emanate solely from precedential appellate decisions, but rather "can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law." (15) Thus, "in addition to case law dealing with the same issue of law, an interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting certiorari review." (16) In State v. Belvin, 986 So. 2d 516, 526 (Fla. 2008), the court reaffirmed its definition of "clearly established law" from Kaklamanos.

Within the last few months, the Florida Supreme Court again sought to clarify the meaning of "essential requirements of the law" in Custer Medical Center v. United Automobile Insurance Co., 35 Fla. L. Weekly S640 (Fla. Nov. 4, 2010). As in Ivey, the court quashed a Third District decision granting a writ of certiorari, again writing a sharply worded opinion for misapprehending the certiorari standard. Relying on Heggs, Combs, Ivey, and Kaklamanos, the court emphasized that certiorari is only available to "correct grievous errors that, for a variety of...