Second-tier certiorari standard of review under Florida Law: a practitioner's guide.

• Author: Eichhorn, Cory W.

The key to success on appeal is crafting an argument which persuades the court that it has the authority to grant the relief you are requesting. A thorough understanding of the standard of review is essential to presenting your case in a persuasive fashion to an appellate court. This is especially so when an appellate practitioner challenges the decision of a circuit court sitting in its review capacity via common law certiorari, or so-called "second tier" review. The standard of review in this arena has received attention throughout Florida's appellate courts because, in many respects, its application is complex and challenging. This article will address and clarify the many issues that arise with respect to the application of the standard of review in second-tier certiorari proceedings.

Historical Perspective

The writ of common law certiorari has its origin in English common law. American courts have adopted this common law writ, which has been defined as "a discretionary writ issued by an appellate court to a lower court in cases where an appeal or writ of error was unavailable, directing that the record of the lower court be provided for review to determine whether the lower court has exceeded its jurisdiction or not proceeded according to law." (1)

The Florida Supreme Court first recognized the common law writ in Halliday v. Jacksonville & Alligator Plank Road Co., 6 Fla. 304 (1855). Under Halliday and its progeny, the court held that common law certiorari was a vehicle that permitted only a limited review of the proceedings, unlike a direct appeal. As initially envisioned by the Florida Supreme Court, common law certiorari was not to be used for what amounted to a second appeal.

The policy behind the limited review afforded by common law certiorari is closely connected with the role of a circuit court as a court of final appellate jurisdiction for cases arising out of county court. If on certiorari from a circuit court, a district court was permitted to review the entire record to determine whether the circuit court's decision was correct, this would provide, in effect, a second appeal and county court litigants would be entitled to a second bite of the apple. Thus, the policy of limited review was developed to avoid these second appeals which, if allowed, would permit the district courts of appeal to violate the Florida Constitution by usurping the role of a circuit court as a court of final appellate jurisdiction. The limited review also equalizes the appeal rights of litigants in county and circuit courts by limiting them to only one direct appeal. There is an additional over-arching public policy principle involved when analyzing the limited review of common law certiorari: "societal interests in ending litigation within a reasonable length of time and eliminating the amount of judicial labors involved in multiple appeals." (2)

Certiorari is generally the proper procedural vehicle to challenge a final action of an administrative tribunal not subject to the Administrative Procedure Act, such as a local zoning board decision, under Florida law. (3) Circuit court review of such a decision is a matter of right and, therefore, is mandatory and not discretionary. (4) Under these circumstances, a circuit court reviews the decision of an administrative tribunal much as it would on plenary appeal. Florida courts have described this initial step in challenging a final action of an administrative agency as "first-tier" certiorari review. (5)

The circuit court decision rendered on certiorari is itself subject to a secondary review by certiorari in a district court of appeal. (6) Unlike review in the circuit court, however, this jurisdiction is discretionary. (7) This "second-tier" proceeding provides a much narrower review than the initial petition for certiorari filed in the circuit court. (8)

The standard of review that each court applies plays a significant role in the outcome of any first- and second-tier review of a final decision of an administrative tribunal. Understanding the standard of review at each level is key to a practitioner's success.

First-tier Standard of Review

When reviewing a final decision of a local administrative agency, a circuit court must apply the following three-prong test: 1) whether the parties received due process of law; 2) whether the order under review meets the essential requirements of the law; and 3) whether competent substantial evidence supports that order. (9) "[I]n such a review, the circuit court functions as an appellate court, and, among other things, is not entitled to reweigh the evidence or...