A tribute to Justice Arthur J. England, Jr.: father of Florida's modern-day appellate judicial structure.

• Author: Adler, Andrew L.
• Position: Testimonial

On August 1, 2013, Arthur J. England, Jr., passed away. His contributions to Florida law are too numerous to list. Select highlights include serving as both special tax counsel to the Florida House of Representatives and consumer adviser and special counsel to Governor Reubin Askew; helping write the Florida Corporate Income Tax Code, the Florida Unfair and Deceptive Trade Practices Act, and the Florida Administrative Procedure Act; establishing the nation's first interest on trust accounts program; authoring practice manuals on both Florida administrative and appellate law; and serving as private appellate counsel in numerous cases of statewide importance. Many tributes will surely be written about these, and his many other, contributions to the legal landscape in Florida.

This tribute focuses on one discrete, yet highly significant, accomplishment during his tenure on the Florida Supreme Court. As both justice (1975-77; 1980-81) and chief justice (1978-80), England led the charge in reforming the Florida appellate judicial structure, primarily by restricting the jurisdiction of the Florida Supreme Court. In 1980, his efforts culminated in an amendment to Fla. Const. art. V, which he then helped fortify. The resulting appellate structure remains largely intact today, more than 30 years later. This article pays tribute to Justice England's distinguished efforts in this regard.

The 1956 Constitution and the Erosion of its Appellate Structure

From the time Florida achieved statehood in 1845 until 1957, the Florida Supreme Court was the state's only appellate court. As that court's caseload inevitably increased, however, so did the delay in the administration of justice. Due in large part to the efforts of Justice Elwyn Thomas, the people responded in 1956 by amending Fla. Const. art. V, which, upon taking effect in July 1957, created the district courts of appeal. (1) Interpreting this amendment shortly thereafter, the Florida Supreme Court recognized that it was founded on "the idea of a Supreme Court which functions as a supervisory body in the judicial system for the [s]tate, exercising appellate power in certain specified areas essential to the settlement of issues of public importance and the preservation of uniformity of principle and practice, with review by the district courts in most instances being final and absolute." (2)

Despite this recognition, during the next 15 years, the court, in certain instances, allowed itself to become a second court of plenary appellate review rather than a supervisory body. (3) Contrary to the purpose of the 1956 amendment, this had the effect of transforming the district courts into mere "way stations on the road to the Supreme Court," (4) increasing rather than ameliorating the court's caseload.

The primary example of this phenomenon involved the court's "conflict jurisdiction." In order to preserve uniformity in the law, the 1956 Constitution granted the Supreme Court discretionary jurisdiction to review decisions of the district courts that were in "direct conflict" with a decision of another district court or a decision of the Supreme Court. The issue soon arose whether such conflict could be created by a per curiam district court decision that simply affirmed the trial court without written opinion. The issue was important because the district courts were issuing such per curiam affirmances (PCAs) to handle their heavy caseload and resolve appeals requiring the application of settled law.

While the Florida Supreme Court initially resolved that issue in the negative, (5) it reversed course in 1965, holding in Foley v. Weaver Drugs, Inc., 177 So. 2d 221, 225 (Fla. 1965), that it could look into the "record proper" behind a PCA in order to determine whether it had conflict jurisdiction. In reaching that conclusion, the court emphasized the importance of maintaining uniformity in the law, but questionably asserted that a PCA had not only the same legal, but also the same precedential, effect as a district court decision supported by a written opinion. (6) In a dissenting opinion, Justice B. Campbell Thornal predicted that the majority's opinion would serve as "an open invitation to every litigant who loses in the [d]istrict [c]ourt to come on up to the Supreme Court and be granted a second appeal--the very thing that many feared would happen--and the very thing which we assured the people of this state would not happen when the judiciary article was amended in 1956." (7)

Justice Thornal's prediction proved accurate. Indeed, five years later, Justice Thornal, in another dissenting opinion, attributed the court's rising caseload to Foley, accusing the court of "mysteriously find[ing] some conflict" if it thought the "[d]istrict [c]ourt of [a]ppeal reached the wrong conclusion," and cautioning that "if this Court keeps finding 'direct conflict' at the rate we are moving, [then] in a relatively short time the [d]istrict [c]ourt of [a]ppeal will cease to be courts of final jurisdiction as intended by our [constitution." (8) Despite this warning, judicial reform efforts in the early 1970s did not restrict the Supreme Court's jurisdiction, and the court attempted to handle its growing backlog administratively rather than structurally. (9)

Justice England's Arrival and Pre-amendment Efforts

Justice England quickly recognized the problem when he arrived in 1975. During his first two years on the court, he wrote numerous concurring and dissenting opinions persistently calling for the reconsideration and, ultimately, the abrogation of Foley. (10) In doing so, he emphasized, like Justice Thornal before him, that "[w]here our Court has no law-harmonizing or precedent-developing function, our intercession for a second full plenary review merely erodes the constitutional finality of our district courts." (11)

Justice England's critique of Foley culminated in a fierce concurring opinion in Florida Greyhound, Etc. v. West Flagler Association, 347 So. 2d 408 (Fla. 1977). He explained that, "[a]fter pondering this question for some time," he had "conclude[d] that the time has indeed come to recede from Foley and its ill-conceived attempt to retain the last word on every matter brought to the Florida appellate courts." (12) Justice England set forth his reasoning at length, of which the...