Extraordinary writs are a form of relief that appellate courts have discretion to issue in certain circumstances. Writs of Certiorari are one kind of extraordinary writ. Certiorari is latin for “to be more fully informed”. See Black’s Law Dictionary (11th ed. 2019). Writs of certiorari are used to seek appellate review of lower tribunal decisions that are not otherwise subject to appeal. See Broward County v. G.B.V. International, Ltd., 787 So. 2d 838, 842 (Fla. 2001) (“The writ functions as a safety net and gives the upper court the prerogative to reach down and halt a miscarriage of justice where no other remedy exists.”).
In this article, we discuss the three main types of judgments or orders subject to certiorari review in Florida that a Florida appellate attorney may encounter in practice.
Types of Orders Eligible for Certiorari Review
There are three main types of judgments or orders that are subject to certiorari review:
- Quasi-judicial actions of local administrative agencies not subject to direct appeal under general law;
- Decisions of circuit courts acting in their appellate capacity; and
- Nonfinal orders of lower tribunals other than those appealable under Florida Rule of Appellate Procedure 9.130.
Moreover, there are key differences between certiorari review and direct appeals of orders as a matter of right. For one, as stated above, a writ of certiorari can only lie if there is no direct appellate remedy provided by law. Secondly, in certiorari proceedings, the reviewing court has discretion to decide whether to rule on the merits (as opposed to appeals as a matter of right where the reviewing court is required to rule on the merits). A reviewing court will generally exercise its discretion to decide on the merits when a certain jurisdictional test is satisfied by the petitioner, the test varying depending on whether review is of a quasi-judicial or administrative action, decision of a circuit court acting in their appellate capacity, or a nonfinal order of a lower tribunal.
Local Administrative Agency Action in Florida Courts
Quasi-judicial actions of local agencies not subject to the Florida Administrative Procedure Act are reviewed in the first instance by Florida’s circuit courts, a process with which a Florida appellate attorney should be thoroughly familiar. Quasi-judicial actions of local agencies not subject to the Florida Administrative Procedure Act are reviewed in the first instance by Florida’s circuit courts. That is, Florida circuit courts have what is called first-tier certiorari review.
On first-tier certiorari review, the circuit courts’ review is limited to a three-pronged test to determine “whether procedural due process is accorded, whether the essential requirements of the law have been observed, and whether the administrative findings and judgment are supported by competent substantial evidence.” City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982). The circuit courts’ decisions are subject to further, discretionary review by the appropriate district court of appeal.
Review of Circuit Court Appellate Decisions
After the circuit court, in its appellate capacity, reviews a local administrative order by certiorari, the final decision of the circuit court is again subject to review by certiorari in the district court of appeal. However, the standard becomes stricter. In these “second-tier” certiorari proceedings, the district court of appeal determines whether the circuit court: (1) afforded the parties due process of law; and (2) applied the correct law.
Certiorari Review of Nonfinal Orders Not Listed in Fla. R. App. P. 9.130
The purpose of certiorari review is to prevent the miscarriage of justice when there is no other remedy available. And where Fla. R. App. P. 9.130 is limited to allow interlocutory appeal of only certain kinds of orders, certiorari becomes the only vehicle by which to remedy misscarriage of justice in orders not subject to Rule 9.130. In these types of certiorari proceedings, the reviewing court will grant relief only if the order is a departure from the essential requirements of law, and if the harm is of a kind that could not be corrected on appeal from a final judgment. Regarding the second prong, the “irreparable harm” element, it is important to note that the expense or frivolousness of litigation that will ensue in the absence of a remedy is not the kind of harm that will support a basis for certiorari relief. Put simply, the reviewing court will not grant relief simply because refusing to do so will cause the petitioning party to lose more time and money.
Among the most common uses of the writ of certiorari is to review orders compelling “cat-out-of-the-bag” discovery – orders compelling the discovery of information that is protected by a privilege. Courts have generally accepted that when an order compels discovery of privileged information, irreparable harm is caused as, once the information is turned over, the damage has been done, that is, the “cat is out of the bag”. Thus, courts have consistently held that certiorari is proper to review orders compelling the discovery of confidential financial information, trade secrets, work product, and information protected by the attorney-client privilege, religious privilege, and certain other privileges.
Trial Court Orders that Can be Challenged by Certiorari
Many articles on the subject seem to suggest that certiorari relief is never obtainable for orders denying discovery, but a Florida appellate attorney knows that such relief may still be available under the right circumstances. Though it is more difficult to demonstrate irreparable harm caused by orders denying discovery, certiorari review may lie if such harm can be shown. Florida appellate courts have held, in some cases, that the court “could not remedy the harm of non-production on plenary appeal, because we could not ‘determine after judgment how the requested discovery would have affected the outcome of the proceedings.’” PDR Grayson Dental Lab, LLC v. Progressive Dental Reconstruction, Inc., 203 So. 3d 213, 215 (Fla. 1st DCA 2016) quoting (Giacalone v. Helen Ellis Mem’l Hosp. Found., Inc., 8 So. 3d 1232, 1234-35 (Fla. 2d DCA 2009).
Other common uses of certiorari are: to challenge orders granting or denying a stay of proceedings in a trial court; to challenge orders on the issue of consolidation or severance; to challenge orders requiring medical treatment or testing; to challenge orders denying the right to depose the opposing party or a material witness; and to challenge orders granting or denying a motion to dissolve lis pendens. This is not an exhaustive list. Certiorari will lie whenever the two prong test of “departure from essential requirements of law” and “irreparable harm” is met.
Notably, regarding orders granting or denying motions to dissolve a lis pendens, such orders are arguably appealable under Rule 9.130 as they may be treated as injunctions. However, the law in Florida is not quite clear on this point as of the time this article is being written.
Certiorari Writs in Florida
Entire chapters of Florida Bar appellate practice treatises are dedicated to the subject of the extraordinary writ of certiorari, one of the most frequently utilized forms of extraordinary writ relief in Florida appellate courts. While this article is not intended to provide a full and complete treatment of writs of certiorari, it is a useful starting point which addresses some of the more common questions that arise.
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