The Docket, a publication of the Sarasota County Bar Association, February 2007
Imagine this: You had your day in court and won, but the other side then appealed to a district court and obtained a reversal. You and your attorney believe the district court ruled in error. What are you going to do? For many people, this is the end of the road. That is because the Florida Supreme Court’s jurisdiction is limited to a degree that Florida’s five District Courts of Appeal are generally considered the “courts of last resort” for most litigants. In fact, in recent years, the five District Courts have annually received a total of approximately twenty-four thousand cases, while the Florida Supreme Court has received approximately twenty-five hundred cases. Nonetheless, if you are one of the lucky few, you can aim to take your case “all the way up,” provided it falls within the Court’s jurisdiction.
Article V, Section 3 of the Florida Constitution and Florida Rule 9.030(a) of Appellate Procedure set forth the limited matters that are subject to the jurisdiction of the Florida Supreme Court. Those matters fall into three classifications: original, mandatory, and discretionary jurisdiction.
The Court has original jurisdiction over petitions for writs of mandamus, quo warranto, prohibition, and habeas corpus. Unfortunately, such grounds are far too particular to cover in any detail here. Suffice it to say that these writs originate from old and inherited English common law. The grounds for invoking them are often complex, resulting in only very narrow applications. Of them all, the most common are petitions for writ of habeas corpus, which in Latin means “that you have the body.” Such petitions are filed by or on behalf of prisoners seeking to contest their detention.
While the Court’s original jurisdiction is complex, its mandatory jurisdiction is fairly straight-forward. It is available in death penalty cases, Public Service Commission actions relating to utility rates or services, and bond validation cases. As well, the Court has mandatory jurisdiction over cases in which a district court has held that a Florida Statute or provision of the Florida Constitution is invalid. A recent, high-profile case decided by the Florida Supreme Court in which this type of jurisdiction existed was the decision of Bush v. Holmes, involving “school vouchers.” In that case, both the trial and district courts held that the Florida Statute establishing the school vouchers program was unconstitutional. Because a district court held the Florida Statue invalid, the Florida Supreme Court determined that it was required to hear the appeal. (The Court ultimately concluded that the statute at issue was, in fact, unconstitutional.)
Clearly, a party wanting to take a case “all the way up” would prefer mandatory jurisdiction. However, few cases fall into that category of jurisdiction. Therefore, most litigants wishing to appeal to the Florida Supreme Court must rely on the Court’s discretionary jurisdiction. When a party wants the Court to review a district court decision on the grounds of discretionary jurisdiction, usually the first step is to file a brief regarding only the jurisdictional issue. If the Court accepts jurisdiction, the merits of the case will be addressed in other briefs and, possibly, an oral argument.
In the realm of discretionary jurisdiction, the best case scenario for an appealing party likely is when the district court has certified that the case involves an issue of “great public importance” or that its decision conflicts with another decision by a district court or the Supreme Court. Sometimes a district court will include such a certification in its originally-issued decision. However, often the losing party must file a motion and ask the district court to add such certification to its decision. Nonetheless, such certification is not highly unusual. In 2005, the Florida Supreme Court received requests for review of approximately 100 decisions in which the district court certified a conflict of decisions and 75 decisions in which the district court certified an issue to be of great public importance. An interesting example of the latter is the Second District Court’s certification, in Times Publishing Co. v. City of Clearwater, of the issue of whether government employees’ personal e-mails are “public records” by virtue of their placement on a government-owned computer system.
Other grounds for discretionary review include district court decisions that expressly hold a Florida Statute valid, construe a provision of the Florida Constitution, or affect a class of constitutional or state officers. As well, there is what is nicknamed “pass through” jurisdiction, which occurs when a district court certifies that a case requires immediate review and resolution by the Florida Supreme Court. In such instances, the district court does not rule on the case first, but rather passes it up. (This occurred in the Terri Schiavo case when basic nutrition was removed.) The Court then has the discretion to take the case or pass it back down.
Finally, and most importantly for most appealing parties, the Court has discretionary jurisdiction over a district court decision that expressly and directly conflicts with a decision of another district court or the Supreme Court on a question of law (even in the absence of district court certification of such conflict). This basis is the most popular. However, it is not necessarily the most successful, primarily because it is often misunderstood. There are multiple theories as to what constitutes “express and direct conflict,” even among the Justices of the Court. However, guidance exists in the form of articles written by current and former Justices and others familiar with the Court’s practice, which detail the various types of “conflict jurisdiction” that have been found in prior cases by the Court. One very clear aspect of conflict jurisdiction, however, is the “four corners rule,” which requires that the conflict be evident from the faces of the decisions alleged to be in conflict. In other words, the trial and district court records, other court decisions, and non-majority opinions are not relevant to the determination of whether conflict jurisdiction exists. This means the determination is a very narrow one and an understanding of that narrow scope is key to successfully arguing for or against the Court’s jurisdiction.
If you find yourself contemplating a bid for discretionary jurisdiction, there are some statistics to consider, which may reflect the likelihood of getting one’s day in (supreme) court. In 2005, the Court denied petitions seeking discretionary jurisdiction in over 1,150 cases. More than 950 of those petitions alleged conflict jurisdiction. And in the first half of 2006, only 75 petitions for discretionary jurisdiction were granted. While those figures may be daunting, if you think you have strong grounds supporting Supreme Court jurisdiction and you want to keep up the good fight, the good news is that briefs on jurisdiction may not exceed ten pages and, therefore, there is little harm in trying. The time frame for filing your brief is short, however. So, if you wish to take your case all the way, do not delay!