Certiorari is one of the most commonly used writs in Florida’s District Courts of Appeal. However, the scope of certiorari jurisdiction is often misunderstood, and many certiorari petitions are dismissed because the parties have sought review of an issue that is simply beyond the scope of proper certiorari review. This Article addresses the uses of certiorari review in the district courts of appeal and the standard of review applicable to the various types of certiorari. This Article then provides suggestions for writing and filing a winning petition.
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It is difficult to ask a party filing an initial civil lawsuit also to choose an appellate court. Trial attorneys are arguably more concerned with jury pools than with the philosophy and differences between various appellate courts. Yet, overlooking this point can be costly. Florida offers different appellate remedies from its federal counterpart, and at distinctly different times.
For instance, the Florida Rules of Appellate Procedure permit immediate appeals of class certification orders. The federal rules do not—appeals are at the federal court’s discretion. As counsel for a newly served class-action defendant, your knee-jerk reaction might be to remove this class-action lawsuit from state court to federal court. Is this wise, however, when your priority is to ensure that this lawsuit does not proceed as a class action? By remaining in state court, you have the immediate right to appeal the class certification order. Unfortunately, this right is not available in federal court. At bottom, then, a party’s failure to consider appellate remedies from a lawsuit’s inception could deprive that party of valuable appellate options. Even worse, ignoring this issue might provide your opponent with appellate rights that otherwise would not have been available.
It has become increasingly rare for an appellate court to grant oral argument for an appeal. In fact, in a small number of jurisdictions, courts will hear an oral argument only when a party requests it or the court actually orders it. Although numerous reasons exist for this diminution in the quantity of oral arguments, the most telling is the crushing workload appellate courts face today.
Not only has oral argument become less common, but the time allotted for oral argument has decreased. In the early 1800s, Daniel Webster argued for the appellant in Trustees of Dartmouth College v. Woodward. The oral argument in that case lasted three days. Today, appellants and appellees are often limited to fifteen minutes or less of oral argument.
Thus, the cases that make it to oral argument typically are the ones that raise “important” or complex issues or include facts that are so complex that the judges or justices on the appellate panel reviewing the briefs encounter enough difficulty that they require clarification. This is indeed a select few of the enormous number of cases that the appellate court reviews, and the appellate party who receives oral argument should treat the situation with the importance that the appellate court accorded it. This Article will explore the importance of oral argument, and will offer suggestions on how to prepare for this critical event in the life of a case.
Florida’s District Courts of Appeal (DCAs) function as the courts of last resort for most litigants in the state court system. Most appeals to the DCAs are filed in appeal of “final judgments” of the circuit courts. This Article examines the difficulties that have arisen over the years as the DCAs attempt to determine what is, and what is not, a “final judgment” that is appealable on that basis. The analysis is limited to appeals from civil and administrative, rather than criminal, orders. Part Two of this Article contains a brief overview of the history of Florida’s appellate court structure. Part Three provides an overview of the DCAs’ jurisdiction; Part Four examines in detail the Florida courts’ efforts to clarify the standard against which an order’s “finality” is measured. Part Five analyzes the procedure by which final (actual or putative) orders are appealed, and Part Six concludes with a summary of how well the system is currently working.
In our article on amicus briefs in the first volume of the Appellate Advocacy Symposium, we discussed the importance of amicus briefs and what makes them useful to courts. We explained that, although some amicus briefs are merely “me too” briefs and, as such, add little insight, others can “be very valuable in highlighting for the Court that people or organizations in the State other than the litigants themselves view the case as one requiring a decision . . . .”
However, it is rightly said that an ounce of practice is worth a pound of precept. With that in mind, we offer this short reflection on an actual amicus brief filed published in the United States Supreme Court cases Grutter v. Bollinger and Gratz v. Bollinger after our article was published. We believe the amicus brief provided by high-ranking individuals of the military well exemplifies what an amicus brief can and should be.
During the summer of 1957, after completing my first semester of law school, I worked in Panama City, Florida, on a Dr. Pepper truck, selling soft drinks. The driver of the truck and I stopped at every grocery store, gas station, motel, hotel, restaurant, bar, and “juke joint” in that area, including a place called the Bay Harbor Poolroom. The poolroom was named for the small community in which it was located, just a few miles east of the center of Panama City.
The Panama City area was dominated by a huge paper mill located at Bay Harbor. The paper manufacturing process caused a smell that was pervasive for miles in every direction; no one in Panama City or in its environs could escape the caustic odor that stung and burned the eyes, the throat, and the face. Anthony Lewis, in Gideon’s Trumpet, described the paper mill and the adjacent area in the following words:
Just outside the city limits, twenty minutes from the motels and restaurants and Post Office that make “downtown,” is a gigantic International Paper Company plant, its tall chimneys spewing out sulphurous smoke. Huddled near the plant fence, within sight and smell of the chemical fumes, is the community of Bay Harbor. Community is too grandiose a word for it; Bay Harbor is a bitter, decayed parody of a movie set for a frontier town. It is just a few dilapidated buildings separated by dirt roads and alleys and weed-filled empty lots: a bar, a two-story “hotel,” a grocery and the Bay Harbor Poolroom. One who happened onto that dark street would be eager to drive back through the dank countryside to the highway and its neon. Gideon had no illusions about Bay Harbor; he called it “Tobacco Road.”
Legal dialogue among scholars in the fields of constitutional law and the commons law of privacy about the emerging applications of video security technology has been ongoing for more than a decade. Early articles on the constitutionality of using closed circuit television (CCTV) technology for “citizen safety” purposes documented the first series of projects and raised fundamental constitutional issues that have been the subject of real outcomes described in the most recent legal commentary. In ten short years, the legal literature has drawn some fairly solid conclusions based upon both theory and experience. Recently, constitutional concerns for privacy have also been raised in the context of the emerging use of such technology by employers to monitor employees’ suspected incriminating conduct that threatens the employer’s
economic interests.
John is my son. I am committed to caring for him and providing for all his needs. I have been his parent in every way. For example, every day, I wake him up in the morning and help him get dressed and ready to go to school; I help him with his homework when he comes home from school; we have a family dinner together every night, cooked by Roger; and we spend our evenings engaged in a variety of family activities. . . . Roger and I teach John household responsibilities such as yard work, car maintenance and cooking. I discipline him appropriately when he misbehaves. I hug and comfort him when he is upset. I teach him manners, respect and other values that I consider
important. I make sure he is safe. He calls me “Dad.” . . . John is eager to be adopted. For the last couple of years, he has been asking me when his adoption will be complete. . . . I love John deeply and want to protect him. But I cannot protect him unless I can adopt him.
I am sure that there are a number of articles on taxpayer standing, and I probably would not have written this Article if I had not come across a certain comment of the Louisiana Supreme Court while researching another topic. Chief Justice Edward Bermudez for the Louisiana Supreme Court made the following comment in 1887, and it seemed to make so much sense that it became the springboard for a highly critical look at what the Florida Supreme Court has done in recent years with the issue of taxpayer standing:
The first question to be determined is whether the plaintiffs have a standing in court. It is unnecessary to indulge in any discussion of the long-mooted, but now apparently settled, question, whether tax-payers, or even one of them, have a right to contest judicially, as plaintiffs, the validity of municipal ordinances at which they level the charge of illegality for any cause. The settled doctrine, after much contrariety of opinions and considerable vacillation among the courts, seems to be that the right of property holders or taxable inhabitants is recognized
to resort to judicial authority to restrain municipal corporations and their officers from transcending their lawful powers, or violating their legal duties, in any unauthorized mode which will increase the burden of taxation, or otherwise injuriously affect tax-payers and their property; such as an unwarranted appropriation and squandering of corporate funds, an unjustifiable disposition of corporate property, an illegal levy and collection of taxes not due or exigible, etc. We accept this conservative doctrine. The recognition of that privilege is predicated on the principle that it is proper that those who may be immediately affected by the abuse should be armed with the power to interfere directly and at once in their own name, in a mode which affords an easy, prompt, and adequate preventive relief against an evil which might otherwise entail irremediable wrong. The exercise of that right or privilege is the more justified when the law does not vest the state or an officer with the power to seek redress. In such instances the action is regarded as having a public character, and as being a public proceeding, in which the public complains.
On June 27, 2002, the United States Supreme Court handed down the most widely anticipated decision of its 2002 term when it resolved a constitutional question that had been dominating the school-voucher debate for years. In Zelman v. Simmons-Harris, a five-to-four majority held that Cleveland’s voucher program did not violate the Establishment Clause of the United States Constitution. Chief Justice William H. Rehnquist, writing for the majority, reasoned that voucher programs that allow state money to reach religious institutions by way of parental choice are “entirely neutral with respect to religion,” and therefore do not amount to government endorsement of religion.