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In this Article, the Authors examine the efficacy of the current “onesize-fits-all” three-prong test that Florida’s district courts of appeal apply to non-final orders pending in circuit court cases. The Authors propose that courts instead apply a more functional approach that considers the legitimate and practical reasons for appellate court interference into ongoing trial court cases. The current standard requires that non-final orders constitute a “departure from the essential requirements of law” and demonstrate an “irreparable injury”; however, the Authors note that those subjective standards are often difficult to construe, leaving district courts with little guidance, and invite too much discretion by judges. This Article suggests that a functional approach would more efficiently achieve the goals of certiorari review and make the decision-making process more uniform and transparent-a process that would be more easily understood by both judges and lawyers.

This Article reviews the current three-prong approach that Florida district courts of appeal apply in determining whether to grant interlocutory certiorari review of a non-final trial court order, and presents an alternative test for Florida district courts of appeal to apply when making such a determination. The Authors present the shortcomings of the current approach and apply the proposed functional restatement to three types of orders in which the current test is likely to be problematic in its application and is likely to result in denial of certiorari review. The Authors then address the difficulties associated with convincing appellate courts to adopt the functional restatement and present potential shortcomings of the functional restatement. The Article concludes that the functional restatement should not be adopted in place of the current three-prong analysis, but that it can and should be used in arguing for the expansion of the types of orders reviewable under Florida Rule of Appellate Procedure 9.130.

This Article responds to two recent Florida Bar Journal articles in which Judge Chris W. Altenbernd and Jamie Marcario argue for a new standard for deciding petitions for certiorari in Florida’s court system. With the stated goal of remedying the lack of predictability under the current status, Judge Altenbernd and Ms. Marcario propose functional language, which they state would not significantly change the historic scope and use of the writ of certiorari. This Article explains that such a significant change could occur if the proposed standard were applied to non-final orders implicating the right to due process. Specifically, this Article points out that the Florida Supreme Court has consistently declined to create an automatic right to certiorari review for certain non-final orders; however, Judge Altenbernd and Ms. Marcario’s proposal would take away from the Court the constitutionally granted right to control which kinds of orders are subject to certiorari review.

By the early 1990s, the general aviation industry teetered on the brink of death. Because many general aviation aircraft remained in service for several decades, the aircraft imposed a “long tail of liability” on their manufacturers that crippled the industry. Acknowledging the manufacturers’ burden of defending litigation for the life of an aircraft, Congress moved to cut off the long tail of liability and enacted the General Aviation Revitalization Act (GARA), which established an eighteen-year statute of repose that barred a range of product liability lawsuits against general aviation aircraft manufacturers. The Authors argue that Florida courts have disregarded GARA’s purpose (saving manufacturers from costly litigation) by prohibiting immediate appeals of orders denying dismissal based on GARA and forcing manufacturers to endure the costs of trial before they may appeal. Exploring cases with divergent outcomes on the issue, this Article asserts that these burdensome litigation costs constitute permanent, irreparable damage to the manufacturers that can only be remedied by immediate certiorari review.

This Article explores how Florida appellate courts ostensibly protect an individual’s right to choose an attorney by allowing litigants to petition for a writ of certiorari when they lose their chosen counsel to the opposition’s motion to disqualify. Examining cases from several different districts, the Author argues that Florida appellate courts merely pay lip service to the certiorari standard-claiming to adhere to the “essential requirements of law” standard-and instead review orders granting a disqualification motion with an unspoken de novo standard. This Article recommends remedying this disconnect by changing the standard from the allegedly used certiorari standard to the de novo standard available for non-final appeal under Florida Rule of Appellate Procedure 9.130. This, the Author suggests, will increase the transparency and reliability of court decisions reviewing orders that disqualify a party’s counsel and enhance the protection of an individual’s right to choose his or her attorney.

In a recent decision, the Florida Supreme Court appeared to adopt a standard for certiorari review that further limits the availability of such review, continuing a trend that began during the 1960s. Noting that Florida courts have used the same three-prong standard since at least the middle of the last century, this Article traces the evolution of the standard from 1855, when the Supreme Court addressed it for the first time, until the Court’s apparent tightening of the standard in 2012. Although the Court used rather liberal language in the wording of the standard in its 1855 decision, it nevertheless explained that certiorari relief was of a limited nature. Over the next century, however, courts largely failed to provide a coherent definition or application of the standard. This resulted in some relaxation of the standard in its application by the appellate courts. That began to change in the 1960s, when courts began to apply the standard in a way that realized its purported limiting effect. Perhaps most often used to limit review is the prong that requires “material harm incapable of remedy by on appeal.” In 2012, the Florida Supreme Court may have tightened that prong even more. The Court cited with approval a Fourth District Court of Appeal decision that required a petitioner to show “financial ruin” to fulfill the irreparable- harm prong of the standard. This Article questions the wisdom of such a harshly limiting application by pointing out that pushing controversies into post-trial appeal rather than resolving them before trial may be an uneconomical use of judicial resources and shifts an unnecessary burden onto the litigants.

This Article discusses the evolution of the standard of certiorari review in Florida’s appellate courts. Prior to 1957, the Florida Supreme Court had the power, provided by the State Constitution, to issue writs of certiorari in cases at the trial court level, essentially exercising supervisory jurisdiction over other courts. This jurisdiction, however, was not intended to authorize a second appeal; instead, it operated as an examination into the proceedings of the circuit court and whether the judgment was illegal, irregular, or “prejudicial and materially harmful” to the party seeking review.

In 1956, the Florida Legislature amended the Constitution, establishing the Florida district courts of appeal and granting both the district and circuit courts certiorari jurisdiction. The Supreme Court’s certiorari jurisdiction was further defined to require review of decisions that pass upon a question certified to be of great public importance or decisions in direct conflict with a decision of another district court of appeal or the Supreme Court on the same issue. In 1972, an additional amendment to the Florida Constitution added scenarios in which the Florida Supreme Court would have certiorari jurisdiction. In these scenarios, the Supreme Court could also review the district court of appeal’s decision for error. Finally, in 1980, Article V, Section 3, of the Florida Constitution underwent considerable revision, eliminating certiorari jurisdiction in the Supreme Court and making it only available in the district courts of appeal and the circuit courts. The certiorari jurisdiction of these courts still requires a violation of a clearly established principle of law resulting in a miscarriage of justice.

Certiorari relief is only granted if a lower court has violated a “clearly established principle of law,” understood by Florida courts to mean binding and on-target caselaw governing that lower court’s decision. This Article examines the clearly-established-law requirement, finding that it obstructs Florida appellate courts from developing caselaw for issues of first impression and those issues first decided outside the reviewing district. This requirement often results in appellate courts denying relief without analyzing cases’ merits and being bound to other districts’ precedent.

This Article discusses existing responses to the requirement, examining how Florida courts have avoided it by looking to constitutional provisions, statutes, and rules; expanding upon current caselaw; and certifying questions to higher courts. The Article then proposes an alternate solution stemming from prospective adjudication—”sunbursting”—which allows courts to rule on legal issues without applying those rules to parties. Under this approach, courts would both maintain the clearly-established-law requirement and provide for caselaw development in a two-step process: (1) determine whether a lower court violated established law (granting or denying relief); and (2) analyze and rule on each issue raised.

Under Florida law, the circuit courts and the district courts of appeal engage in a limited judicial review of state agency decisions, particularly of local zoning boards, because the courts defer to an agency’s expertise. There is, however, substantial confusion surrounding the scope of the limited review of local zoning board decisions, which makes it difficult-for courts to determine if a state agency has abused its discretion, made erroneous findings of fact, or misapplied the law. Under the current system of certiorari review, a single judge in the circuit court may have too much discretion to review state agency decisions, while a district court of appeal may have too little discretion to determine if there is an error, thus potentially depriving property owners of their rights or interfering with the exercise of legitimate state police power. The Authors urge that certiorari review does not give either property owners or the government, both of which have significant rights at stake, an appeal that would satisfy their constitutional right to such review. The Authors further suggest that society should revisit the issue of judicial review of state agency decisions to afford the parties their constitutional right to review.