The Florida Bar
www.floridabar.org
The Florida Bar Journal
February, 2012 Volume 86, No. 2
Certiorari Review of Nonfinal Orders: Does One Size Really Fit All? Part I

by Judge Chris W. Altenbernd and Jamie Marcario

Page 21

In a bygone era, astronauts tried to convince the world that Tang tasted better than real Florida orange juice1 and designers toyed with “one-size-fits-all” clothing — the results of which were occasionally risqué and often dissatisfying. The use, by Florida’s district courts of appeal, of a single three-prong test based on a “departure from the essential requirements of the law” to resolve the wide array of issues presented by common law certiorari has produced similarly dissatisfying results.

In this article, the authors suggest that, as applied to nonfinal orders in pending circuit court cases, the current three-prong test is inherently unpredictable because it contains no objective standards and often requires each judge to inject his or her own unstated policies into these proceedings. Despite its best efforts, the Florida Supreme Court has proven that it cannot make this test more predictive by issuing additional case law discussing the overall application of this subjective test. Because attempts to clarify the current test have simply muddied the certiorari waters, lawyers should encourage the courts to restate the description of common law certiorari as applied to nonfinal orders in more functional language. A “functional” restatement would consider both the legitimate reasons for restricting appellate court interference into ongoing trial court cases and the practical reasons that such interference is occasionally warranted. Rather than overflowing with flowery adjectives, a functional restatement would articulate the standard for certiorari review of a nonfinal order in terms that have some hope of being measured by reason, logic, and common experience.

Once the courts provide such a functional restatement, its underlying policies should be applied in specific contexts. For example, the case law could separately address: 1) orders denying motions to dismiss; 2) orders granting discovery; 3) orders denying discovery; and 4) orders excluding state witnesses or evidence in criminal cases. As the courts encounter petitions for certiorari review of each type of nonfinal order, they could create precedent announcing narrower, functional tests for use only in that context, with a view toward helping lawyers decide whether to pursue a certiorari proceeding in a district court. The authors believe that such an approach would not significantly alter the historic scope and use of the writ; rather, it would simply make the true decision-making process more uniform, more transparent, and more easily understood by both lawyers and judges.

This article will be published in two parts. In this part, we briefly explain the relatively recent emergence of the current three-prong test and the difficulty the courts have had controlling it. We poke a little fun at the word games the courts have played in an attempt to sound constrained while reaching the desired outcome in these proceedings, then we briefly suggest a rough outline of a possible functional restatement.

In the next edition of this article, we will experiment with several varieties of nonfinal orders that are often challenged by common law certiorari to see if we can suggest context-specific tests that would be more predictive than the current universal three-part test. We hope that this short article will spirit debate and perhaps result in an entire law review discussion of this important jurisprudential topic in much greater depth.

A Brief History
We like to think our law is old and immutable. Really “good” law, we presume, must derive from a foundation that extends to the misty moorlands of medieval England. Common law certiorari is not brand new, and our English predecessors did create it.2 But the truth is that Florida’s approach to common law certiorari is neither old nor immutable.

Although not an extraordinary writ,3 common law certiorari is often referred to as an extraordinary remedy,4 and perhaps rightly so, given that the phrase “common law certiorari” appears in Florida case law only four times before 1929 and only 35 times between 1929 and July 1957. Since the Florida Legislature created the district courts of appeal as intermediate appellate courts,5 common law certiorari has rapidly evolved from an uncommon remedy to a routinely invoked, albeit often misunderstood, tool of review. “Common law certiorari” has appeared in Florida case law 1,090 times since the emergence of the district courts.6

Valeria Hendricks correctly states the current three-prong test used in certiorari review of nonfinal orders in “Writ of Certiorari in Florida” in Florida Appellate Practice.7

The standard of review in a certiorari proceeding involving nonfinal orders requires that

• The order constitute a departure from the essential requirements of the law;

• The order cause material injury throughout subsequent proceedings; and

• The injury be one for which there will be no adequate remedy after final judgment.

This test is sometimes attributed to Haines City Community Development v. Heggs, 658 So. 2d 523 (Fla. 1995). In that case, Justice Anstead provided an excellent discussion of the confusing history of certiorari in Florida. But Heggs addressed second-tier review of circuit court appellate decisions. The test for nonfinal orders can probably be traced to Kilgore v. Bird, 6 So. 2d 541 (Fla. 1942). Kilgore involved a party’s attempt to avoid answering interrogatories, which at that time were authorized by statute. The Supreme Court ultimately required the trial court to strike the interrogatories.8 The majority opinion described common law certiorari using language similar to the current test. 9

In Kauffman v. King, 89 So. 2d 24, 26 (Fla. 1956), the court essentially repeated the Kilgore test, implying that it was well-established law:

Common-law certiorari is a discretionary writ and ordinarily will not be issued by this court to review interlocutory orders in a suit at law, since such errors as are made may be corrected on appeal. It is only in exceptional cases, such as those where the lower court acts without or in excess of jurisdiction, or where the interlocutory order does not conform to the essential requirements of law and may reasonably cause material injury throughout the subsequent proceedings for which the remedy by appeal will be inadequate, that this court will exercise its discretionary power to issue the writ.

The notion that the law has “essential requirements” critical to the analysis of a petition for writ of certiorari seems to have come to Florida from Illinois in Jacksonville, T. & K. W. Ry. Co. v. Boy, 16 So. 290, 291 (Fla. 1894).10 The first reference to a “departure” from the essential requirements that we have discovered comes from the syllabus by the court in Saucer v. State, 90 So. 703, 703 (Fla. 1922). Before these phrases were used, the Supreme Court in Basnet v. City of Jacksonville, 18 Fla. 523, 526-27 (Fla. 1882), suggested that certiorari could be used to correct a court’s use of a “method unknown to the law or essentially irregular.”

The point we suggest that you take from this very brief discussion is that the linguistic description that constitutes the modern three-prong test and the meaning ascribed to its words do not derive from long-established, time-tested common law. Instead, they reflect an ongoing, relatively recent struggle to properly explain the nature and extent of review by a district court of appeal in a certiorari proceeding. If we can find better words, nothing in the common law prohibits us from using them.

The Judiciary’s Three-prong Test Fails to Create a Coherent Decision-making Structure
Although the use of common law certiorari by district courts to review appellate decisions of circuit courts is not our focus, the case law for that category has colored the language of the test courts which apply to nonfinal orders. A careful read of the five leading cases discussing such second-tier certiorari proceedings is warranted.11 These cases reveal that despite the Supreme Court’s valiant efforts to explain what constitutes a “departure from the essential requirements of the law,” this prong of the test has been very difficult for the court to regulate. Like the pendulum of a broken clock that swings too high or too low, the district courts tend to respond to the most recent Supreme Court pronouncement with decisions that are either too passive or too aggressive in the eyes of the Supreme Court.

In contrast, the pendulum of district court review of nonfinal orders has not swung so widely. Nevertheless, the case law, beginning with Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987),12 and Allstate Insurance Co. v. Langston, 655 So. 2d 91 (Fla. 1995),13 clearly demonstrates that the “departure” and “irreparable injury” standards do not provide the district courts with much guidance as to when or why they should step into an ongoing trial court proceeding.

The problem is that concepts like “departure,” “essential requirements,” “material injury,” and “adequate remedy” are all subjective terms that nearly defy definition. In a famous concurrence, Justice Boyd suggested: “The required ‘departure from the essential requirements of law’ means something far beyond legal error. It means an inherent illegality or irregularity, an abuse of judicial power, an act of judicial tyranny perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice.”14

Although this sounds poetic, it is unlikely that many appellate judges would limit their review only to “an act of judicial tyranny.” If the goal of the judicial system is to provide the best possible, most cost-effective forum for dispute resolution, limiting review to acts that are illegal or gross miscarriages of justice would not seem to achieve the goal. Instead, we need to decide upon the goals and policies to be fostered by certiorari review, then announce measurable tests to achieve them.

A Subjective Test Tends to Generate More Rhetoric Than Reason
Subjective tests that do not state the underlying goals and policies seem only to encourage literary magniloquence in appellate judges. The Supreme Court, on occasion, has transformed the requirement for a “departure from the essential requirements” — which seems pretty serious — into a requirement for a “clear” departure.15 One can only wonder what circumstance more than “judicial tyranny” would be required to establish a clear departure. Yet district courts seem to adopt the rhetoric of “clear departure” to emphasize that they are on firm ground or that the trial court was on thin ice.16

Especially since the Supreme Court issued State v. Pettis, 520 So. 2d 250 (Fla. 1988), and Heggs, it has become more common for the courts to require a clear departure from the essential requirements that amounts to or results in “a miscarriage of justice.”17 This phrase adds little or nothing to the certiorari analysis because a “miscarriage of justice” is even more subjective in this context than a “departure from essential requirements of the law.” And what would constitute a “nonessential requirement” of the law anyway? The truth is that rather than providing guidance that might lead to consistent results, this test forces appellate judges, especially in close cases, to rely on their own personal unstated rules and policies, which in turn leads to unpredictability.

Influenced by the case law on second-tier certiorari in which the second reviewing court checks to see if the first reviewing court applied the correct law, the courts sometimes suggest that in order to obtain certiorari review, the error in the nonfinal order must not be a mere misapplication of the law; it must be an application of the wrong law.18 Given that in many cases only a Zen master could distinguish between a misapplication of the law and an application of the wrong law, this principle only adds to the rhetoric. Even if you can make this distinction, there is no stated goal or policy that explains why irreparable harm caused by a misapplication of law should be treated differently than a comparable harm caused by applying the wrong law. Arguably discretionary acts by trial courts should be harder to review by certiorari, but the “misapplication” standard does not seem to limit itself to discretionary decisions.

The courts have also developed another line of cases that deny certiorari review because the material injury is only a matter of litigation expense, which is not regarded as an irreparable harm.19 When you cannot get your money back at the end of the case if it is reversed on direct appeal, this rule only makes sense if it’s not your money. When your money is gone, that is permanent, irreparable damage to you. Obviously, depending on the timing, nature, and size of the litigation expense, policy reasons dictate that an appellate court should not reach down into a pending case to prevent monetary losses, but the “it’s only money” reason to avoid certiorari review does not help create a rational review policy.

Finally, when a particular category of nonfinal order creates repetitive problems that the courts do not reliably resolve by common law certiorari, pressure arises within the bar for the Supreme Court to create an interlocutory appeal under Fla. R. App. P. 9.130. Interestingly, when this happens, the standard of review usually transforms to de novo, and the trial court cannot enter judgment until the appellate court finishes its review. The authors believe that the need for additional appellate rules governing nonfinal appeals could be limited if courts better state the standards for certiorari review.

A Stab at a Functional Restatement
A basic functional definition of certiorari for review of nonfinal orders would merely state: A district court of appeal may use certiorari under exceptional circumstances to review an erroneous nonfinal order in a pending trial court proceeding.20 The goal of a functional analysis is to announce policies and related predictable rules for determining when “exceptional circumstances” exist.

A full discussion of the policies and goals underlying the use of the common law writ of certiorari cannot be presented in this short article, so we will focus on the most obvious. A reviewing court is always concerned with balancing the need for finality in the trial courts with the need for quality judgments — judgments that resolve cases fairly, consistently, accurately, and even-handedly. There are many reasons to avoid interference by a reviewing court into the ongoing work of a trial court. There are valid concerns about reserving the scarce resources of the appellate courts for final appeals, which are more reliable vehicles for the creation of precedent. Sometimes the record in a certiorari proceeding is not adequate, nor is the issue truly ripe for a resolution that will create precedent.

The public, however, has every reason to expect that the judiciary will provide a fast, efficient, and fair dispute resolution process in the trial courts. There are times when errors by the trial court will not resolve themselves if left unchecked, when errors will make settlement difficult or impossible, and when any remedy provided by direct appeal can never cure the damage to the wronged party or a third party. All of these factors undoubtedly require a complex and delicate balance.

The case law suggests that the three-prong test really addresses two issues: the nature and degree of the trial court error and whether there is an adequate justification for the reviewing court to exercise its discretionary jurisdiction.21 In that vein, perhaps a restatement could begin with the following questions:

1) Has the trial court committed an error that can be identified with a high level of confidence from the limited record provided in an original proceeding?

2) Can the reviewing court confidently state that the trial court’s error will be so detrimental to the goal of providing a fair, consistent, accurate, and even-handed dispute resolution process that it should use its resources to interfere in the trial court proceeding to correct the problem?

For purposes of debate, one might flesh out the first question with the following policies:

A reviewing court should not conclude that an order contains an error of law unless the record establishes an error that would result in a reversal on direct appeal with little or no debate among appellate judges.

Such a nondebatable error will normally require a showing that the lower court violated due process, failed to follow binding precedent, or failed in the application of unambiguous statutory law.

For the appellate court to conclude that certiorari relief should be provided in the absence of such a showing, e.g., when there is no established precedent or statute, the appellate court would be required to announce that it had determined there was a clear ability for the appellate court to adequately address the issue on the limited record before it and also that some overriding need within the law and society existed that legitimated a decision to resolve the issue at this time rather than at some later stage in legal proceedings.

If the challenged order involves a discretionary decision by the trial court and not an error of law, the abuse of discretion would need to rise to the level of an ongoing deprivation of due process or perhaps some other constitutional right to warrant interference.

For purposes of debate, one might flesh out the second question with the following policies:

A reviewing court should not determine that an error will be so detrimental to the goal of providing an adequate trial court dispute resolution process that it warrants appellate court interference unless the error:

Deprives a party of a statutorily mandated prelitigation process.

Involves an ongoing due process violation that will prevent a fair trial.

Places burdens on a party that are so extreme that the public would perceive the trial court as an illegitimate forum for fair decisionmaking.

Places burdens on a party so extreme that they will compel the party to settle a case prior to final judgment merely to avoid the burden of the error.

Violates the privacy rights of people, especially those who are not parties in the proceeding.

A reviewing court should not intervene in an ongoing trial court proceeding unless it is convinced that the benefits of intervention, either economic or social, outweigh the costs of intervention.

A reviewing court should provide the narrowest available holding and remedy in an opinion granting certiorari.

A reviewing court should never purport to create precedent or issue a “holding” in a case where a writ is denied beyond an explanation of why the use of the writ is unwarranted.

These proposals are obviously incomplete, but we suggest that they demonstrate that certiorari rules could be written that are more objective and allow for more consistent and transparent rulings. Alternatives to the current uniform approach to certiorari review of nonfinal orders do exist, and we think they will prove more authentic and satisfying than either Tang or one-size-fits-all clothing. Next time, we will attempt to use these rules to create more specific tests tailored for some common certiorari issues.


1 Readers under the age of 45 who do not understand this reference can view the 1966 Tang commercial at http://theopenend.com/2009/01/19/tang-the-drink-of-choice-among-gemini-astronauts.

2 Certiorari in England dates back to around 1300, but the writ as used in the United States has evolved primarily on this side of the Atlantic. See H. Weintraub, English Origins of Judicial Review by Prerogative Writ: Certiorari and Mandamus, 9 N.Y.L.F. 478, 516 (1963).

3 See Raymond T. Elligett & John M. Scheb, Florida Appellate Practice and Advocacy 144 (1998).

4 See, e.g., Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004).

5 These statistics are based on an August 6, 2011, Westlaw search for “common law certiorari” in the Florida cases database. Obviously, this search excludes a short-hand reference to “certiorari,” which is a difficult term to study because the Supreme Court reviewed cases by certiorari until 1979.

6 Although the Supreme Court reviewed by certiorari circuit court orders reviewing county court judgments before the existence of the district courts, review of nonfinal orders in pending cases and of quasi-judicial agency action quickly evolved with the major revision of Fla Const. art. V and the adoption of the Administrative Procedures Act in the mid-1970s. See, e.g., Morris v. State, 148 So. 182 (Fla. 1933).

7 Valeria Hendricks, Florida Appellate Practice §11.4 (7th ed. 2010).

8 See Kilgore v. Bird, 8 So. 2d 665 (Fla. 1942).

9 Kilgore v. Bird, 6 So. 2d at 544 (“Certiorari is a discretionary common-law writ which, in the absence of an adequate remedy by appeal or writ of error or other remedy afforded by law, a court of law may issue in the exercise of a sound judicial discretion to review a judicial or quasi judicial order or judgment that is unauthorized or violates the essential requirements of controlling law, and that results or reasonably may result in an injury which section 4 of the Declaration of Rights of the Florida constitution commands shall be remedied by the due course of law in order that right and justice shall be administered.”) (Citation omitted).

10 Citing Donahue v. Will Co., 100 Ill. 94 (1881) (expressly overruled on other grounds in E. St. Louis Fed’n of Teachers, Local 1220, Am. Fed’n of Teachers, AFL-CIO v. E. St. Louis School Dist. No. 189 Fin. Oversight Panel, 687 N.E.2d 1050 (Ill. 1997)); Hyslop v. Finch, 99 Ill. 171 (1881).

11 See Combs v. State, 436 So. 2d 93 (Fla. 1983); Heggs, 658 So. 2d 523; Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000); Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885 (Fla. 2003); and Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086 (Fla. 2010).

12 Holding that certiorari is not the proper vehicle to review denial of motion to strike a claim for punitive damages, superseded by Fla. Stat. §768.72 (1989), as stated in Henn v. Sandler, 589 So. 2d 1334 (Fla. 4th D.C.A. 1991).

13 Approving Allstate Ins. Co. v. Langston, 627 So. 2d 1178 (Fla. 4th D.C.A. 1993), which held that irrelevant discovery alone is not a basis for granting certiorari unless disclosure of the materials sought would reasonably cause irreparable, material injury.

14 Jones v. State, 477 So. 2d 566, 569 (Fla.1985) (Boyd, J., concurring).

15 State v. Pettis, 520 So. 2d 250, 252 (Fla. 1988).

16 Our Westlaw search for “certiorari” and “clear departure” in the Florida cases database turned up more than 75 cases.

17 See, e.g., A.G. v. Fla. Dep’t of Children & Families, 65 So. 3d 1180 (Fla. 1st D.C.A. 2011). Notably, “a miscarriage of justice” is a statutory description of the test for harmful error on direct appeal. See Fla. Stat. §59.041 (2010).

18 Graham v. Dacheikh, 991 So. 2d 932, 933 (Fla. 2d D.C.A. 2008); State v. Smith, 951 So. 2d 954, 957 (Fla. 1st D.C.A. 2007).

19 See, e.g., AVCO Corp. v. Neff, 30 So. 3d 597, 601 (Fla. 1st D.C.A. 2010).

20 By contrast, the following is the basic functional definition of certiorari for second-tier review: A district court of appeal may use certiorari to review a final appellate decision of a circuit court in a case that warrants exceptional review. The authors would expect that the policies and related rules for second-tier certiorari review of final appellate decisions would be very different from those used to justify interference in a pending trial court proceeding.

21 Bared & Co. v. McGuire, 670 So. 2d 153, 156 (Fla. 4th D.C.A. 1996); Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646, 648-49 (Fla. 2d D.C.A. 1995).


Judge Chris W. Altenbernd is a judge on the Second District Court of Appeal, where he has served for 23 years.

Jamie Marcario is employed as a staff attorney to Judge Chris Altenbernd. She graduated magna cum laude from Stetson University College of Law in December 2010. Before attending law school, she served as the director of editorial services for PricewaterhouseCoopers.

This column is submitted on behalf of the Appellate Practice Section, Matthew J. Conigliaro, chair; Kristin A. Norse, editor, and Chris McAdams, Brandon Christian, and Kristi Rothell, assistant editors.

[Revised: 02-10-2012]