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Second-tier Certiorari Standard of Review Under Florida Law: A Practitioner’s Guide

Appellate Practice

The key to success on appeal is crafting an argument which persuades the court that it has the authority to grant the relief you are requesting. A thorough understanding of the standard of review is essential to presenting your case in a persuasive fashion to an appellate court. This is especially so when an appellate practitioner challenges the decision of a circuit court sitting in its review capacity via common law certiorari, or so-called “second tier” review. The standard of review in this arena has received attention throughout Florida’s appellate courts because, in many respects, its application is complex and challenging. This article will address and clarify the many issues that arise with respect to the application of the standard of review in second-tier certiorari proceedings.

Historical Perspective

The writ of common law certiorari has its origin in English common law. American courts have adopted this common law writ, which has been defined as “a discretionary writ issued by an appellate court to a lower court in cases where an appeal or writ of error was unavailable, directing that the record of the lower court be provided for review to determine whether the lower court has exceeded its jurisdiction or not proceeded according to law.”1

The Florida Supreme Court first recognized the common law writ in Halliday v. Jacksonville & Alligator Plank Road Co., 6 Fla. 304 (1855). Under Halliday and its progeny, the court held that common law certiorari was a vehicle that permitted only a limited review of the proceedings, unlike a direct appeal. As initially envisioned by the Florida Supreme Court, common law certiorari was not to be used for what amounted to a second appeal.

The policy behind the limited review afforded by common law certiorari is closely connected with the role of a circuit court as a court of final appellate jurisdiction for cases arising out of county court. If on certiorari from a circuit court, a district court was permitted to review the entire record to determine whether the circuit court’s decision was correct, this would provide, in effect, a second appeal and county court litigants would be entitled to a second bite of the apple. Thus, the policy of limited review was developed to avoid these second appeals which, if allowed, would permit the district courts of appeal to violate the Florida Constitution by usurping the role of a circuit court as a court of final appellate jurisdiction. The limited review also equalizes the appeal rights of litigants in county and circuit courts by limiting them to only one direct appeal. There is an additional over-arching public policy principle involved when analyzing the limited review of common law certiorari: “societal interests in ending litigation within a reasonable length of time and eliminating the amount of judicial labors involved in multiple appeals.”2

Certiorari is generally the proper procedural vehicle to challenge a final action of an administrative tribunal not subject to the Administrative Procedure Act, such as a local zoning board decision, under Florida law.3 Circuit court review of such a decision is a matter of right and, therefore, is mandatory and not discretionary.4 Under these circumstances, a circuit court reviews the decision of an administrative tribunal much as it would on plenary appeal. Florida courts have described this initial step in challenging a final action of an administrative agency as “first-tier” certiorari review.5

The circuit court decision rendered on certiorari is itself subject to a secondary review by certiorari in a district court of appeal.6 Unlike review in the circuit court, however, this jurisdiction is discretionary.7 This “second-tier” proceeding provides a much narrower review than the initial petition for certiorari filed in the circuit court.8

The standard of review that each court applies plays a significant role in the outcome of any first- and second-tier review of a final decision of an administrative tribunal. Understanding the standard of review at each level is key to a practitioner’s success.

First-tier Standard of Review

When reviewing a final decision of a local administrative agency, a circuit court must apply the following three-prong test: 1) whether the parties received due process of law; 2) whether the order under review meets the essential requirements of the law; and 3) whether competent substantial evidence supports that order.9 & #x201c;[I]n such a review, the circuit court functions as an appellate court, and, among other things, is not entitled to reweigh the evidence or substitute its judgment for that of the agency.”10 So, for example, a circuit court is required to adopt an agency’s findings of fact based on competent substantial evidence.11 The standard of review employed by a circuit court on certiorari review of a local administrative agency is, therefore, similar to the standard of review of a case originating in county court — in both cases, the reviewing tribunal is not permitted to reweigh evidence.12

In contrast, when a circuit court reviews a county court decision on direct appeal, it can apply a broader standard of review, such as a de novo or abuse of discretion standard. Whereas first-tier certiorari review restricts the court to the three-prong analysis, de novo review on questions of law allows an appellate court to analyze the entire record without according deference to the trial judge.13 The abuse of discretion standard of review14 applies in appeals of discretionary decisions of a trial court.15 Both the de novo and abuse of discretion standards of review permit the court to review a wider array of error than the more restricted review applied on first-tier certiorari.

Second-tier Standard of Review

If a litigant receives an adverse decision from a circuit court sitting in its appellate capacity, review of that decision is available in the district court. Pursuant to Florida Rules of Appellate Procedure 9.030(b)(2)(B), a district court of appeal has “certiorari jurisdiction” to “review. . . final orders of circuit courts acting in their review capacity.” Because the litigant has already had the benefit of review at the circuit court level, the district court’s standard of review is narrower.16 The district court applies the following two-prong test on second-tier certiorari review: 1) whether the circuit court applied the correct law; and 2) whether the circuit court afforded procedural due process.17 This standard of review for the district court “effectively eliminates the substantial competent evidence component” at the circuit court level.18 Without the finding that the circuit court either failed to apply the correct law or failed to afford procedural due process, common law certiorari does not lie on second-tier review.19

These two prongs are “merely expressions of ways in which the circuit court decision may have departed from the essential requirements of the law.”20 The application of this standard of review may not always be clear and requires careful analysis. The Florida Supreme Court has described the standard as:

[containing] a degree of flexibility and discretion. For example, a reviewing court is drawing new lines and setting judicial policy as it individually determines those errors sufficiently egregious or fundamental to merit the extra review and safeguard provided by certiorari. This may not always be easy since the errors in question must be viewed in the context of the individual case. It may also be true that review of administrative decisions may be more difficult, since care must be exercised to determine the nature of the administrative proceeding under review. . . . There is no complete catalog that the court can turn to in resolving a particular case.21

Whether the Circuit Court Afforded Procedural Due Process

The due process prong focuses on, among other things, the litigant’s right to be heard.22 For example, when a circuit court enters an order denying a petition for writ of certiorari without permitting a party reasonable time to assemble and supplement the complete record from below, the circuit court has deprived that party of due process.23 Absent circumstances depriving a party of a right to be heard, due process is generally afforded.24 In this regard, the determination of whether a circuit court has afforded due process may be a less complex analysis than the determination of whether the circuit court applied the correct law.

It is important to note, however, that the district court’s due process analysis occurs at the circuit court level and does not address whether the administrative agency afforded due process.25 On second-tier certiorari review, an argument that the local administrative agency failed to afford a party procedural due process is not proper and will be rejected by a district court of appeal.26

Whether the Circuit Court Applied the Correct Law

In the context of second-tier certiorari review, what does it mean to apply the correct law? Florida courts have analyzed this question within the framework of the longstanding proposition that, in order to grant a petition for certiorari, there must be a violation of a “clearly established principle of law resulting in a miscarriage of justice.”27 In other words, the primary issue a district court must address is whether the circuit court has failed to apply the correct law as clearly established.

The application of incorrect law provides the district court with a basis for granting second-tier certiorari relief.28 For example, when a circuit court applies the incorrect standard of review on first-tier review, district courts have found a failure to apply the correct law as clearly established.29 A misapplication of the correct law or an erroneous interpretation of the law, however, does not meet this standard.30 For example, when a circuit court adopts the correct law, but misapplies that law to the facts at issue, the district court is precluded from finding that the circuit court has failed to apply the correct law.31 Misapplying the correct law is not considered a violation of clearly established law, but merely viewed as the district court “disagreeing” with the circuit court’s application of the law, which is not a basis for common law certiorari.32

In addition, when the established law provides no controlling principle, certiorari does not lie.33 This is because “[w]ithout. . . controlling precedent, [a district court] cannot conclude that [a circuit court] violated a clearly established principle of law.”34 In Stilson v. Allstate Insurance Company, 692 So. 2d 979 (Fla. 2d DCA 1997), the Second District addressed this issue in the context of a claim for personal injury protection (PIP) benefits. The plaintiff made a claim for PIP benefits arising from an incident involving an object that was intentionally thrown at a moving car. While Florida had general law on entitlement to PIP benefits, it had no law that specifically addressed the issue in question. Given that no specific law existed, the Second District determined that the circuit court did not violate a clearly established principle of law. In so doing, the court held:

Without such controlling precedent, we cannot conclude that either court violated a “clearly established principle of law.” At worst, both courts misapplied the correct law. Their error is not a matter of disobedience to the law, but simply a failure to logically extend Novak to reach the correct result under a new set of facts. This case highlights a significant problem within our existing judicial structure. It is difficult for the law to evolve in unreported decisions issued in circuit court appeals. What evolution occurs may take conflicting approaches within the numerous circuits. As a result there may never be “clearly established principles of law” governing a wide array of county court issues. . . .35

In Allstate Insurance Co. v. Kaklamanos, 843 So. 2d 885 (Fla. 2003), the Florida Supreme Court attempted to provide some clarity to the analysis of whether the circuit court applied the correct law as clearly established. In so doing, the court found that clearly established law can be derived not only from case law, but also from the interpretation or application of a statute, a procedural rule, or a constitutional provision. Thus, under Kaklamanos, the finding that a circuit court has failed to apply the correct law based on any of these legal sources may be the basis for granting second-tier certiorari review. The court went on to determine that the district court correctly granted certiorari on second-tier review because the circuit court’s interpretation of the legal issue in question was too narrow and conflicted with the intent and language of the statute under review. Accordingly, this conflict between the circuit court’s interpretation and the intent of the statute was enough to meet the standard that the circuit court had failed to apply the correct law as clearly established.

Kaklamanos offers a broader approach to meeting the standard that the circuit court failed to apply the correct law. Practitioners are now given the opportunity not only to argue that the circuit court applied the incorrect case law, but also that the circuit court applied the incorrect interpretation of a statute, procedural rule, or a constitutional provision. For example, a practitioner may argue that the circuit court failed to apply the correct law because its interpretation of a statute conflicts with the purpose of the statute as evidenced by legislative history.


Understanding the standard of review on second-tier certiorari provides a practitioner with creative approaches to obtaining jurisdiction in certiorari proceedings before district courts. To be sure, the standard of review can have a major impact on second-tier certiorari proceedings and often determines the outcome in each case. This is especially so when the legal issue being challenged arises out of the interpretation of a statute, procedural rule, or constitutional provision. Even though district courts will continue to analyze these second-tier proceedings within the narrow framework of certiorari itself, as a result of Kaklamanos and its progeny, there are arguments to be made even without the benefit of case law that is directly on point.q

1 Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 525 (Fla. 1995) ( quoting 3 Fla. Jur. 2d Appellate Review §456 (1978)).

2 Id. at 526 n.4 ( citing William A. Haddad, The Common Law Writ of Certiorari in Florida, 29 U. Fla. L. Rev. 207, 227 (1977)).

3 Pursuant to Fla. Const. art. V, §5(b), the circuit courts have “direct review of administrative action prescribed by general law.” This direct review can be exercised only when a statute creates the requisite jurisdiction. Under certain statutes, the legislature has given circuit courts jurisdiction to review the final action of an administrative tribunal by way of certiorari. See also Heggs, 658 So. 2d at 530 (“Common-law certiorari has been made available to review quasi-judicial orders of local agencies and boards not made subject to the Administrative Procedure Act when no other method of review is provided.”).

4 See Broward County v. G.B.V. Int’l, Ltd., 787 So. 2d 838, 843 (Fla. 2001) (“In brief, first-tier certiorari review is not discretionary but rather is a matter of right and is akin in many respects to a plenary appeal ….”).

5 Id.

6 Review is available on certiorari to a district court of appeal pursuant to Florida Rule of Appellate Practice 9.030(b)(2)(B).

7 See City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982), for a well-reasoned description of the difference between the standard of review on first-tier as opposed to second-tier certiorari review.

8 Id. at 626 (“As a case moves up the appellate ladder, each level of review does not become broader. As Chief Judge Letts, speaking for the court said: ‘[C]ommon sense dictates that no one enjoys three full repetitive reviews to, 1) a civil service board[,] 2) a circuit court [and] 3) a district court of appeal[.]’”) ( quoting City of Deerfield Beach v. Vaillant, 399 So. 2d 1045, 1047 (Fla. 4th D.C.A. 1981)).

9 See, e.g., Dusseau v. Metro. Dade County Bd. of County Comm’rs, 794 So. 2d 1270, 1274 (Fla. 2001).

10 See Dep’t of Highway Safety & Motor Vehicles v. Kurdziel, 908 So. 2d 607, 609 (Fla. 2d D.C.A. 2005) (quoting Heggs, 658 So. 2d at 530).

11 See City of West Palm Beach Zoning Bd. of Appeals v. Educ. Dev. Ctr., Inc., 504 So. 2d 1385, 1386
(Fla. 4th D.C.A. 1987) (“The question is not whether, upon review of the evidence in the record, there exists substantial competent evidence to support a position contrary to that reached by the agency. Instead, the circuit court should review the factual determination made by the agency and determine whether there is substantial competent evidence to support the agency’s conclusion.”) (emphasis added).

12 Heggs, 658 So. 2d at 530.

13 See, e.g., Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co. , 752 So. 2d 582 (Fla. 2000).

14 The abuse of discretion standard of review is generally described in terms of reasonableness: “If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of abuse of discretion.” Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980).

15 See, e.g., Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983).

16 Heggs, 658 So. 2d at 530 (“As a case travels up the judicial ladder, review should become narrower, not broader.”). For a discussion of the history of common law certiorari and an analysis of the standard of review on certiorari, see generally Heggs.

17 See Miami-Dade County v. Omnipoint Holdings, Inc., 863 So. 2d 195, 199 (Fla. 2003).

18 Heggs, 658 So. 2d at 530.

19 See Peachtree Cas. Ins. Co. v. Prof’l. Massage Servs., Inc. , 923 So. 2d 548, 550 (Fla. 1st D.C.A. 2006) (holding that second-tier certiorari review is limited to these two situations); see also Dan Joint Venture III, L.P. v. Armstrong, 929 So. 2d 1186, 1186 (Fla. 4th D.C.A. 2006) (“On second tier review, this court cannot conduct a de novo review of the record, and thus does not review the application of the correct law to the facts.”).

20 Heggs, 658 So. 2d at 530.

21 Id. at 530-31 (footnote omitted).

22 See DSA Marine Sales & Serv. v. County of Manatee, 661 So. 2d 907, 909 (Fla. 2d D.C.A. 1995).

23 Id.

24 See, e.g., Thomas v. Brevard County Sheriff’s Office Civil. Serv. Bd., 456 So. 2d 540, 544 n.2 (Fla. 5th D.C.A. 1984).

25 See Seminole Entm’t, Inc. v. City of Casselberry, 813 So. 2d 186, 188 (Fla. 5th D.C.A. 2002) (“Arguments as to the alleged lack of due process before the city commission were properly presented to the circuit court but are beyond the scope of the due process review available here.”) (footnote omitted).

26 Id.

27 See Ivey v. Allstate Ins. Co. , 774 So. 2d 679, 682 (Fla. 2000) (“It is well-established that certiorari should not be used as a vehicle for a second appeal in a typical case tried in county court.”).

28 Housing Auth. of City of Tampa v. Burton, 874 So. 2d 6, 9 (Fla. 2d D.C.A. 2004) (“Unlike application of incorrect law, misapplication of correct law by a circuit court sitting in its appellate capacity generally does not constitute a violation of clearly established law resulting in a miscarriage of justice.”).

29 See Kurdziel, 908 So. 2d at 609 (“When a circuit court applies an improper standard of review, ‘this is tantamount to departing from the essential requirements of the law[.]’” ( quoting G.B.V. Int’l, 787 So. 2d at 845)).

30 Manatee County v. City of Bradenton, 828 So. 2d 1083, 1084 (Fla. 2d D.C.A. 2002) (“Because Manatee County did not demonstrate that the circuit court applied the wrong law, but rather argued that it misapplied the correct law, the petition for writ of certiorari is denied.”).

31 Id.

32 Ivey, 774 So. 2d at 683.

33 Id. at 682.

34 Id. (internal quotations omitted).

35 Stilson, 692 So. 2d at 982-83.

Cory W. Eichhorn is an associate in the litigation department of Greenberg Traurig, P.A., in Fort Lauderdale, where he practices commercial litigation and appellate law. Mr. Eichhorn is a member of the Appellate Practice Section of The Florida Bar.

This column is submitted on behalf of the Appellate Practice Section, Tracy R. Gunn, Kristin A. Norse, and Heather M. Lammers, editors.

Appellate Practice