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The Evolution of Rule 9.130 and Appellate Review of Sovereign Immunity

Appellate Practice

Mel Brooks famously said in History of the World Part I, “it’s good to be the king.”[1] Undoubtedly, one of the perks of royalty was sovereign immunity — the notion that the king can do no wrong.[2] This concept originated in Medieval England and forbade the king from being hauled into court whether for damages or otherwise.[3] And while the United States freed itself from the tyranny of royalty in 1776, the doctrine of sovereign immunity is well entrenched in American jurisprudence and has carried forward into modern day. It remains a foundational element of governance.[4] By insulating public bodies and officials from endless liability, it promotes the “fearless, vigorous, and effective administration of policies of government.”[5]

In Florida, and in general, sovereign immunity consists of two sister protections: freedom from suit and freedom from liability.[6] The freedom from suit shields governments from costly litigation and resultant distractions from their core public missions.[7] The protection from liability guards the public coffers.[8] They are independent and co-equal protections, with one immunizing the government and government actors on the front end of litigation, and the other on the back end. While this article will discuss three different forms of governmental immunity, the catchall term “sovereign immunity” will be used to include all forms of governmental immunity unless otherwise noted.

This article walks through the evolution of sovereign immunity public policy as reflected by changes to the Florida Rules of Appellate Procedure over the past 50 years. The fundamental tension inherent in the Florida Supreme Court’s opinions has been between timely resolution of sovereign immunity cases on one end and conservation of judicial time and resources on the other. That tension resolved in the Florida Supreme Court’s landmark case in Florida Highway Patrol v. Jackson, 288 So. 3d 1179 (Fla. 2020). Through the lens of appellate procedure, sovereign immunity has never been stronger.

Early Avenues of Appellate Relief

Florida Rule of Appellate Procedure 9.130 provides appellate review of certain enumerated types of non-final orders. As it pertains to sovereign immunity, Rule 9.130’s history traces back to three transformative Florida Supreme Court decisions in Tucker v. Resha, 648 So. 2d 1187 (Fla. 1994), Keck v. Eminisor, 104 So. 3d 359 (Fla. 2012), and Jackson. But first, some background.

Prior to 1975, sovereign immunity was nearly absolute, so appellate review was minimal. The Florida Constitution did, however, (and still does) empower the legislature to waive sovereign immunity by general law.[9] This authorization drew on a common law override to sovereign immunity: one injured by the king’s ministers could always petition the king directly for relief.[10] Early on, the legislature utilized this authority to statutorily waive sovereign immunity for breach of contract suits against the then-existing iteration of the Department of Transportation, the State Road Department.[11] Suits against the State Road Department typically reached the appellate level through petitions for writ of prohibition, which prevent a trial court from acting without or in excess of its jurisdiction.[12]

In 1975, the legislature exercised its constitutional prerogative to allow tort suits against the government within certain confines.[13] The waiver in §768.28 is narrower than many realize and limits suits to those that could traditionally have been brought against non-government actors.[14] This nuance created a need for appellate refinement of the law from the outset. Despite this waiver, there was no specific avenue for immediate appellate review of non-final orders denying entitlement to sovereign immunity. Government defendants were left to challenge such orders through petitions for writs of prohibition or certiorari, or by final appeal.

The Emergence of Workers’ Compensation Non-Final Appeals

Before discussing the first shift in appellate sovereign immunity law that occurred in 1994, a brief detour (or maybe even frolic depending on the trier of fact) into a related body of law concerning workers’ compensation immunity is necessary. Sovereign immunity appellate jurisprudence was not cut from whole cloth, but was pieced together from remnants of the newly emerging and parallel growing body of law applicable to workers’ compensation immunity. Like government defendants, employers and contractors had no established right to appellate review of non-final orders denying immunity until the mid-1990s.

In 1992, that changed when the Florida Supreme Court decided Mandico v. Taos Construction, Inc., 605 So. 2d 850 (Fla. 1992). In Mandico, the Supreme Court pronounced the creation of a new class of immediately appealable nonfinal orders that find “a party is not entitled to workers’ compensation immunity as a matter of law.”[15] Rule 9.130 was amended and those orders became appealable. But that expansion was specific to workers’ compensation immunity and did not carry over into sovereign immunity orders. Later caselaw would severely restrict the scope and class of such orders. Specifically, the Supreme Court eventually addressed an apparent ambiguity in the rule as worded and clarified that orders denying summary judgment on workers’ compensation immunity are not appealable “unless the trial court specifically states that, as a matter of law, such a defense is not available to a party.”[16] This meant that the legal basis must appear on the face of the order, and the appellate court could not reach down into the record below to determine the basis of the court’s ruling.[17]

The Door Opens to Qualified Immunity

Returning to the central topic at hand, the first major shift in appellate sovereign immunity law occurred in 1994 when the Florida Supreme Court extended Rule 9.130 to allow immediate appeal of orders denying entitlement to qualified immunity.[18] At the time, federal law provided immediate appeal of orders denying qualified immunity in cases litigated in federal court, but Florida did not have any corresponding protection. Such was the state of the law when Tucker, the executive director of the Florida Department of Revenue, was denied summary judgment on a qualified immunity defense in a Florida court in Tucker. Resha, a business owner, sued Tucker for allegedly violating his civil rights by ordering a retaliatory audit and investigation of his bookstore. The claims sounded in both state and federal law, including a §1983 claim. The executive director moved for summary judgment, citing her entitlement to qualified immunity under federal law.[19] When the trial court denied her motion, she filed petitions for writs of prohibition and certiorari challenging the arbitrary difference between raising the defense in state and federal court. The First District Court of Appeal denied her petitions but certified the issue to the Florida Supreme Court as a matter of great public importance.[20]

On review, the Florida Supreme Court noted that qualified immunity consists of an “immunity from suit rather than a mere defense to liability.”[21] By insulating officials from litigation at the outset, the court reasoned, qualified immunity benefits society as a whole, freeing government actors from “the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office.”[22] Given the established importance of the doctrine, the Supreme Court held that public policy warranted interlocutory review and ordered the Rules of Appellate Procedure amended to allow immediate appeal.[23] Still, the amendment to Rule 9.130 was narrow. It only allowed appeals from orders denying qualified immunity.[24] Thus, government entities denied entitlement to sovereign immunity against state law claims were typically left to seek review through the great writs.

Just two years after Tucker, the Florida Supreme Court was asked to decide whether to allow immediate appeal of orders denying entitlement to sovereign immunity more broadly in Department of Education v. Roe, 679 So. 756 (Fla. 1996). The facts in Roe were not notable, other than a brief mention that the plaintiff sued a combination of institutional and individual state governmental defendants who made claims to sovereign immunity.[25] When their motions to dismiss based upon that defense were denied, they sought review through petitions for writs of common law certiorari.[26] Again, the First District Court of Appeal denied review and the case was taken before the Florida Supreme Court.

The Roe court distinguished sovereign immunity from qualified immunity primarily on the commonality of the defense and the burden immediate review would place on the state court system:

[I]t cannot be said that suits against governmental entities grounded upon the statutory waiver of sovereign immunity constitute a small class of cases. To the contrary, permitting interlocutory appeals in such cases would add substantially to the caseloads of the district courts of appeal. Moreover, in light of the statutory waiver, it can no longer be said that the issue of sovereign immunity is always independent of the cause itself. Oftentimes, the applicability of the sovereign immunity waiver is inextricably tied to the underlying facts, requiring a trial on the merits. Thus, many interlocutory decisions would be inconclusive and in our view a waste of judicial resources.[27]

The Florida Supreme Court, therefore, rejected requests to broaden Rule 9.130 further. Although not express, the Supreme Court appeared to place primary importance on state-derived sovereign immunity as an immunity from liability rather than an immunity from suit.[28] It would be another 16 years before the Florida Supreme Court entertained the issue again.

The Expansion to Limited Review of Sovereign Immunity Orders

In Keck v. Eminisor, 104 So. 3d 359 (Fla. 2012), the Florida Supreme Court was asked to decide whether government employees should be afforded certiorari relief in simple tort suits. Instead, the Supreme Court again expanded the scope of Rule 9.310 to include suits against individuals in their governmental employee capacity.

Keck arose from an accident involving a Jacksonville Transit Authority (JTA) trolley that struck a pedestrian. The JTA owned the trolley and utilized the services of the Jacksonville Transit Management Corporation (JTM), which acted as an agent of the JTA and employed Keck directly.[29]

The pedestrian sued the two companies as well as Keck individually. Keck moved for summary judgment based upon sovereign immunity, claiming government employee or agent status so that he could not be sued individually for simple negligence.[30] The trial court denied the motion, finding that the JTM was “neither a state agency or subdivision under section 768.28(2), Florida Statutes (2005), nor an agent of the [s]tate under section 768.28(9)(a).”[31] Keck sought immediate appeal through a petition for a writ of certiorari.[32]

The First District Court of Appeal, as the reader can probably guess by this point, denied review, finding that the individual liability implicated in the case did not raise immediate public policy concerns. Interestingly, the court distinguished the case from Tucker on the grounds that “this case involves only ordinary negligence and does not implicate other policy concerns or the discretionary functions of public officials as in Tucker.”[33] In other words, the First District found that lower-level government employees did not experience the same chilling effect as higher-level decisionmakers faced with potential liability for their actions. Despite its principled differentiation, the First District certified the following question to the Florida Supreme Court as a matter of great public importance[34]: “Whether review of the denial of a motion for summary judgment, based on a claim of individual immunity under section 768.28(9)(a) without implicating the discretionary functions of public officials, should await the entry of a final judgment in the trial court?”[35]

On review, the Florida Supreme Court broadened the focus of the inquiry to any claim of individual immunity under F.S. §768.28(9)(a) because the plain language of the statute “applies equally to every officer, employee, or agent of the state” and “makes no distinction between public officials whose jobs include discretionary functions and those public employees — like Keck — whose jobs include no such tasks.”[36] According to the Supreme Court’s analysis, the statutory authorization of suits against such individuals for acts evidencing bad faith, malicious purpose, or willful and wanton disregard does nothing to diminish that immunity.[37]

The Florida Supreme Court recognized that if individuals who were granted immunity under §768.28(9)(a) were forced to stand trial, the “statutory protection” would become meaningless.[38] Based upon those considerations, the Supreme Court extended the scope of immediate review under Rule 9.130 to allow appeals by individual defendants claiming entitlement to sovereign immunity, and again ordered an amendment to the rule. Several members of the Supreme Court also entered a concurring opinion advocating for expansion of Rule 9.130 to cover “the denial of any claim of immunity where the question presented is solely a question of law.”[39] But when the Appellate Rules Committee submitted a rule covering “any immunity from suit,” the Supreme Court rejected it as too broad and adopted a rule allowing immediate appeals from orders “which determine, as a matter of law, that a party is not entitled to sovereign immunity,” mirroring the workers’ compensation immunity rule.[40]

The Watershed Moment

To set the stage for what appellate enthusiasts might describe as the monumental shift that later occurred, it is worthwhile to summarize the state of the law following Keck and the resultant amendment to Rule 9.130. The Florida Rules of Appellate Procedure afforded immediate appeal of orders denying qualified immunity or sovereign immunity to individual government officers, agents, and employees as a matter of law.[41] Presumably, the basis of the ruling had to be clear on the face of the order, and prevailing law was believed to prohibit the appellate court from reaching down into the record below to determine entitlement to immunity, though the Florida Supreme Court had not expressly extended that rule from workers’ compensation immunity jurisprudence to sovereign immunity orders.[42] The upshot of the “as a matter of law” clause was that a ruling by the trial court that questions of fact existed, even if erroneous, deprived the defendant of immediate appellate review. This restriction was held in place to intentionally limit the number of appeals.[43] While courts had recognized the importance of the immunity from suit as it applied to qualified immunity and individual immunity, it was not considered significant enough as a policy to warrant review of all sovereign immunity-related orders, but only those that, on their face, denied entitlement as a matter of law.

In Jackson, the Florida Supreme Court’s gradual evolution reached its ultimate conclusion and eliminated virtually all of the existing strictures or limitations on nonfinal appellate review of orders addressing sovereign immunity. Jackson involved a suit for wrongful death against the Florida Highway Patrol (FHP) caused by the agency’s allegedly negligent operation of I-75 during a brushfire incident. The representative of the decedent’s estate sued FHP alleging that it should have kept the highway closed longer and that its failure to do so created visibility issues that resulted in Jackson’s death. When the FHP moved for summary judgment, the trial court found that disputed issues of fact precluded summary judgment, and expressly stated so in its order.[44] The First District dismissed the agency’s appeal based upon Hastings and Reeves, but certified a question to the Florida Supreme Court asking whether “Rule 9.130(A)(3)(C)(XI) permit[s] an appeal of a non-final order denying immunity if the [r]ecord shows that the [d]efendant is entitled to immunity as a matter of law but the trial court did not explicitly preclude it as a defense?”[45]

The Florida Supreme Court, after engaging in a statutory analysis that considered the grammatical structure of the provision allowing appeals from orders denying workers’ compensation immunity as a matter of law, held that the same strictures applied to orders concerning sovereign immunity.[46] Thus, appellate courts, under existing law, could only review orders that precluded a defense of sovereign immunity as a matter of law and only when that determination was apparent on the face of the order.[47] The court found itself bound by the language of the rule and the governing precedent, and approved the First District Court of Appeal’s opinion dismissing the appeal.[48]

At the same time, the Florida Supreme Court reconsidered public policy undergirding the limitations on appellate review of nonfinal sovereign immunity orders. This time, the Supreme Court emphasized the importance of “immunity from suit” which is lost if the government is forced to proceed through costly litigation.[49] The Supreme Court paid deference to the “separation of powers principles” and the importance of protecting state coffers, both of which were undermined by the existing rule.[50] It also criticized the inadequacies of the existing rule, which “exalt form over substance, and lead[] to arbitrary and indefensible results.”[51] The Supreme Court counterbalanced the public policy implications against the increased burden on appellate courts and ultimately concluded that “because sovereign immunity includes immunity from suit, entitlement to sovereign immunity should be established as early in litigation as possible.”[52]

As a result, it again ordered that Rule 9.130 be amended. This time, however, substance prevailed. The amended rule allowed immediate appeal of orders that deny a motion that

(i) asserts entitlement to absolute or qualified immunity in a civil rights claim arising under federal law;

(ii) asserts entitlement to immunity under section 768.28(9), Florida Statutes; or

(iii) asserts entitlement to sovereign immunity.[53]

The Supreme Court did not stop there. It also eliminated the restrictions on review of the record below, pronouncing that a reviewing court is no longer limited to the face of the order and “may review as much of the record as is necessary to resolve the question presented in the appeal.”[54]


Following Jackson and the Florida Supreme Court’s implementing opinion in 2020 in In re Amendments to Florida Rule of Appellate Procedure 9.130, 289 So. 3d 866 (Fla. 2020), it appears that every restriction placed on appellate review of sovereign immunity has been removed. Government defendants have the ability to timely challenge any order related to a defense of sovereign immunity. One might also conclude that sovereign immunity defenses may now be decided at the dismissal phase as readily as at the summary judgment stage. While to some these changes might seem trivial, to anyone ever forced to litigate an immunity case through trial because appellate review was unavailable, they are monumental. The modern Rule 9.130 gives significance and effect to the immunity from liability that had been sacrificed in earlier cases for the sake of judicial economy. And although the monarchy remains entombed in America’s past, somewhere Mel Brooks’ Louis XVI is smiling.

[1] Mel Brooks (director) History of the World Part 1 (1981).

[2] See Cauley v. City of Jacksonville, 403 So. 2d 379, 381 (Fla. 1981).

[3] Id.

[4] Id. (citing Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)).

[5] See Rupp v. Bryant, 427 So. 2d 658, 663 (Fla. 1982) (quoting Barr v. Mateo, 360 U.S. 564 (1959)).

[6] Fla. Highway Patrol v. Jackson, 288 So. 3d 1179, 1185 (Fla. 2020).

[7] Id.

[8] Id.

[9] Fla. Const. art. X, §13.

[10] Cauley, 403 So. 2d at 381.

[11] See State v. Love, 126 So. 374 (Fla. 1930); State Road Dep’t v. Taylor, 167 So. 2d 748 (Fla. 1st DCA 1964). But see Pereira v. State Road Dep’t, 178 So. 2d 626 (Fla. 1965) (dismissing claim sounding in tort based upon sovereign immunity).

[12] Id.; Dep’t of Natural Resources v. Cir. Ct. of Twelfth Jud. Cir., 317 So. 2d 772 (Fla. 2d DCA 1975).

[13] See Fla. Stat. §768.28 (1975).

[14] See Trianon Park Condo. Ass’n Inc. v. City of Hialeah, 468 So. 2d 912 (Fla. 1985).

[15] Mandico, 605 So. 2d at 850.

[16] See Hastings v. Demming, 682 So. 2d 1107, 1113 (Fla. 2d DCA 1996).

[17] See Fla. Dep’t of Corr. v. Culver, 716 So. 2d 768 (Fla. 1998); Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812 (Fla. 2004).

[18] Unlike sovereign immunity, which protects both the government and its actors from any type of damages suit unless it has been waived, qualified immunity only insulates government actors for discretionary actions taken in their public position from suits against them in their individual capacity. See Braden Woods Homeowners’ Assoc. v. Mavard Trading, Inc., 277 So. 3d 664, 670 (Fla. 2d DCA 2019).

[19] Tucker, 648 So. 2d at 1187.

[20] Tucker v. Resha, 610 So. 2d 460, 467 (Fla. 1st DCA 1992).

[21] Tucker, 648 So. 2d at 1189 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

[22] Id.

[23] Id. at 1190.

[24] See Fla. R. App. P. 9.130(a)(3) (2012).

[25] This is only worth mentioning because it was later used as a basis to distinguish Roe by the court in Keck.

[26] Roe, 679 So. at 757.

[27] Id. at 758.

[28] The Supreme Court would later reject this characterization of its opinion in Florida Highway Patrol, 288 So. 3d at 1185 (rejecting such an interpretation as “an overreading” of Roe).

[29] Keck, 104 So. 3d at 361-62.

[30] Fla. Stat. §768.28((9)(a) (2005), like the modern version of the statute, provides the following immunity to individual government actors: “No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.”

[31] Keck, 104 So. 3d at 362 (internal quotation marks omitted).

[32] Id.

[33] Keck v. Eminisor, 46 So. 3d 1065 (Fla. 1st DCA 2010).

[34] See Fla. R. App. P. 9.030(a)(2)(A)(v) (imbuing the Florida Supreme Court with discretion to review cases certified by district courts to be matters of great public importance).

[35] Keck, 46 So. 3d at 1068.

[36] See Keck, 104 So. 3d at 360-64 (internal quotation marks omitted).

[37] Id. at 366.

[38] Id. at 365.

[39] Id. at 370 (Pariente, J. concurring, with Lewis, Labarga, and Perry, JJ. concurring).

[40] See In re Amendments to Fla. R. App. P. 9.130, 151 So. 3d 1217 (Fla. 2014).

[41] See Tucker, 648 So. 2d at 1190; In re Amendments, 151 So. 3d at 1217.

[42] See Hastings, 294 So. 2d at 720; Reeves, 889 So. 2d at 821-22.

[43] Reeves, 889 So. 2d at 819.

[44] Jackson, 288 So. 3d at 1182.

[45] Fla. Highway Patrol v. Jackson, 238 So. 3d 430 (Fla. 1st DCA 2018).

[46] Jackson, 288 So. 3d at 1183.

[47] Id. at 1186.

[48] Id.

[49] Id. at 1185-86.

[50] Id. at 1185 (“Every wrongly denied claim of sovereign immunity prolongs unnecessary litigation and siphons resources from the government entity’s core mission.”).

[51] Id. at 1186.

[52] Id.

[53] See Fla. R. App. P. 9.130(3)(F)(i-iii).

[54] See In re Amendments to Florida Rule of Appellate Procedure 9.130, 289 So. 3d 866 (Fla. 2020).

James ShermanJames Sherman serves as a county court judge in the Civil Division of the 15th Judicial Circuit. He has been board certified in appellate practice since 2015. Prior to his appointment to the bench in 2022, he handled civil appeals in both private practice and government practice.

This column is submitted on behalf of the Appellate Practice Section, Carrie Ann Wozniak, chair, and Heather Kolinsky, editor.

Appellate Practice