Florida Bar Journal

The Ins and Outs of Pass-through Jurisdiction

Pursuant to art. V, §3(b)(5) of the Florida Constitution, the Supreme Court of Florida [m]ay review any order or judgment of a trial court certified by the district court of appeal in which an appeal is pending to be of great public importance, or to have a great effect on the proper administration of justice throughout the state, and certified to require resolution by the [S]upreme [C]ourt.

This section of the constitution has come to be known as the one that provides for the Supreme Court’s “pass-through jurisdiction.” The term “pass-through jurisdiction” is a description of the fact that when a case is certified by the district court of appeal, the case, quite literally, “passes through” the district court of appeal, without resolution, to the Supreme Court for immediate review of the trial court’s order or judgment.

Rule 9.125 of the Florida Rules of Appellate Procedure provides the procedural method for review of trial court orders and judgments that have been certified by a district court of appeal as requiring immediate resolution by the Supreme Court.1 Rule 9.125 (the Rule) provides that a district court may issue its certification on its own motion or on the suggestion of a party.2 The jurisdiction of the Supreme Court is invoked immediately upon rendition of the certificate by the district court of appeal.3

The Supreme Court’s jurisdiction, however, is discretionary.4 If a party wishes to have a case certified for immediate review, the party may file with the district court and serve on the parties a suggestion that the order to be reviewed should be certified by the district court to the Supreme Court.5 The suggestion must be filed within 10 days of filing the notice of appeal.6 Any party may file a response to the suggestion within five days of the service of the suggestion.7

The suggestion must be substantially in the form prescribed by the Rule.8 Pursuant to subsection (e) of the Rule, the suggestion must be limited to five pages and contain all of the following elements: 1) A statement of why the appeal requires immediate resolution by the Supreme Court; 2) a statement of why the appeal is of great public importance, or will have a great effect on the proper administration of justice throughout the state; 3) a certificate signed by the attorney stating: “I express a belief, based on a reasoned and studied professional judgment, that this appeal requires immediate resolution by the Supreme Court and a) is of great public importance, or b) will have a great effect on the administration of justice throughout the state”; 4) an appendix containing a conformed copy of the order to be reviewed.9

Even if a suggestion is filed, the district court is not required to rule on it.10 In addition, neither the filing of the suggestion nor the rendition of a certificate will alter the applicable time limitations in a given case or the place of filing.11 Moreover, rehearing is not permitted to review an order granting or denying certification.12

In the end, the jurisdiction of the Supreme Court of Florida does not attach until the court renders an order accepting jurisdiction.13 If the Supreme Court does accept jurisdiction, it will enter its order and notify the parties, the clerk of the district court, and the clerk of the lower tribunal.14 Within 10 days thereafter, the clerk of the district court is required to transfer the record in the case to the Supreme Court.15 The time limitations of the applicable jurisdictional rule ( e.g., Rule 9.110, 9.130, or 9.140) will continue in effect, except that all papers formerly required to be filed in the district court must be filed in the Supreme Court.16

As demonstrated above, the procedural process for invoking the Supreme Court’s discretionary jurisdiction is fairly straightforward. The difficulty comes in predicting the types of cases in which a party should suggest certification by the district court of appeal or in which the district court itself should certify the case for immediate review upon its own motion.

Although the Supreme Court has admonished the district courts of appeal not to rely on the Supreme Court’s “pass-through” jurisdiction to avoid the hard questions,17 the court has not articulated any particular guidelines to assist parties and the district courts in predicting which types of cases the Supreme Court will hear.

At least one district court of appeal, however, has identified the district courts’ responsibility in determining which cases to certify.18 In that case, the First District stated that district courts of appeal are to determine whether

(1) the order or judgment is appealable; (2) the issues raised “are of great public importance” or are likely to “have a great effect on the proper administration of justice throughout the state”; and (3) circumstances exist which require that the Supreme Court immediately resolve the issues, rather than permitting the normal appellate process to run its course. 19

The first question, which is relatively simple, requires merely an analysis of the trial court’s jurisdiction and whether the order sought to be passed through is appealable. Pass-through jurisdiction is available only in cases where the lower tribunal had jurisdiction over the case from the beginning.20

The second and third questions are more complicated, and the case law does not provide the practitioner (or the district courts of appeal) with much guidance as to when a particular case will meet those criteria. For example, in Florida Department of Agriculture and Consumer Services v. Haire, 832 So. 2d 778 (Fla. 4th DCA 2002), the Fourth District certified a case involving the state’s citrus tree canker elimination law for immediate review by the Supreme Court. The trial court had entered a temporary injunction preventing the Department of Agriculture from enforcing the statutes that authorized it to eradicate canker through the destruction of trees. The district court acknowledged that pass-through jurisdiction should only be used rarely, and should not generally be used for temporary or interlocutory orders.21 Nevertheless, it concluded that the temporary injunction was really final because the canker was continuing to spread during the term of the “temporary” injunction. In addition, it concluded that because the issue would be decided by the Supreme Court in any event, the time spent in the district court would be merely superfluous. As a result, it certified the case for immediate review.22

The Supreme Court declined to review the case.23 In so doing, the court concluded that the underlying litigation had been ongoing for years, was still pending in the trial court, and any emergency matters could be handled by the district court of appeal. As a result, the Supreme Court exercised its discretion in favor of not hearing the case.24

Because the Fourth District in Haire had expressed some confusion about when it should certify cases for immediate review, Justice Pariente wrote a lengthy concurring opinion, in which Justice Lewis joined, to explain the court’s decision not to exercise its pass-through jurisdiction.25 Justice Pariente explained that although the court’s pass-through jurisdiction is broad enough to review a non-final order in a case that is still being actively litigated and for which there has been no intermediate appellate court decision, it would be unwise for the court to do so.26 Justice Pariente also distinguished the two cases the Fourth District relied upon, Bismark v. State, 796 So. 2d 584 (Fla. 2d DCA 2001), review denied, 819 So. 2d 132 (Fla. 2002); and State v. Hootman, 697 So. 2d 1259 (Fla. 2d DCA 1997), review granted, 699 So. 2d 1375 (Fla. 1997), by reminding the Fourth District that the Supreme Court had rejected jurisdiction in Bismark and that Hootman was a death penalty case over which the Supreme Court has exclusive jurisdiction.27 In addition, Justice Pariente noted that the court accepted pass-through jurisdictional review of only one other citrus canker case, which sought review of a final judgment rendered by the trial court.28

Justice Pariente further noted that any argument by the department for expedited review was undercut by the fact that it waited five weeks after the preliminary injunction to seek pass-through jurisdiction (which seems a direct violation of the rule) and that it had done nothing to obtain a hearing on a permanent injunction. Justice Pariente stated:

To take jurisdiction over a non-final order granting a temporary injunction, in a case that is still being litigated, in order to attempt to decide the constitutionality of a statutory scheme that has not yet been declared unconstitutional in a final order would involve us in a piecemeal approach to a multifaceted and complex issue. This approach would also be inconsistent with our view that all issues, including those regarding statutory construction and constitutionality, should – where at all possible – first be finally litigated in the trial court and then initially reviewed by the appellate court.

Justice Pariente concluded that because the litigation had been pending for over two years, the Fourth District was in just as good a position as the Supreme Court, if not better, to deal with the interlocutory orders and any incipient emergencies.29 She concluded that if the Supreme Court is ultimately called upon to decide the constitutionality of the canker eradication law, its decision would be a more informed one following intermediate appellate review. Thus, she concurred in the rejection of jurisdiction in that case.30

Having said all that, however, just a few weeks later, the Supreme Court exercised its discretion in favor of reviewing a nonfinal order pursuant to its pass-through jurisdiction.31 In that case, the First District certified for immediate review a temporary injunction that prohibited the Department of State from placing a fiscal impact statement on a ballot for any initiative seeking to amend the Florida Constitution.32

The trial court’s temporary injunction held that the portion of Ch. 2002-390, Laws of Florida, that requires the Department of State to include “an analysis and fiscal impact statement” estimating the “increase or decrease in any revenues or costs to state or local governments” as a result of the adoption of a proposed initiative amending the Florida Constitution was unconstitutional.33 The trial court found that this provision was unconstitutional on its face and applied to persons such as the appellees, whose proposals had been approved for placement on the ballot by the Supreme Court.

In applying the three questions for certification, the First District first determined that the temporary injunction was appealable pursuant to Rule 9.130.34 Reasoning that the trial court’s order, if allowed to stand, would thwart the legislature’s intent to inform the electorate of the fiscal impact of constitutional amendments proposed by initiative, and had the potential to result in a less informed electorate, the First District also concluded that the issues raised were of great public importance.35

Finally, the court concluded that the applicable circumstances warranted immediate Supreme Court review. F.S. §101.62(4)(a) requires supervisors of elections to mail advance absentee ballots at least 45 days before the general election. Because the general election was scheduled to be held on November 5, the absentee ballots were required to be mailed by September 21.36 The issues needed to be resolved before that date and in time for the ballots to be printed and mailed. As a result, the First District concluded that the time constraints created by the state election laws required the Supreme Court to immediately resolve the constitutional questions presented, rather than waiting for the normal appellate process to run its course.

Aware of the Supreme Court’s rejection of Haire, the First District emphasized that its job was to analyze the three-part test, not to predict which cases the Supreme Court would choose to accept for immediate review.37 Nevertheless, the court distinguished Haire. 38 In doing so, the court noted that the Haire litigation had been ongoing for two years and there remained many issues for resolution by the trial court.39

That was not the case in Harris, the First District’s case. Although the injunction was labeled temporary, the record demonstrated that the trial court’s work was essentially at an end.40 The trial court had declared the challenged portions of Ch. 2002-390 unconstitutional. It did not appear that there would be any further substantive litigation in the trial court.

Moreover, while the First District was certain that it could resolve the legal issues presented by the case, if it were to do so, there would be precious little time for Supreme Court review before the ballot printing and mailing deadlines under the state’s election laws.41 Also, because it was apparent that the issues raised would ultimately have to be resolved by the Supreme Court, the First District believed that the Supreme Court should have as much time as possible to do so and to proceed in an orderly fashion. Thus, the First District certified the case for immediate review, and the Supreme Court accepted it.42

Harris illustrates the types of cases that are most likely to be accepted by the Supreme Court for immediate review, i.e., cases that involve issues that are subject to strict time constraints under the election laws.43 Likewise, cases that involve the invocation of the court’s ultimate exclusive jurisdiction, such as those involving the death penalty, are also likely to be accepted for immediate review.44 Finally, the Supreme Court has accepted review by pass-through jurisdiction in at least one criminal sentencing case that would have had broad-reaching effects on the administration of justice and have caused potential conflicts among the district courts of appeal.45

Because case law in this area is limited, however, it is difficult to predict any other types of cases in which the Supreme Court might exercise its discretionary jurisdiction. As the Fourth District has pointed out, the use of pass-through jurisdiction should be rare, for its use bypasses the constitutional right to review of a case by the district courts of appeal.46 Thus, before seeking pass-through jurisdiction, a party should give serious consideration to the questions set forth in Harris, including whether the circumstances involved in the case are sufficiently important or will truly affect the proper administration of justice throughout the state, before seeking to invoke the Supreme Court’s discretionary jurisdiction pursuant to art. V, §3(b)(5) of the Florida Constitution.


1 See Fla. R. App. P. 9.125.

2
Fla. R. App. P. 9.125(a).

3
Fla. R. App. P. 9.125(b); see also Committee Notes, 1980 Amend. (indicating that subdivision (b) makes it clear that certification by the district court is self-executing).

4 See Fla. Const. art. V, §3(b)(5), (indicating that the Supreme Court “may” review trial court orders or judgments certified as requiring immediate resolution). See also Harris v. Coalition to Reduce Class Size, 824 So. 2d 245, 246 (Fla. 1st D.C.A.) (noting that the Supreme Court’s pass-through jurisdiction is discretionary), review granted, 827 So. 2d 959 (Fla. 2002).

5
Fla. R. App. P. 9.125(c).

6 Id.

7
Fla. R. App. P. 9.125(d).

8
Fla. R. App. P. 9.125(c).

9
Fla. R. App. P. 9.125(e).

10
Fla. R. App. P. 9.125(f).

11 Id.

12 Id.

13
Fla. R. App. P. 9.125(g).

14 Id.

15 Id.

16 Id.

17 See Carawan v. State, 515 So. 2d 161, 162 n.1 (Fla. 1987), superseded by statute on other grounds as stated in Clark v. State, 530 So. 2d 519, 519 (Fla. 5th D.C.A. 1988).

18 See Harris, 824 So. 2d at 246-47.

19 Harris, 824 So. 2d at 246-47; see also Am. Civil Liberties Union of Fla., Inc. v. Hood, 2004 WL 1887536, *1 (Fla. 1st D.C.A. Aug. 25, 2004), review granted, ___ So. 2d ___ (Fla. August __, 2004).

20 Kainen v. Harris, 769 So. 2d 1029, 1038 (Fla. 2000) (Wells, J., concurring).

21 Florida Department of Agriculture and Consumer Services v. Haire, 832 So. 2d at 781 (Fla. 4th DCA 2002
).

22 Id. at 782.

23 See Fla. Dep’t of Ag. & Consumer Servs. v. Haire, 824 So. 2d 167 (Fla. 2002).

24 Id.

25 Id. at 167-69.

26 Id. at 167-68.

27 Id. at 168.

28 Id.

29 Id.

30 Id. at 169.

31 See Harris, 827 So. 2d at 959 (Fla. 2002).

32 Harris, 824 So. 2d at 247.

33 Id. at 247.

34 Id. at 247.

35 Id.

36 Id.

37 Id. at 248.

38 Id. at 247-48.

39 Id. at 248.

40 Id. at 248.

41 Id.

42 See Harris, 827 So. 2d at 959 (Fla. 2002).

43 See, e.g., Fladell v. Palm Beach County Canvassing Bd., 772 So. 2d 1240 (Fla. 2000) (accepting pass-through jurisdiction in an election law case); Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1273 (Fla. 2000) (same); Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1220 (Fla. 2000), cert. granted in part by, Bush v. Palm Beach County Canvassing Bd., 531 U.S. 1004 (2000), vacated by Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70 (2000) (same); Am. Civil Liberties Union of Fla., Inc. v. Hood, 881 So. 2d 664 (Fla. 1st D.C.A. 2004) (certifying the question of whether the ballot summary and title for the proposed constitutional amendment that would allow the legislature to pass a parental notification law for minors seeking an abortion adequately communicated the effect of the amendment), review granted, 882 So. 2d 384 (Fla. August 27, 2004).

44 See, e.g., Hootman, 699 So. 2d 1375 (Fla. 1997); see also Armstrong v. Harris, 773 So. 2d 7 (Fla. 2000), cert. denied, 532 U.S. 958 (2001).

45 See Heggs v. State, 718 So. 2d 263 (Fla. 2d D.C.A.), review granted, 720 So. 2d 518 (Fla. 1998).

46 See Haire, 832 So. 2d at 781.

Tracy S. Carlin is a partner in the appellate law firm of Mills & Carlin, P.A. She is board certified by The Florida Bar in appellate practice. This column is submitted on behalf of the Appellate Practice Section, Susan W. Fox, chair, and Tracy R. Gunn, Kristen A. Norse, and Heather M. Lammers, editors.