FLORIDA APPEALS JOURNAL™
JOURNAL ENTRY 9.2020

A writ of certiorari is used to remedy the trial court's action that exceeds its authority or departs from the essential requirements of law and there's no legal remedy. The action has to result in irreparable harm to the client. It is a tool you'll want to use only in very limited circumstances. Although it is not an appeal, it is brought to the appellate court.

A petition for a writ of certiorari is very different from other actions as defined in Florida Rules of Appellate Procedure, and has its own rules and own timeline. You're not filing a notice of appeal as in other circumstances.The petition is your argument and it should contain all the pertinent facts. This is where you must make your case to the appeals court that the trial court's action causes irreparable harm to your client. An appendix with the key record documents that support your argument also must be included.

If the appellate court believes that you have laid out a prima facie case, they'll issue an order to show cause and set up a schedule for when a response will be due from the other side, and when a reply will be due. Then they'll render a decision, and they can grant the writ or deny the writ.

Just because you disagree with what the circuit court did in its appellate court capacity that’s not enough. There’s going to have to be a denial of the procedural due process, departure from central requirements in such a way as to cause a true miscarriage of justice.

If you want to challenge the constitutionality of a particular law, you have to do that through an original proceeding before the circuit court. You should know this because people have tried to use the petition for certiorari for these issues. You can’t do it.

There are several instances when can you use the procedure. You can have a motion to withdraw as counsel. If that’s denied, people have used it for that. An order granting or denying motion to disqualify counsel, you can do that, too. I’ve seen it used for discovery orders that violate the constitutional right to privacy, discovery order compelling production of documents of a non-party.

The most popular reason it’s used is to deal with “cat-out-of-the-bag” discovery. So a trial court issues an order compelling production of some sensitive documents, trade secrets, for example, or fundamental privacy issues. Then you’re going to want to petition for a writ of certiorari saying the trial court was wrong. You definitely want to get that in a petition for a writ of certiorari. That’s a classic reason to petition for cert because you’re going to be sustaining irreparable harm – if the cat’s out of the bag you can’t put it back in. So that’s an example of irreparable harm and it’s not capable of remedy by final appeal.

COURTROOM SAVVY: You can’t use certiorari jurisdiction to create new law where the order on review recognizes the correct general law and has applied the correct law to a new set of facts. Certiorari isn’t the avenue of relief you want for that kind of issue.

CITATIONS
Florida Rule of Appellate Procedure 9.040(c).
Florida Rule of Appellate Procedure 9.130.
Belair v. Drew, 770 So.2d 1164 (Fla. 2000).
Philip J. Padovano, Florida Appellate Practice §30 (2019 ed.).
Russ v. Brooksville Health Care Ctr., 109 So.3d 1266 (Fla. 1st DCA 2013).

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