Pass-Through Jurisdiction: Potential Fast Track to Highest Appellate Review

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With few exceptions, appeals from circuit court orders are taken to the district court of appeal (DCA). A fraction of the resulting appellate decisions may eventually be reviewed by the Florida Supreme Court. Appeals from county court orders normally go to the circuit court sitting in its appellate capacity. A small percentage of the resulting circuit court appellate decisions may receive limited review by the DCA in second-tier certiorari proceedings.

But what if you receive a circuit court order of such importance that you believe it needs to be reviewed immediately and directly by the Florida Supreme Court – or a county court order that needs direct, plenary review by the DCA? The Florida Rules of Appellate Procedure provide methods summarized below, by which certain appeals in the DCA may be transferred to the Florida Supreme Court, and certain appeals from a county court can bypass the circuit court and go directly to the DCA.

Rule 9.125

In an appeal pending in a DCA (normally from a circuit court order), any party to the appeal may seek discretionary pass-through jurisdiction under Rules 9.030(a)(2)(B) by filing a suggestion under rule 9.125 that the order should be certified by the district court as requiring immediate resolution by the Florida Supreme Court. The suggestion must assert that the issues are of great public importance or have a great effect on the proper administration of justice throughout the state. This procedure usually applies to circuit court orders, but it can also apply to final county court orders declaring invalid a Florida statute or provision of the state constitution because district courts of appeal of have jurisdiction over those county court orders. Rule 9.030(b)(1)(A).

The district court can also make a pass-through certification on its own initiative. If the certification is suggested by a party, the suggestion must be filed within 10 days after the filing of the notice of appeal. Any response must be filed within five days thereafter. Rule 9.125(c), (d).

The suggestion is limited to five pages and must follow the form described in Rule 9.125(e). Among other things, it must explain why the appeal requires immediate resolution by the Florida Supreme Court instead of having the DCA resolve the case as usual. The suggestion must also explain why the appeal is of great public importance or why it will have a great effect on the proper administration of justice throughout the state. The filing attorney must certify “a belief, based on a reasoned and studied professional judgment,” that those conditions are met. Rule 9.125(e)(3).

Answering Legal Banner

The district court is not obligated to rule on the suggestion. Rule 9.125(f). If it chooses to make the certification, the rendition of the certificate invokes the jurisdiction of the Florida Supreme Court. Rule 9.125(b). Its jurisdiction will formally attach when it renders an order accepting jurisdiction. Rule 9.125(f), (g). If the Supreme Court declines jurisdiction, the appeal will proceed in the DCA where it was docketed. It may later be possible, in limited circumstances, to seek discretionary Supreme Court review of the DCA’s resulting appellate decision.

Rule 9.160

For county court orders, Rule 9.160 provides a bypass procedure analogous to Rule 9.125. Appellate review of county court orders is normally taken to the circuit court in its appellate capacity, but rule 9.160 allows for invocation of the discretionary jurisdiction of DCA described in rule 9.030(b) (4) to hear appeals directly from county court orders that the county court has certified to be of great public importance. Rule 9.160(a).

A party may suggest that a county court order be certified, but the decision to certify is within the absolute discretion of the county court and may also be made on the county court’s own initiative. The certification must include findings of fact and conclusions of law along with a concise statement of the issue or issues of great public importance. Rule 9.160(d).

If the county court certifies the order as being of great public importance, the appeal will completely bypass the circuit court because the appeal must be taken to the DCA, and the DCA will decide all issues that would have been subject to appeal to the circuit court. Rule 9.160(b), (f)(1). The review is initiated in the county court by filing a notice of appeal to the DCA. The notice should mention the certification. Rule 9.160(b). This notice transfers temporary jurisdiction to the DCA until it issues an order exercising its discretion to accept or reject jurisdiction. Rule 9.160(e)(2). If the district court declines to accept the appeal, it will transfer the case to the circuit court that would have received the appeal in the normal course. Rule 9.160(f)(2).

In sum, these pass-through and bypass procedures may not often apply, but they can be powerful tools for the appellate lawyer in appropriate cases. Robin Bresky

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