Writ of Certiorari Review

WRIT OF WRIT OF CERTIORARI REVIEWCERTIORARI REVIEWOF ADVERSE LOCAL OF ADVERSE LOCAL

AGENCY AGENCY DETERMINATIONSDETERMINATIONS

Why Certiorari?Why Certiorari?

• State court vs Federal CourtState court vs Federal Court– Jurisdictional issues;Jurisdictional issues;– Scope of ReviewScope of Review– Judicial interest Judicial interest – SpeedSpeed– Guarantee of reviewGuarantee of review– Local politicsLocal politics– Availability of Interim Injunctive ReliefAvailability of Interim Injunctive Relief

What is Certiorari?What is Certiorari?

• Various types - we are discussing Various types - we are discussing – Appellate review of local agency Appellate review of local agency

decisions by Circuit Court Appellate decisions by Circuit Court Appellate DeptDept..

What is reviewable?What is reviewable?

• Quasi judicial decisions of agencies, Quasi judicial decisions of agencies, boards and local government boards and local government commissions not directly appealable commissions not directly appealable by way of another provision of by way of another provision of general law. general law.

Fla. R. App. P. 9.100(c)(2)Fla. R. App. P. 9.100(c)(2)


• Determinations governed by APA are Determinations governed by APA are not subject to writ of cert in circuit not subject to writ of cert in circuit court. Appeal is directly to Court of court. Appeal is directly to Court of Appeal.Appeal.

• Decision probably does not have to be Decision probably does not have to be in writing to be reviewable. in writing to be reviewable.

• Certain constitutional challenges may Certain constitutional challenges may not be reviewable by writ of cert. not be reviewable by writ of cert.


• A local PHA decision with respect to A local PHA decision with respect to eligibility for Section 8 benefits is eligibility for Section 8 benefits is reviewable reviewable

• Most PHA hearing decisions are Most PHA hearing decisions are reviewable by cert. (must be quasi-reviewable by cert. (must be quasi-judicial)judicial)

Standard of ReviewStandard of Review

• Circuit Court, Appellate Dept. (first Circuit Court, Appellate Dept. (first tier) Standard tier) Standard – (1) whether procedural due process is (1) whether procedural due process is

afforded;afforded;– (2) whether the essential elements of (2) whether the essential elements of

the law were observed;the law were observed;– (3) whether the administrative (3) whether the administrative

findings and judgment are supported by findings and judgment are supported by ‘competent substantial evidence’;‘competent substantial evidence’;


• Whether procedural due process is affordedWhether procedural due process is afforded

While the quality of due process necessary in a While the quality of due process necessary in a quasi-judicial proceeding is not the same as a full quasi-judicial proceeding is not the same as a full judicial hearing, “parties must be able to present judicial hearing, “parties must be able to present evidence, cross-examine witnesses, and be informed evidence, cross-examine witnesses, and be informed of all the facts upon which the commission acts.” of all the facts upon which the commission acts.” Coral Reef Nurseries, Inc. v. Babcock, Co.,Coral Reef Nurseries, Inc. v. Babcock, Co., 410 So.2d 410 So.2d 648, 652 (Fla. 3d DCA 1982); Jennings v. Dade 648, 652 (Fla. 3d DCA 1982); Jennings v. Dade County, et al., 589 So.2d 1337, 1341 (Fla. 3rd DCA County, et al., 589 So.2d 1337, 1341 (Fla. 3rd DCA 1991)1991)


• ““essential elements of the law”essential elements of the law”

Local government agencies must follow their Local government agencies must follow their own rules. own rules. Miami-Dade County v. Omnipotent Miami-Dade County v. Omnipotent Holdings, Inc.,Holdings, Inc., 863 So.2d 375, 376 (3rd DCA 863 So.2d 375, 376 (3rd DCA 2003)(“Neither a quasi-judicial body nor a 2003)(“Neither a quasi-judicial body nor a reviewing circuit court is permitted to add to or reviewing circuit court is permitted to add to or detract from these criteria (the local regulations) detract from these criteria (the local regulations) when making its assigned determination.”) and when making its assigned determination.”) and cases cited therein.cases cited therein.


• ““essential elements of the law”essential elements of the law”– “ “essential elements” are not limited to essential elements” are not limited to

federal regulations;federal regulations;– “ “essential elements” should include all essential elements” should include all

written local rules and procedures; written local rules and procedures; – “ “essential elements” should include essential elements” should include

local Section 8 hearing & notice local Section 8 hearing & notice procedures as well as any elements procedures as well as any elements regarding the basis for termination. regarding the basis for termination.


• whether the administrative findings whether the administrative findings and judgment are supported by and judgment are supported by ‘competent substantial evidence‘competent substantial evidence

• Court does not reweigh the evidenceCourt does not reweigh the evidence• Court does not review adverse evidenceCourt does not review adverse evidence• Court looks only at supportive evidence and Court looks only at supportive evidence and

determines if it is ‘competent and substantial.’determines if it is ‘competent and substantial.’• Very deferential – any competent and Very deferential – any competent and

substantial evidence is sufficient.substantial evidence is sufficient.

Procedure Procedure

• Time Limits for FilingTime Limits for Filing Writ must be “filed within thirty days of rendition Writ must be “filed within thirty days of rendition

of the order to be reviewed.”of the order to be reviewed.”

Rule 9.100(c)Rule 9.100(c)

In Public Housing context when is the order final In Public Housing context when is the order final – is appeal to the Director possible or necessary? – is appeal to the Director possible or necessary?

ProcedureProcedure

Pleadings Required Pleadings Required – Petition Rule 9.100Petition Rule 9.100– Appendix Appendix Rule Rule 9.100(g) 9.100(g)

– No need for separate recordNo need for separate record

Procedure – Petition Procedure – Petition

• Caption Caption – Writ of Cert to Circuit Court Appellate Dept. Writ of Cert to Circuit Court Appellate Dept.

Pursuant to Rule 9.100Pursuant to Rule 9.100– Include the Lower Tribunal Case # Include the Lower Tribunal Case #

• Contents Contents – Jurisdictional BasisJurisdictional Basis– Factual basis for reliefFactual basis for relief– Nature of relief sought Nature of relief sought – Argument with citations to authorityArgument with citations to authority– Limited to 50 pagesLimited to 50 pages

Procedure – PetitionProcedure – Petition

• Formal Appellate Font RulesFormal Appellate Font Rules– Times New Roman 14 pt/ Courier New Times New Roman 14 pt/ Courier New

12pt12pt

• Certificate of Compliance with Certificate of Compliance with Font/Typeface Rules Font/Typeface Rules

• Double-spaced (except quotes and Double-spaced (except quotes and footnotes)footnotes)

• Appellate Uniform Citations rulesAppellate Uniform Citations rules• 1 inch margins1 inch margins

Procedure – Appendix Procedure – Appendix

• Must be filed in every case;Must be filed in every case;• Must contain “such portions of the Must contain “such portions of the

record deemed necessary to an record deemed necessary to an understanding of the issues understanding of the issues presented.” presented.”

• Petition must reference relevant Petition must reference relevant pages of the Appendix.pages of the Appendix.

• Separately bound or separated from Separately bound or separated from Petition.Petition.

Procedure – AppendixProcedure – Appendix

• ContentsContents– Decision appealed from;Decision appealed from;– Transcript (if needed for your review);Transcript (if needed for your review);– Exhibits, Documents from record;Exhibits, Documents from record;– Appendix must be limited to the Appendix must be limited to the

record; record; – Circuit Court review cannot extend Circuit Court review cannot extend

beyond the record of the quasi-judicial beyond the record of the quasi-judicial hearing.hearing.

Procedure – FilingProcedure – Filing

• Petition & Appendix are filed with Circuit Petition & Appendix are filed with Circuit Court – Appellate Dept. w/filing fee;Court – Appellate Dept. w/filing fee;

• Make sure clerk is aware that it is Make sure clerk is aware that it is appellate pleading;appellate pleading;

• Must be Filed with proof of service by Must be Filed with proof of service by mail on Respondents (personal service mail on Respondents (personal service not necessary as this is essentially an not necessary as this is essentially an appeal of the lower tribunal proceeding); appeal of the lower tribunal proceeding);

Procedures – Post FilingProcedures – Post Filing

• Circuit Court issues Order to Show Circuit Court issues Order to Show CauseCause– Generally issued automatically and shortly Generally issued automatically and shortly

after filing;after filing;– No set time period for issuance but if there No set time period for issuance but if there

is significant delay make sure pleading was is significant delay make sure pleading was correctly filed;correctly filed;

– OSC provides Respondents with date that OSC provides Respondents with date that response brief is due;response brief is due;

– No other pleadings (such as Motion to No other pleadings (such as Motion to Dismiss)Dismiss)

Procedures – Post FilingProcedures – Post Filing

• Response Brief – can supplement the Response Brief – can supplement the Appendix;Appendix;

• Limited to 50 pages;Limited to 50 pages;• Must comply with same technical Must comply with same technical

formatting requirements;formatting requirements;

• Reply Brief – is due twenty days after Reply Brief – is due twenty days after Response;Response;

• Limited to 15 pages.Limited to 15 pages.

ArgumentArgument

• This is probably an interesting case This is probably an interesting case to these judges;to these judges;

• Mostly handling appeals from Mostly handling appeals from County Court;County Court;

• Care about local politics;Care about local politics;• Level of preparation varies;Level of preparation varies;

DecisionDecision

• Circuit Court can only Quash the Circuit Court can only Quash the decision of the lower tribunal and decision of the lower tribunal and remand the case to them.remand the case to them.

AppealAppeal

• Only appeal is by Writ of Cert to the Only appeal is by Writ of Cert to the District Court of Appeal (second tier District Court of Appeal (second tier review)review)

• Second tier review is extremely Second tier review is extremely limited limited – Did Circuit Court provide due processDid Circuit Court provide due process– Did Circuit Court apply correct law.Did Circuit Court apply correct law.