Page 28 - Palm Beach Vol 7 No 2

Appellate Law
Pass-Through Jurisdiction: Potential Fast Track to Highest Appellate Review
BWy Robin Bresky, Esq., and Randall Burks, Esq. ith few exceptions, appeals
from circuit court orders are taken to the district court of appeal (DCA). A fraction of
the resulting appellate decisions may even- tually 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? e Florida Rules of Appellate Procedure provide methods summarized be- low, 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 l- ing a suggestion under rule 9.125 that the or- der should be certi ed by the district court as requiring immediate resolution by the Florida Supreme Court. e suggestion must assert that the issues are of great public importance or have a great e ect on the proper administra- tion of justice throughout the state. is proce- dure usually applies to circuit court orders, but it can also apply to nal 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).
e district court can also make a pass- through certi cation on its own initiative. If the certi cation is suggested by a party, the suggestion must be led within 10 days a er the ling of the notice of appeal. Any response must be led within ve days therea er. Rule 9.125(c), (d).
e suggestion is limited to ve pages and must follow the form described in Rule 9.125(e). Among other things, it must explain why the appeal requires immediate resolu- tion by the Florida Supreme Court instead of having the DCA resolve the case as usual. e suggestion must also explain why the appeal is of great public importance or why it will have a great e ect on the proper administration of justice throughout the state. e ling attor- ney must certify “a belief, based on a reasoned and studied professional judgment,” that those conditions are met. Rule 9.125(e)(3).
e district court is not obligated to rule on the suggestion. Rule 9.125(f). If it chooses to make the certi cation, the rendition of the cer- ti cate 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 pro- vides a bypass procedure analogous to Rule 9.125. Appellate review of county court or- ders is normally taken to the circuit court in its appellate capacity, but rule 9.160 allows for invocation of the discretionary juris- diction of DCA described in rule 9.030(b) (4) to hear appeals directly from county court orders that the county court has certi- ed to be of great public importance. Rule 9.160(a).
A party may suggest that a county court order be certi ed, 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. e certi cation must include ndings of fact and conclusions of law along with a concise statement of the is- sue or issues of great public importance. Rule 9.160(d).
If the county court certi es the order as be- ing 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). e review is initiated in the county court by ling a notice of appeal to the DCA. e notice should mention the cer- ti cation. Rule 9.160(b). is notice transfers temporary jurisdiction to the DCA until it is- sues an order exercising its discretion to ac- cept 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 o en apply, but they can be powerful tools for the appellate lawyer in appropriate cases.
Robin Bresky, of The Law Of ces of Robin Bresky in Boca Raton, is an appellate attorney who handles civil and criminal appeals and litigation support matters throughout Florida. Robin is a member of The Florida Bar board of governors. She is the president of the National Conference of Women’s Bar Associations and is a past president of the Florida Association for Women Lawyers. Randall Burks is an ex- perienced appellate attorney with the rm. You can visit www.BreskyAppellate.com for more information.
Robin Bresky, Esq.
Randall Burks, Esq.
28 | www.AttorneyAtLawMagazine.com