Extraordinary Writs in Florida
Writs are extraordinary remedies. They are governed by very specific substantive and procedural standards, and are different from appeals. Writs are original proceedings in the appellate court. They are initiated by filing a petition directly in the appellate court. Florida Rule of Appellate Procedure 9.100 sets forth the requirements of these extraordinary writs.
- Cannot use certiorari to bypass appellate rules governing appeals from nonfinal orders. Rule 9.130.
- Nonfinal order must (1) depart from the essential requirements of law; (2) causes irreparable injury; (3) that cannot be remedied on a final appeal in the case.
- Certiorari must be filed within 30 days of rendition of order to be reviewed.
- No record is transmitted.
- Petitioner should rely on Appendix which complies with rule 9.220.
- Must serve on opposing counsel and judicial officer who entered order.
- Denial of petition is not res judicata. It is not a determination of the merits of the case.
- Certiorari is often used to review pretrial orders compelling discovery in civil cases. (Irreparable harm results from release of privileged documents.)
- Mandamus is used to enforce an established legal right by compelling a public officer or agency to perform a duty required by law.
- Writ of mandamus may also be used against an officer or director of a private corporation and a trustee common, guardian, or personal representative of an estate, as long as the officials charged by law with performing the duties sought to be compelled.
- That legal duty must be ministerial, and not discretionary.
- Party seeking the writ must have a clear legal right to compel performance of the act.
- Mandamus is not appropriate if there is another adequate remedy.
- Mandamus will not live to enforce private rights.
- Mandamus can compel only a ruling – but not a particular ruling.
- Mandamus is an appropriate remedy to test the correctness of an order determining that a trial court lacks jurisdiction.
- No time limit. But any delay is subject to the equitable doctrine of latches.
- Do not name trial judge as a respondent in the caption. Judge can be named in the body of the petition.
- No record but appendix under Rule 9.220.
- Subject to requirements set forth in Rule 9.100.
- A writ of prohibition is used to prevent a lower tribunal from the improper exercise of judicial power.
- As a general rule, remedy is preventative and not corrective.
- Cannot have another available remedy.
- Can be used to restrain the improper exercise of jurisdiction. (Subject Matter Jurisdiction)
- There is one special function of a writ of prohibition: to review the denial of a motion to disqualify a trial judge.
- Not subject to jurisdictional time limit. But subject to equitable doctrine of laches.
- An Order to Show Cause from the appellate court immediately stays all further proceedings in the lower court. Fla. R. App. P. 9.100(h).
- Denial without opinion is not res judicata.
- Appendix and not a record. Rule 9.220.
IV. Habeas corpus
- Habeas corpus is used to challenge the legality of the detention or restraint of a person and to obtain the person’s prompt release.
- The detained party is the petitioner. The person having immediate custody and the ability to physically produce the petitioner is the respondent.
- An application for the writ of habeas corpus may be made by another person in the interest of the person illegally detained, including “an agent, or friend, wife, or husband, or by a parent for his child, a guardian for his ward, or special bail for his principal.”
- Usually associated with criminal law, habeas corpus is actually an independent civil proceeding that is available in both civil and criminal cases.
- Habeas corpus can be used in civil cases in connection with child custody proceedings.
- Requirements of Rule 9.100 applies.
V. Quo Warranto
- A writ of quo warranto is a civil remedy employed to determine a person’s right to hold public office or challenge a public officer’s attempt to exercise some right or privilege that derives from the state.
- Inappropriate when there is an adequate remedy available by statute. Rule 9.100 applies.
- No time limit.
- This remedy is most often used to challenge the right of an individual to hold a public office. It is also often used to challenge the authority of a public officer to take certain actions in an official capacity.
- Rule 9.100 applies.
VI. All Writs
- The supreme court, district courts of appeal, and circuit courts each have a general power to issue all writs necessary to the complete exercise of their jurisdiction.
- Also known as constitutional writs. These writs are used to preserve the power of the court to fully and effectively decide cases that have been, or will be, presented to the court on independent jurisdictional grounds.
- This writ essentially preserves the court’s ability to provide relief.
- A stay of lower court proceedings is the most common reason for invoking the all writs power.
- Subject to the requirements of Rule 9.100.
VII. Review of orders excluding the press.
- Florida Rule of Appellate Procedure 9.100 (d) applies.
- An order excluding the press or members of the public from access to any judicial proceeding can be challenged by filing a petition in the appellate court under Rule 9.100 (d).
- Concerns infringement of First Amendment rights.
- Types of orders often reviewed under this unique rule our orders sealing court files, orders restricting access to pretrial discovery, gag orders, and orders excluding the press and public from attendance at court hearings.
- Review of these orders are expedited.
- Subject to the requirements of Rule 9.100 governing original proceedings.
- Note jurisdictional time limit. But still subject to claim of mootness.
- Appellate court may grant a stay on its own motion or on the motion of a party under rule 9.110 (d) (2).