Imagine you find yourself in the following position. You represent a real estate developer who has been denied approval for a project by a local government. The developer previously challenged the local government’s decision in state circuit court, seeking both a writ of mandamus ordering the local government to approve the project and, alternatively, a writ of certiorari quashing the decision withholding that approval.[1] The circuit court has just denied the relief requested by the developer. Now you’ve been hired to challenge the circuit court’s decision in the district court of appeal. You face questions: How do you invoke the district court’s jurisdiction? Do you file a notice of appeal in the circuit court? Or do you file a petition for certiorari, or perhaps for some other extraordinary writ, in the district court?
The answers matter. If review of the circuit court’s decision is by certiorari, then to overturn that decision, you have to show that the circuit court failed either to “afford[] procedural due process” or to “apply the correct law.”[2] Your only appellate remedy, if you manage to make such a showing, is an order quashing the circuit court’s decision.[3] On certiorari review, a court may not “direct[] that any particular action be taken” by the lower tribunal.[4] Review by appeal, on the other hand, is not subject to that limitation.[5]
You have little time to choose the appropriate vehicle for district court review.[6] If an appeal is the proper vehicle, you can prepare your initial brief at an unhurried pace. The notice of appeal is due within 30 days of rendition of the circuit court’s order,[7] but you have another 70 days after that to file your initial brief.[8] But if certiorari is the proper vehicle for review, you had better start writing. Your petition — complete with “argument in support of the petition and appropriate citations of authority”[9] — is due within 30 days of the rendition of the circuit court’s order.[10] And neither the circuit court nor the district court can extend that deadline,[11] although certain motions may toll rendition of the circuit court’s order.[12]
On the one hand, if you only want to challenge the portion of the circuit court’s order that denies certiorari, the choice is easy. You file a petition for certiorari with the district court.[13] If, on the other hand, you want to challenge the portion of the circuit court’s order that denies mandamus, the way forward is less clear. This article attempts to provide some clarity. The caselaw on this question is not entirely consistent. Some cases seem to suggest that a circuit court order denying mandamus is always reviewed by appeal;[14] others suggest that review is by certiorari.[15] The guiding principle, however, is that wherever circuit court proceedings function as an appeal — regardless of whether the remedy sought in that forum is mandamus, certiorari, or something else — the circuit court’s decision is reviewable only by certiorari. Although the application of that principle does not always yield an obvious answer, a mandamus petition challenging a local land-use decision most often functions as an appeal. So a party seeking review of a circuit court’s ruling on such a petition will typically have to file a petition for certiorari in the district court.
The Basic Principles
The general principles that determine whether an appeal or certiorari is the appropriate vehicle for review of a circuit court’s decision are articulated in Florida Rule of Appellate Procedure 9.030(b). Subsection (b)(1) of that rule authorizes district courts of appeal to “review, by appeal: (A) final orders of trial courts, not directly reviewable by the supreme court or a circuit court.”[16] Subsection (b)(2), however, provides in part that “[t]he certiorari jurisdiction of district courts of appeal may be sought to review:…(B) final orders of circuit courts acting in their review capacity.”[17]
The proper vehicle for district court review, thus, turns on whether, in ruling on a petition for an extraordinary writ, the circuit court acted as a “trial court” or instead “act[ed] in [its] review capacity.”[18] As the Fifth District Court of Appeal explained in State v. Grate, 252 So. 3d 351 (Fla. 5th DCA 2018), in the context of a case in which it was asked to review a circuit court order denying a petition for a writ of quo warranto:
Review of extraordinary writ proceedings is permissible by direct appeal or by certiorari depending on the nature of the petition filed. If the petition for extraordinary relief is filed in the circuit court to review an order by a lower tribunal, the resulting order of the circuit court is reviewable in the district court of appeal by certiorari and not by appeal. However, when a petition for extraordinary relief initiates a new civil action in the circuit court and is not used as a method of reviewing an order of the county court or a local administrative tribunal, the final order is reviewed by appeal.[19]
In short, a party is not entitled to two appeals.[20] Consequently, an appeal to the district court is appropriate only if the circuit court proceedings did not themselves function as a vehicle for “review [of] an order by a lower tribunal.”[21] If the circuit court proceedings were in substance an appeal from a judicial or quasi-judicial decision of a lower tribunal, the circuit court’s decision can be reviewed only by certiorari.[22]
When the party initiating circuit court proceedings seeks only certiorari, the application of these principles is straightforward, since certiorari proceedings are always a vehicle for “review [of] an order by a lower tribunal.”[23] As the Florida Supreme Court explained in De Groot v. Sheffield, 95 So. 2d 912 (Fla. 1957), “certiorari is a discretionary writ bringing up for review by an appellate court the record of an inferior tribunal or agency in a judicial or quasi-judicial proceeding.”[24] Accordingly, a circuit court’s decision on a petition for certiorari is reviewable in the district court only by certiorari.[25]
Mandamus as an Appellate Remedy
The application of the same principles to a circuit court’s decision on a petition for mandamus is more complicated. Traditionally, mandamus has been understood as “an original proceeding,” and “not an appellate writ.”[26] The Florida Supreme Court has even insisted that “[m]andamus may not be employed as an appellate remedy to review the quasi-judicial action of an administrative agency.”[27] Nevertheless, as that same court has recognized, mandamus has in some contexts taken on the role of an appellate remedy by which circuit courts review quasi-judicial decisions. A mandamus proceeding in a circuit court can now be either an original proceeding or, at least sometimes, an appellate proceeding.[28] The proper vehicle for district court review, thus, depends on which role the circuit court mandamus proceedings played. That the petitioner sought mandamus does not by itself resolve the issue.
Florida courts have acknowledged the use of mandamus as an appellate remedy perhaps most explicitly in the context of challenges to decisions of the Florida Parole Commission. The Florida Supreme Court’s decision in Sheley v. Florida Parole Commission, 720 So. 2d 216 (Fla. 1998), is especially instructive.
In Sheley, the circuit court denied an inmate’s petition for mandamus relief overturning the Parole Commission’s order suspending his presumptive parole release date and declining to authorize an effective parole release date.[29] The First District Court of Appeal treated the inmate’s appeal from the circuit court’s ruling as a petition for certiorari and denied that petition.[30] The First District explained:
We acknowledge that if mandamus is used to initiate a new civil action in the circuit court, the resulting final order is subject to review by appeal.. . . These principles cannot be applied in the present case, however, because the petition for writ of mandamus was filed in the circuit court as an appellate remedy to review quasi-judicial action of a lower tribunal.[31]
The Supreme Court approved the First District’s decision, rejecting the inmate’s contention that the First District had erred in treating his appeal as a petition for certiorari.[32] The court reasoned that “once an inmate has had a full review on the merits of a Parole Commission order in the circuit court, he or she is not entitled to a second plenary appeal of the order in the district court.”[33] Because the mandamus proceedings in the circuit court were in substance an appeal from the decision of a lower tribunal — the Parole Commission — the inmate could seek district court review only by certiorari.
The dual role of mandamus as both an original remedy and an appellate remedy is not always acknowledged. Even after Sheley, courts have sometimes asserted broadly — without apparent regard to whether mandamus was sought as an original or appellate remedy in the circuit court — that “[d]irect appeal is the proper vehicle for appellate review of a mandamus petition.”[34] But most cases containing such statements can be reconciled with the principles established by Rule 9.030(b) and Sheley. In some such cases, mandamus does not appear to have been sought as an appellate remedy in the circuit court.[35] Some cases, perhaps, can also be explained by the principle that review of mandamus proceedings by appeal is appropriate, regardless of the original or appellate character of those proceedings, if “the circuit court proceeding is concluded on grounds other than the merits,”[36] such as mootness.[37]
In sum, notwithstanding occasional statements apparently to the contrary, the state of the law after Sheley is aptly described by Judge Philip J. Padovano in his opinion for the First District Court of Appeal in Browning v. Young, 993 So. 2d 64 (Fla. 1st DCA 2008). “Mandamus is now frequently used in the circuit court as an appellate remedy to review judicial or quasi-judicial actions of lower tribunals. When that is the case, further review in the district court of appeal is by certiorari and not by a plenary appeal.”[38] However, when mandamus relief in the circuit court is “employed…in the way it was originally intended, as a civil remedy to compel a public official to discharge a ministerial duty,” and not as a vehicle for “appellate review of a judicial or quasi-judicial decision,” district court review is by appeal.[39]
Mandamus as a Vehicle for Challenging Local Land-Use Decisions
Mandamus is sometimes used to challenge local land-use decisions. For example, mandamus has been sought, sometimes successfully, in circuit court proceedings challenging the denial of approval of a proposed subdivision plat,[40] the denial of an application to vacate a subdivision plat,[41] and the denial of approval of a site plan or final development plan,[42] among other things.[43] More generally, some authority suggests that mandamus is available to compel a local government to issue an order authorizing development whenever “the legal requirements are met and no element of discretion remains.”[44]
District courts reviewing circuit court decisions on mandamus petitions in such contexts have devoted little explicit discussion to the question of whether mandamus was being used as an appellate remedy. Nor does the caselaw exhibit an obvious pattern. Before Sheley, circuit court rulings on mandamus petitions challenging local land-use decisions were often — but not always — reviewed by appeal, rather than by certiorari.[45]
Even post-Sheley cases are not always easy to reconcile. For example, in cases decided two years apart, the First District Court of Appeal reviewed by certiorari and by appeal, respectively, a circuit court order denying a petition for mandamus and certiorari challenging the denial of an application to vacate a subdivision plat,[46] and a circuit court order granting a petition for mandamus and certiorari challenging the denial of a concept plan for a plat application.[47]
Despite the difficulty of reconciling some of the cases — and despite the dearth of explicit discussion of the issue — mandamus is probably best understood, in the context of most challenges to local land-use decisions, as an appellate remedy. The kinds of land-use decisions that have been challenged in petitions for mandamus generally should be considered quasi-judicial for the simple reason that certiorari is available to review those decisions,[48] and certiorari is available only to review judicial or quasi-judicial decisions.[49] Indeed, the Florida Supreme Court has acknowledged that “decisions of local governments on building permits, site plans, and other development orders” are “quasi-judicial in nature and thus subject to certiorari review by the courts.”[50]
Since mandamus, in these land-use contexts, is brought to challenge a quasi-judicial decision — indeed, to compel the tribunal charged with making a quasi-judicial decision to reach a particular result[51] — the circuit court, in ruling on such petitions, will ordinarily be acting in its review capacity. Such circuit court decisions will typically be reviewable, therefore, by certiorari, not by appeal.
Conclusion
This article began by asking the reader to imagine representing a developer who wants to challenge a circuit court order denying mandamus relief overturning a local land-use decision.[52] The principles that determine the proper vehicle for district court review of such an order do not draw sharp boundaries. For that reason, deciding in the context of a specific case whether mandamus would amount to “an appellate remedy to review…quasi-judicial actions of lower tribunals” may require a careful analysis of the nature of the local government decision being challenged.[53]
Nevertheless, the availability of certiorari as a vehicle for circuit court review of many local land-use decisions seems to illuminate the path forward. It suggests that in ruling on challenges to those decisions, regardless of whether the challenger seeks mandamus or certiorari, the circuit court is reviewing a quasi-judicial decision of a lower tribunal. If so, district court review is by certiorari. Start drafting your petition.
[1] Cf. City of Jacksonville Beach v. BCEL 4, LLC, 262 So. 3d 835, 836 (Fla. 1st DCA 2018) (per curiam) (reviewing a circuit court decision “granting a petition for writ of mandamus and alternatively granting a petition for writ of certiorari”).
[2] City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982). The Florida Supreme Court has clarified that “‘applied the correct law’ is synonymous with ‘observing the essential requirements of law.’” Haines City Community Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). “A ruling constitutes a departure from the essential requirements of law when it amounts to ‘a violation of a clearly established principle of law resulting in a miscarriage of justice.’” Miami-Dade Cty. v. Omnipoint Holdings, Inc., 863 So. 2d 195, 199 (Fla. 2003) (quoting Tedder v. Fla. Parole Comm’n, 842 So. 2d 1022, 1024 (Fla. 1st DCA 2003)).
[3] See Broward Cty. v. G.B.V. Int’l, Ltd., 787 So. 2d 838, 845 (Fla. 2001) (“Once the district court granted certiorari and quashed the circuit court order…the district court’s job was ended.”).
[4] Nat’l Advertising Co. v. Broward Cty., 491 So. 2d 1262, 1263 (Fla. 4th DCA 1986); see also ABG Real Estate Dev. Co. of Fla., Inc. v. St. Johns Cty., 608 So. 2d 59, 64 (Fla. 5th DCA 1992) (“A court’s certiorari review power does not extend to directing that any particular action be taken, but is limited to quashing the order reviewed.”).
[5] See Gulf Oil Realty Co. v. Windhover Ass’n, 403 So. 2d 476, 478 (Fla. 5th DCA 1981) (“On appeal, an appellate court has authority to reverse an order or judgment and remand with directions or instructions for the trial court to follow. However, after review by certiorari, an appellate court can only quash the lower court order; it has no authority to direct the lower court to enter contrary orders.”).
[6] If the pressure to choose the right vehicle for review starts to overwhelm you, remember Rule 9.040(c): “If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought….” Fla. R. App. P. 9.040(c); see also Creslow v. Bd. of Cty. Comm’rs, Palm Beach Cty., 428 So. 2d 701, 702 (Fla. 4th DCA 1983) (observing that if a notice of appeal is filed when a petition for certiorari should have been filed, Rule 9.040(c) “contemplates the filing of an amended petition which satisfies the content requirement of Rule 9.100(e) [now renumbered Rule 9.100(g)] or, if all briefs have already been filed before the appeal is changed to a petition, the assessment of these briefs in lieu of the assessment of a formal petition”).
[7] Fla. R. App. P. 9.110(b).
[8] Fla. R. App. P. 9.110(f).
[9] Fla. R. App. P. 9.100(g)(4).
[10] Fla. R. App. P. 9.100(c)(1).
[11] See Crystal v. Fla. Dep’t of Corr., 160 So. 3d 499, 499 (Fla. 1st DCA 2015) (per curiam); Russell v. State, 114 So. 3d 483, 485 (Fla. 2d DCA 2013); Capone v. Fla. Bd. of Regents, 774 So. 2d 825, 827 (Fla. 4th DCA 2000); cf. Thigpen v. Ash, 45 So. 3d 547, 547-48 (Fla. 1st DCA 2010) (per curiam).
[12] Fla. R. App. P. 9.020(h)(1).
[13] See, e.g., Omnipoint Holdings, Inc., 863 So. 2d at 199.
[14] See, e.g., BCEL 4, LLC, 262 So. 3d at 836 (reviewing a circuit court order by appeal to the extent that it granted mandamus but by certiorari to the extent that it granted certiorari).
[15] See, e.g., Blair Nurseries, Inc. v. Baker Cty., 199 So. 3d 534, 536 (Fla. 1st DCA 2016) (reviewing by “second-tier certiorari” a circuit court order denying mandamus and certiorari relief overturning the denial of an application to vacate a subdivision plat).
[16] Fla. R. App. P. 9.030(b)(1)(A) (emphasis added).
[17] Fla. R. App. P. 9.030(b)(2)(B) (emphasis added).
[18] Fla. R. App. P. 9.030(b)(1)(A), (b)(2)(B).
[19] Id. at 353 (citations omitted); see also Sutton v. State, 975 So. 2d 1073, 1080 (Fla. 2008) (“[A]lthough a petition for writ of prohibition may technically be classified as an original action, courts act only in their review capacity in this context in the determination of a petition for writ of prohibition….Because review in the nature of a petition for writ of prohibition in this context functions like an appeal, additional review that functioned as a second appeal would be problematic.”).
[20] See, e.g., Vaillant, 419 So. 2d at 626 (“We hold that where full review of administrative action is given in the circuit court as a matter of right, one appealing the circuit court’s judgment is not entitled to a second full review in the district court.”).
[21] Grate, 252 So. 3d at 353.
[22] See id.
[23] Id.; see also Philip J. Padovano, Florida Appellate Practice §30:5 (2018) (“Certiorari is an extraordinary remedy that is available in the absence of a right to an appeal when a lower tribunal has acted in excess of its jurisdiction or otherwise departed from the essential requirements of law. A party may file a petition for writ of certiorari to review: (1) an appellate decision of a lower court; (2) a final decision of a local administrative body; or (3) a pretrial order that is not subject to appeal.” (footnote omitted)).
[24] De Groot, 95 So. 2d at 915-16.
[25] See Vaillant, 419 So. 2d at 626.
[26] De Groot, 95 So. 2d at 916.
[27] Anoll v. Pomerance, 363 So. 2d 329, 330-31 (Fla. 1978).
[28] Compare, e.g., Poole v. City of Port Orange, 33 So. 3d 739, 740-41 (Fla. 5th DCA 2010) (mandamus sought in original proceeding in circuit court), with Thorne v. Dep’t of Corr., 36 So. 3d 805, 806-07 (Fla. 1st DCA 2010) (per curiam) (mandamus sought in circuit court as vehicle for review of decision of lower tribunal).
[29] Id. at 217.
[30] Sheley v. Fla. Parole Comm’n, 703 So. 2d 1202, 1204 (Fla. 1st DCA 1997).
[31] Id. at 1204-05 (citations omitted). The court noted that although precedent authorized challenges to the Parole Commission’s order by mandamus, given that writ’s traditionally “limited function,” “certiorari might have been a more appropriate remedy, at least for those cases in which the inmate is challenging the merits of the Parole Commission’s order.” Id. at 1205, n.2.
[32] Sheley, 720 So. 2d at 217-18.
[33] Id. at 218.
[34] Chapman v. State, 910 So. 2d 940, 941 (Fla. 5th DCA 2005); see also Walker v. Ellis, 989 So. 2d 1250, 1251 (Fla. 1st DCA 2008) (“In general, appellate courts allow direct review of an order dismissing a petition for writ of mandamus.”); Mazer v. Orange Cty., 811 So. 2d 857, 858 (Fla. 5th DCA 2002) (“Appellate courts have generally allowed direct review of an order dismissing a petition for writ of mandamus.”).
[35] See, e.g., Chapman, 910 So. 2d at 940-41 (reviewing by appeal, rather than by certiorari, an order denying a petition seeking mandamus relief “compel[ing] the sheriff’s office to arrest [the petitioner] instead of merely filing a detainer against him”); Mazer, 811 So. 2d at 857-58 (reviewing by appeal, rather than by certiorari, an order denying a petition seeking mandamus relief compelling the production of public records).
[36] Green v. Moore, 777 So. 2d 425, 426 (Fla. 1st DCA 2000) (per curiam); see also Battle v. Fla. Comm’n on Offender Review, 188 So. 3d 10, 12 (Fla. 1st DCA 2016) (“When a petition for a writ of mandamus seeks review of a quasi-judicial action, the proper method of reviewing the denial of mandamus relief is by way of a petition for a writ of certiorari. However, a direct appeal is appropriate when mandamus relief has been denied for a reason other than the merits.” (citation omitted)); Eastman v. State, 883 So. 2d 889, 890 n.1 (Fla. 2d DCA 2004) (“Had the circuit court ruled upon Eastman’s petition for writ of mandamus on its merits, certiorari review would be appropriate. When the circuit court disposes of such a petition on grounds other than upon the merits, appeal is the proper avenue for review.” (citation omitted)), abrogated on other grounds by Bush v. State, 945 So. 2d 1207 (Fla. 2006).
[37] See Mazer, 811 So. 2d at 857-58; see also Walker, 989 So. 2d at 1251 (reviewing by appeal, rather than by certiorari, a circuit court order dismissing a petition for mandamus on the ground that the petitioner had been deemed a vexatious litigant).
[38] Browning, 993 So. 2d at 65 (citing Sheley, 703 So. 2d 1202).
[39] Id.
[40] See Broward Cty. v. Narco Realty, Inc., 359 So. 2d 509, 511 (Fla. 4th DCA 1978) (upholding a circuit court decision issuing a writ of mandamus requiring Broward County to approve a proposed subdivision plat).
[41] See Blair Nurseries, Inc., 199 So. 3d at 535-38 (quashing a circuit court order denying a petition for mandamus and certiorari relief challenging the denial of an application to vacate a subdivision plat).
[42] See City of Lauderdale Lakes v. Corn, 427 So. 2d 239, 242-43 (Fla. 4th DCA 1983) (upholding a circuit court order granting mandamus and requiring the City of Lauderdale Lakes to approve a site plan); see also Orange Cty. v. Quadrangle Dev. Co., 780 So. 2d 994, 995-96 (Fla. 5th DCA 2001) (quashing a circuit court order granting mandamus relief directing the Orange County Board of County Commissioners to approve a final development plan application).
[43] See Thomas v. City of Crescent City, 503 So. 2d 1299, 1300-01 (Fla. 5th DCA 1987) (reversing a circuit court order denying a petition for mandamus relief requiring the City of Crescent City to grant a certificate of occupancy authorizing the addition of 24 recreational vehicle sites on the petitioner’s property).
[44] Charlotte Cty. v. Vetter, 863 So. 2d 465, 469 (Fla. 2d DCA 2004) (citing Corn, 427 So. 2d at 242; Narco Realty, Inc., 359 So. 2d at 510).
[45] See, e.g., Thomas, 503 So. 2d at 1301; Corn, 427 So. 2d at 240-43; Narco Realty, Inc., 359 So. 2d at 509-11. But see City Nat’l Bank of Miami v. City of Coral Springs, 475 So. 2d 984, 985-86 (Fla. 4th DCA 1985) (reviewing by certiorari a circuit court order granting mandamus relief and requiring a city to remove one of its conditions for approval of a proposed plat).
[46] Blair Nurseries, Inc., 199 So. 3d at 535-38; see also Quadrangle Dev. Co., 780 So. 2d at 995-96 (reviewing by certiorari a circuit court order granting both mandamus and certiorari relief overturning the Orange County Board of County Commissioners’ denial of a final development plan application).
[47] BCEL 4, LLC, 262 So. 3d at 836.
[48] See, e.g., id. (upholding a circuit court order granting certiorari relief quashing the denial of an application for approval of a concept plat); Blair Nurseries, Inc., 199 So. 3d at 537-38 (recognizing that a property owner was entitled to certiorari review in the circuit court of the denial of an application to vacate a subdivision plat); Quadrangle Dev. Co., 780 So. 2d at 995-96 (upholding a circuit court order granting certiorari and quashing the denial of a final development plan application).
[49] See Bd. of Cty. Comm’rs of Brevard Cty. v. Snyder, 627 So. 2d 469, 474 (Fla. 1993) (“[T]he rulings of a board acting in its quasi-judicial capacity are subject to review by certiorari….”); see also Kremps v. Manatee Cty. Bd. of Cty. Comm’rs, 233 So. 3d 526, 527 (Fla. 2d DCA 2018) (“‘[C]ertiorari review is available for orders of local agencies and boards that are quasi-judicial…,’ but it is not available to review executive decisions.” (quoting Lee Cty. v. Harsh, 44 So. 3d 239, 242 (Fla. 2d DCA 2010))); City of Cape Canaveral v. Rich, 562 So. 2d 445, 445 (Fla. 5th DCA 1990) (per curiam) (recognizing that the exercise of a “quasi-legislative function” was “not an appropriate subject for review by way of certiorari”).
[50] Park of Commerce Assocs. v. City of Delray Beach, 636 So. 2d 12, 15 (Fla. 1994).
[51] See Corn, 427 So. 2d at 242-43; Narco Realty, Inc., 359 So. 2d at 511.
[52] The question of the proper vehicle for district court review also arises, of course, for an attorney in the opposite position — one who wants to challenge a circuit court order granting mandamus relief overturning a local land-use decision. Such an attorney arguably is in an easier position. For an attorney who hopes to obtain mandamus relief overturning a local land-use decision, the availability of certiorari as a vehicle for circuit court review of quasi-judicial local government decisions may present an obstacle. Although courts have sometimes upheld mandamus relief overturning local land-use decisions, some cases suggest that wherever certiorari is available, mandamus is not. See Marion Cty. v. Kirk, 965 So. 2d 330, 332 (Fla. 5th DCA 2007) (“When a matter is open to review by certiorari, mandamus is an inappropriate remedy.”); Quadrangle Dev. Co., 780 So. 2d at 996 (“[M]andamus is not available if there is another adequate remedy. In the instant case, certiorari provided an adequate remedy.” (citation omitted)).
[53] Browning, 993 So. 2d at 65.
View the original article here: https://www.floridabar.org/the-florida-bar-journal/district-court-review-of-mandamus-proceedings-in-land-use-litigation-certiorari-or-appeal/