Justia.com Opinion Summary: The facts in this case arose from an arrest after the driver failed a roadside sobriety test and then had her license suspended based on the refusal to submit to a breath test. The court was asked to answer two certified questions: (1) "Does a law enforcement officer's request that a driver submit to a breath, blood, or urine test, under circumstances in which the breath-alcohol test is the only required test, violate the implied consent provisions of section 316.1932(a)(A)(1)(a) such that the department may not suspend the driver's license for refusing to take any test?" and (2) "May a district court grant common law certiorari relief from a circuit court's opinion reviewing an administrative order when the circuit court applied precedent from another district court but the reviewing district court concludes that the precedent misinterprets clearly established statutory law?" The court answered the first certified question in the negative. The Second District properly found that there was no violation of the implied consent law under the circumstances of this case. Accordingly, the court approved the Second District's decision and disapproved the Fourth district's opinion in State Department of Highway Safety and Motor Vehicles v. Clark to the extent that it concluded to the contrary. The court answered the second question in the affirmative and held that a district court could exercise its discretion to grant certiorari review of a circuit court decision reviewing an administrative order, so long as the decision under review violated a clearly established principle of law resulting in a miscarriage of justice, even if the circuit court decision was based on precedent from another district.
Receive FREE Daily Opinion Summaries by Email Download as PDF
Loading PDF...
<![CDATA[
Supreme Court of Florida
____________
No. SC09-1533
____________
SUSAN NADER,
Petitioner,
vs.
FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR
VEHICLES, et al.,
Respondents.
[February 23, 2012]
PARIENTE, J.
In this case before us, Department of Highway Safety and Motor Vehicles v.
Nader, 4 So. 3d 705 (Fla. 2d DCA 2009), the Second District Court of Appeal
determined two distinct but related issues: the first involving the administrative
suspension of a driver‟s license for refusal to submit to a breath test, and the
second involving the scope of certiorari review by an appellate court of the circuit
court‟s decision concerning the administrative suspension. In its decision in
Nader, the Second District passed upon the two questions involving these issues,
which it certified to be of great public importance:
1. DOES A LAW ENFORCEMENT OFFICER‟S REQUEST THAT A
DRIVER SUBMIT TO A BREATH, BLOOD, OR URINE TEST, UNDER
CIRCUMSTANCES IN WHICH THE BREATH-ALCOHOL TEST IS THE
ONLY REQUIRED TEST, VIOLATE THE IMPLIED CONSENT
PROVISIONS OF SECTION 316.1932(1)(A)(1)(a) SUCH THAT THE
DEPARTMENT MAY NOT SUSPEND THE DRIVER‟S LICENSE FOR
REFUSING TO TAKE ANY TEST?
2. MAY A DISTRICT COURT GRANT COMMON LAW CERTIORARI
RELIEF FROM A CIRCUIT COURT‟S OPINION REVIEWING AN
ADMINISTRATIVE ORDER WHEN THE CIRCUIT COURT APPLIED
PRECEDENT FROM ANOTHER DISTRICT COURT BUT THE
REVIEWING DISTRICT COURT CONCLUDES THAT THE PRECEDENT
MISINTERPRETS CLEARLY ESTABLISHED STATUTORY LAW?
Id. at 711. As more fully discussed below, we answer the first question in the
negative and answer the second question in the affirmative. 1
FACTS
The facts in this case arise from an arrest after the driver, Susan Nader,
failed a roadside sobriety test and then had her license suspended based on the
refusal to submit to a breath test:
On August 26, 2007, at approximately 1:30 a.m., Susan Nader
was stopped by a Tampa police officer because she was driving with
only her parking lights on and had stayed at an intersection through
more than one cycle of the traffic lights. After she failed a roadside
sobriety test, she was arrested and transported to a breath test center
operated by the Hillsborough County Sheriff‟s Office.[2]
1. Based on these certified questions, we have jurisdiction. See art. V, §
3(b)(4), Fla. Const.
2. The arrest report stated the officer observed Nader‟s car “with only
parking lights on sitting at an intersection. The vehicle [sat through] a couple of
light cycles. The driver of the [vehicle] had the distinct odor of an alcoholic
-2-
Nader, 4 So. 3d at 706. The record reflects that she refused to take a breath test
and thus her license was suspended.
Nader requested an administrative hearing, during which she argued that the
implied consent warning given was improper because she was requested to submit
to a “breath, blood, or urine” test when the law requires only a breath test. After
the hearing officer upheld the license suspension, Nader appealed the decision to
the circuit court pursuant to a statutory provision that provides for the method of
review by a circuit court.
In her petition to the circuit court, Nader again argued that the implied
consent warnings were improper, citing as authority the decision in State
Department of Highway Safety and Motor Vehicles v. Clark, 974 So. 2d 416 (Fla.
4th DCA 2007), in which the Fourth District Court of Appeal held that the circuit
court could reverse a license suspension where the law enforcement officer warned
the driver that her driving privileges would be suspended if she refused to submit
to a breath, blood, or urine test. In its response to Nader‟s petition, the Florida
Department of Highway Safety and Motor Vehicles (the Department) set forth all
the reasons the form affidavit used in this case was in accordance with applicable
beverage on her breath as she spoke. Her eyes were bloodshot and watery. Her
speech was at times slurred [and] thick-tongued. She was unsteady on her feet.
She was unsure of her location. She performed SFSTs [standardized field sobriety
tests] which showed clues of impairment.”
-3-
statutory provisions and other appellate case law. As to Clark, the case relied on
by Nader, the Department contended that the decision was wrongly decided
because the Fourth District “overlooked and misapprehended the facts and
governing law.” In other words, the Department asked the circuit court to disagree
with precedent from another district.
The circuit court judge concluded that he was bound by the Fourth District‟s
decision in Clark and reluctantly granted the petition, stating, “But for the Clark
opinion, the Court would deny the instant petition. The only test which Nader was
specifically offered was the breath test. There is no indication that Nader felt that
she was also obligated to take either or both of the other two tests.”
After the circuit court granted certiorari relief, the Department petitioned the
Second District for review of the circuit court‟s decision. See Nader, 4 So. 3d at
706. The Second District explicitly disagreed with the Fourth District‟s holding in
Clark, stating, “We cannot agree with the reasoning in Clark that this type of
language in the standard report form establishes that a driver was or might have
been misled into thinking that a more invasive test may be required.” Id. at 709.
With regard to the certiorari issue, the Second District first acknowledged
that “[c]ircuit court judges are aware of the requirement that they obey controlling
precedent from other districts even if they disagree with the precedent.” Id. at 70910 (citing Pardo v. State, 596 So. 2d 665, 667 (Fla. 1992)). The Second District
-4-
explained, however, that when the circuit court is sitting in its appellate capacity,
the “only method for a party to obtain district court review of such rulings is by a
petition for writ of common law certiorari,” otherwise known as “second-tier”
certiorari review. Id. at 710. The Second District acknowledged that in secondtier certiorari proceedings, “the district court is limited to determining whether the
circuit court afforded the parties procedural due process and whether it „applied the
correct law‟ or „departed from the essential requirements of the law.‟ ” Id.
(quoting Dep‟t of Highway Safety & Motor Vehicles v. Stenmark, 941 So. 2d
1247, 1249 (Fla. 2d DCA 2006)).
The Second District noted the “dramatic” ramifications of failing to address
the erroneous decision of Clark when read in light of the plain language of the
statute:
As this case demonstrates, the “breath, blood, or urine” language is
contained in a standard form used in Hillsborough County, and
probably elsewhere, since at least 2003. Unless the circuit court is
free to disregard Clark, every driver‟s license suspension based on a
refusal to submit to a breath test in which a similar form is used would
be overturned by the circuit courts based solely upon the decision in
Clark denying certiorari relief. There would be no multi-district
review and no ability for the other district courts to generate
conflicting decisions.
Id. The Second District then relied on this Court‟s opinion in Allstate Insurance
Co. v. Kaklamanos, 843 So. 2d 885, 889 (Fla. 2003), which held that second-tier
certiorari should not be used simply to grant a second appeal; rather, it should be
-5-
reserved for those situations when there has been a violation of a clearly
established principle of law resulting in a miscarriage of justice. Nader, 4 So. 3d at
710-11. The Second District recognized that the term “clearly established law”
does not necessarily refer only to case law, but also derives from other legal
sources, including rules of court, statutes, and constitutional law. See id. at 711
(quoting Kaklamanos, 843 So. 2d at 890). Accordingly, the Second District held
that it should grant second-tier certiorari based on a violation of clearly established
law where a circuit court relied upon the controlling precedent of another district
court, but in so doing disregarded the plain language of the applicable statute. The
Second District certified the above two questions to this Court—one related to the
statute, and the other related to the scope of second-tier certiorari review. Id. This
review followed.
ANALYSIS
In order to answer the first certified question, we begin with the applicable
statutory scheme regarding the circumstances under which a driver is required to
submit to chemical testing by breath, blood, or urine and when a refusal to submit
can result in a license suspension. We then explain the notice that must be given
prior to a license suspension and the review process for drivers who request an
administrative review regarding the license suspension. We next address the
-6-
specific facts involved with Susan Nader as they apply to the legality of her license
suspension.
In answering the second certified question, we first discuss the situations
under which a district court may use its certiorari jurisdiction to review a circuit
court‟s decision, including both certiorari review of nonfinal orders and second-tier
certiorari. We then discuss the requirement that district courts should act only
where the error is one that is a departure from the essential requirements of law.
Finally, we discuss the Second District‟s decision in this case to determine whether
the Second District properly exercised its second-tier certiorari jurisdiction. 3
First Certified Question
Statutory Scheme for Florida‟s Implied Consent Law
Section 316.1932, Florida Statutes (2007), commonly known as Florida‟s
implied consent law, addresses in three separate provisions the circumstances
under which a driver is required to submit to chemical testing by breath, blood, or
urine, and when a refusal to submit can result in a license suspension. The first
subsection, section 316.1932(1)(a)1.a., which is the provision at issue in this case,
3. We address the certified questions in this case in the order in which they
are presented. Contrary to the dissent‟s assertion, we treat the questions in this
order because to answer the second certified question (regarding the situations
under which a district court may use its certiorari jurisdiction to review a circuit
court‟s decision and whether the decision below involved a departure from the
essential requirements of law), we must first understand the relevant law at issue,
which is the subject of the first certified question.
-7-
provides that by operating a motor vehicle within the state, a driver is deemed to
have given his or her consent to submit to an “approved chemical test or physical
test” for “the purpose of determining the alcoholic content of his or her blood or
breath.” § 316.1932(1)(a)1.a., Fla. Stat. (2007) (emphasis added). Further, an
officer must tell the driver that “failure to submit to any lawful test of his or her
breath” will result in having his or her driver‟s license suspended. Id. (emphasis
added). Specifically, section 316.1932(1)(a)1.a. provides as follows:
Any person who accepts the privilege extended by the laws of this
state of operating a motor vehicle within this state is, by so operating
such vehicle, deemed to have given his or her consent to submit to an
approved chemical test or physical test including, but not limited to,
an infrared light test of his or her breath for the purpose of
determining the alcoholic content of his or her blood or breath if the
person is lawfully arrested for any offense allegedly committed while
the person was driving or was in actual physical control of a motor
vehicle while under the influence of alcoholic beverages. The
chemical or physical breath test must be incidental to a lawful arrest
and administered at the request of a law enforcement officer who has
reasonable cause to believe such person was driving or was in actual
physical control of the motor vehicle within this state while under the
influence of alcoholic beverages. The administration of a breath test
does not preclude the administration of another type of test. The
person shall be told that his or her failure to submit to any lawful test
of his or her breath will result in the suspension of the person‟s
privilege to operate a motor vehicle for a period of 1 year for a first
refusal, or for a period of 18 months if the driving privilege of such
person has been previously suspended as a result of a refusal to submit
to such a test or tests, and shall also be told that if he or she refuses to
submit to a lawful test of his or her breath and his or her driving
privilege has been previously suspended for a prior refusal to submit
to a lawful test of his or her breath, urine, or blood, he or she commits
a misdemeanor in addition to any other penalties.
-8-
(Emphasis added.)
The next provision addresses circumstances where a urine test is required:
when the officer suspects that a driver is under the influence of chemical
substances or controlled substances. See § 316.1932(1)(a)1.b., Fla. Stat. That
subsection provides that by operating a motor vehicle within the state, a driver is
deemed to have given his or her consent to submit to “a urine test” for the purpose
of determining the presence of chemical or controlled substances. Id. Similar to
subparagraph a., in subparagraph b., an officer must tell the driver that failure to
“submit to any lawful test of his or her urine” will result in having his or her
driver‟s license suspended. Id.
In the third provision, the implied consent law addresses when a blood test is
required. See § 316.1932(1)(c), Fla. Stat. Subsection 316.1932(1)(c) provides that
by operating a motor vehicle within the state, a driver is deemed to have given his
or her consent to submit to “an approved blood test for the purpose of determining
the alcoholic content of the blood” or determining the presence of chemical or
controlled substances where there is a reasonable cause to believe that the person
was driving while under the influence of alcohol or chemical substances and the
person appears for treatment at a hospital, clinic, or other medical facility. Id.
Unlike the other provisions, however, the warning relative to a refusal to submit to
-9-
the blood test is required only for those drivers who are capable of refusing the
test. Id.
Relating to the above three provisions, subsection 316.1932(1)(d) provides
that when an officer arrests a driver for allegedly being under the influence and
fails to request a chemical or physical breath test, the driver can request a chemical
or physical breath test as well as a urine test or blood test. In other words, a driver
has the right to request additional testing as provided by statute.
Notice and Procedure to Request Administrative Review
In conjunction with the implied consent law, section 322.2615, Florida
Statutes (2007), addresses the consequence of a license suspension and provides
the driver with an opportunity to request an administrative review. Pursuant to this
provision, a law enforcement officer must suspend a person‟s driving privilege if
that person has refused to submit to “a urine test or a test of his or her breathalcohol or blood-alcohol level.” § 322.2615(1)(a), Fla. Stat. (2007). The driver
must receive a notice of suspension that “shall inform the driver” that the “driver
refused to submit to a lawful breath, blood, or urine test and his or her driving
privilege is suspended for a period of 1 year for a first refusal” and that “the
suspension period shall commence on the date of issuance of the notice of
suspension.” § 322.2615(1)(b), Fla. Stat. Subsection 322.2615(2) then requires
that
- 10 -
the law enforcement officer shall forward to the department, within 5
days after issuing the notice of suspension, the driver‟s license; an
affidavit stating the officer‟s grounds for belief that the person was
driving or in actual physical control of a motor vehicle while under
the influence of alcoholic beverages or chemical or controlled
substances; the results of any breath or blood test or an affidavit
stating that a breath, blood, or urine test was requested by a law
enforcement officer or correctional officer and that the person refused
to submit.
§ 322.2615(2), Fla. Stat. (emphasis added).
In order to comply with this provision, the law enforcement officer in this
case filled out a standardized form affidavit, entitled “State of Florida Department
of Highway Safety & Motor Vehicles Affidavit of Refusal To Submit to Breath,
Urine or Blood Test” (Form HSMV 78054), which stated:
I did request said person to submit to a breath, urine, or blood test to
determine the content of alcohol in his or her blood or breath or the
presence of chemical or controlled substances therein. I did inform
said person that any refusal to submit to such test or tests would result
in the suspension of his or her privilege to operate a motor vehicle . . .
. In cases involving a Commercial Motor Vehicle, I did inform the
driver that this refusal will result in the disqualification of the driver‟s
Commercial Driver‟s License/privilege . . . .
Said person did at that time and place refuse to submit to such
test or tests.
Like the notice of suspension, the affidavit was written on a form, the use of
which was not limited to situations arising under subsection 316.1932(1)(a)1.a.,
which applies only to driving under the influence of alcohol and requires a driver
- 11 -
to submit to a breath test. 4 This affidavit was apparently used by the Department in
all situations where a driver has refused testing, including those situations
involving commercial motor vehicles, which are not addressed in section
316.1932, but rather in section 322.63, Florida Statutes (2007).
Section 322.2615 further provides for the method by which the driver can
request review of the license suspension. When a license is suspended for the
“refusal to submit to a breath, blood, or urine test,” the driver has the opportunity
to request a formal review hearing in which a hearing officer determines the
following matters, as pertinent to the issue here:
2. Whether the person whose license was suspended refused to
submit to any such test after being requested to do so by a law
enforcement officer or correctional officer.
3. Whether the person whose license was suspended was told
that if he or she refused to submit to such test his or her privilege to
operate a motor vehicle would be suspended for a period of 1 year or,
in the case of a second or subsequent refusal, for a period of 18
months.
§ 322.2615(7)(b)2.-3., Fla. Stat. (2007).
Application of the Law to This Case
Here, Nader‟s driver‟s license was suspended as a result of her refusal to
submit to a breath test after a police officer observed her sitting through a couple of
light cycles with only her parking lights turned on. At the administrative
4. Nader‟s brief states that the Department now uses another form where the
officer can check off a box indicating which tests were requested.
- 12 -
proceeding challenging the license suspension, neither side presented any
testimony; only documentary evidence was relied upon. After being denied relief
in the administrative hearing, Nader challenged her license suspension to the
circuit court. Nader alleged that the affidavit submitted by the officer in this case
was part of the implied consent warning and that in the form affidavit, the officer
attested that he requested her to submit to a breath, urine, or blood test.
The only “possible anomaly” pointed out by the Second District is that
instead of being asked to submit to a “breath-alcohol” test, the form used the
phrase “breath, blood, or urine” test. See Nader, 4 So. 3d at 709. The Second
District disagreed with the Fourth District in Clark that the standard form could
mislead a driver into thinking that she would have to submit to a more invasive
test, such as the withdrawal of blood, than the test that was authorized by statute.
Id. (citing Clark, 974 So. 2d at 418).
We agree with the Second District that the “use of „or‟ plainly suggests the
driver has a choice of one of the three tests and is free to choose the breath test if
the driver prefers the least invasive method.” Nader, 4 So. 3d at 709. In reaching
this conclusion, the Second District cited to Sparkman v. McClure, 498 So. 2d 892,
895 (Fla. 1986), in which we recognized that the “word „or‟ is generally construed
in the disjunctive when used in a statute or rule. The use of this particular
disjunctive word in a statute or rule normally indicates that alternatives were
- 13 -
intended.” Sparkman, 498 So. 2d at 895 (citation omitted). In this case, as pointed
out by the circuit court, the only test that the driver was specifically offered was
the breath test and that is the only test that she refused. Further, as found by the
circuit court, based on the record, “[t]here is no indication that Nader felt that she
was also obligated to take either or both of the other two tests.”
Accordingly, we answer the first certified question in the negative. We now
address the second certified question, which presents the issue of whether the
Second District‟s decision to grant the Department‟s petition for certiorari
exceeded the limited scope of its second-tier certiorari review.
Second Certified Question
Common-Law Certiorari Proceedings
A petition for writ of certiorari is a method for a litigant to obtain review of
a circuit court order that is distinctly different from appellate review. A district
court‟s certiorari review of a circuit court‟s decision may occur in two discrete
situations: (1) certiorari review of a nonfinal order entered by the circuit court; and
(2) second-tier certiorari, which is certiorari review of an order of the circuit court
sitting in its appellate capacity to review a ruling from either the county court or an
administrative or other governmental entity.
In the first situation, involving nonfinal orders entered by the circuit court in
the course of ongoing proceedings, a party seeking review through a petition for
- 14 -
writ of certiorari must demonstrate: (1) a material injury in the proceedings that
cannot be corrected on appeal (sometimes referred to as irreparable harm); and (2)
a “depart[ure] from the essential requirements of the law.” Belair v. Drew, 770
So. 2d 1164, 1166 (Fla. 2000). As stated in Martin-Johnson, Inc. v. Savage, 509
So. 2d 1097, 1099 (Fla. 1987):
A non-final order for which no appeal is provided by Rule
9.130 is reviewable by petition for certiorari only in limited
circumstances. The order must depart from the essential requirements
of law and thus cause material injury to the petitioner throughout the
remainder of the proceedings below, effectively leaving no adequate
remedy on appeal.
Because Florida Rule of Appellate Procedure 9.130 limits the types of
appealable nonfinal orders and because appellate review of the final order is
available, the case law is very specific that when a litigant petitions the appellate
court for a writ of certiorari as to a nonfinal order, both the requirements of
irreparable harm and a departure from the essential requirements of law must be
met. Further, the law is clear that certiorari relief is intended to be available only
in very limited circumstances and should not be a means of circumventing rule
9.130 or interfering with ongoing proceedings in the trial court.
Separate from the limited review available to nonfinal orders, the second
situation involves second-tier certiorari, which likewise can be divided into two
subcategories of cases: those involving circuit court review of county court orders
and those involving circuit court review of administrative decisions. Review of
- 15 -
these final orders are also different from full appellate review, but the reasoning for
the narrow review is based primarily on the principle that a litigant is not entitled
to a second appeal.
The first subcategory of second-tier certiorari cases involves final decisions,
judgments, or orders rendered by the county court after a full hearing or trial.
Those final decisions are appealed to the circuit court sitting in its appellate
capacity, and in those circumstances, appellate review by the circuit court is
similar to appellate review by district courts of appeal. Because the assumption is
that the litigant has already received full appellate review by the circuit court
(either sitting in three-judge panels or by one judge alone), the district court‟s
discretion to grant certiorari review is restricted to those errors that “depart from
the essential requirements of law.” As stated in the oft-cited opinion of Combs v.
State, 436 So. 2d 93 (Fla. 1983), which addressed the scope of this certiorari
review:
[T]he phrase “departure from the essential requirements of law”
should not be narrowly construed so as to apply only to violations
which effectively deny appellate review or which pertain to the
regularity of procedure. In granting writs of common-law certiorari,
the district courts of appeal should not be as concerned with the mere
existence of legal error as much as with the seriousness of the error.
Since it is impossible to list all possible legal errors serious enough to
constitute a departure from the essential requirements of law, the
district courts must be allowed a large degree of discretion so that they
may judge each case individually. The district courts should exercise
this discretion only when there has been a violation of a clearly
established principle of law resulting in a miscarriage of justice.
- 16 -
It is this discretion which is the essential distinction between
review by appeal and review by common-law certiorari.
Id. at 95-96 (emphasis added).
The second subcategory of second-tier certiorari cases comprises those that
involve review of decisions rendered by administrative or other governmental
agencies—the type of second-tier certiorari that is involved in this case. In Haines
City Community Development v. Heggs, 658 So. 2d 523 (Fla. 1995), the Court
observed:
As a case travels up the judicial ladder, review should
consistently become narrower, not broader. We have held that circuit
court review of an administrative agency decision, under Florida Rule
of Appellate Procedure 9.030(c)(3), is governed by a three-part
standard of review: (1) whether procedural due process is accorded;
(2) whether the essential requirements of law have been observed;
and (3) whether the administrative findings and judgment are
supported by competent substantial evidence. [City of Deerfield
Beach v.] Vaillant, 419 So. 2d [624,] . . . 626 [(Fla. 1982)]. The
standard of review for certiorari in the district court effectively
eliminates the substantial competent evidence component. The
inquiry is limited to whether the circuit court afforded procedural due
process and whether the circuit court applied the correct law. As
explained above, these two components are merely expressions of
ways in which the circuit court decision may have departed from the
essential requirements of the law. In short, we have the same standard
of review as a case which begins in the county court. See William A.
Haddad, “Writ of Certiorari in Florida,” in The Florida Bar, Florida
Appellate Practice § 18.3 (3d ed. 1993).
This standard, while narrow, also contains a degree of
flexibility and discretion. For example, a reviewing court is drawing
new lines and setting judicial policy as it individually determines
those errors sufficiently egregious or fundamental to merit the extra
review and safeguard provided by certiorari. This may not always be
- 17 -
easy since the errors in question must be viewed in the context of the
individual case.
Id. at 530-31 (emphasis added) (footnote omitted).
However, appellate courts must exercise caution not to expand certiorari
jurisdiction to review the correctness of the circuit court‟s decision. This would
deprive litigants of the finality of judgments reviewed by the circuit court and
ignore “societal interests in ending litigation within a reasonable length of time and
eliminating the amount of judicial labors involved in multiple appeals.” Id. at 526
n.4. “A more expansive review would also afford a litigant two appeals from a
court of limited jurisdiction, while limiting a litigant to only one appeal in cases
originating in a trial court of general jurisdiction.” Custer Med. Ctr. v. United
Auto. Ins. Co, 62 So. 3d 1086, 1093 (Fla. 2010).
Moreover, certiorari jurisdiction cannot be used to create new law where the
decision below recognizes the correct general law and applies the correct law to a
new set of facts to which it has not been previously applied. In such a situation,
the law at issue is not a clearly established principle of law. See Ivey v. Allstate
Ins. Co., 774 So. 2d 679, 682-83 (Fla. 2000). This does not mean, however, that
clearly established law consists only of prior judicial precedent. In Kaklamanos,
843 So. 2d at 890, we explicitly held that “ „clearly established law‟ can derive
from a variety of legal sources, including recent controlling case law, rules of
court, statutes, and constitutional law.” (Emphasis added.) Accordingly, a district
- 18 -
court may grant a writ of certiorari after determining that the decision is in conflict
with the relevant statute, so long as the legal error is also “sufficiently egregious or
fundamental to fall within the limited scope” of certiorari jurisdiction. Id.
Application of the Law to This Case
In turning to this case, we begin by noting that the method of review of the
agency decision was provided for by statute. Specifically, in challenging her
license suspension, Nader was required to “request a formal or informal review of
the suspension by the department within 10 days after the date of issuance of the
notice of suspension.” § 322.2615(1)(b)3., Fla. Stat. (2007). The statute further
provides that a “person may appeal any decision of the department sustaining a
suspension of his or her driver‟s license by a petition for writ of certiorari to the
circuit court . . . . This subsection shall not be construed to provide for a de novo
appeal.” § 322.2615(13), Fla. Stat. (2007). Therefore, although the statutory
provision commingles the term “appeal” with “petition for writ of certiorari,” the
procedure to be followed is to file a petition for writ of certiorari with the circuit
court, where the circuit court engages in appellate review of the decision.
However, unlike an ordinary appeal from the circuit court to the district court, the
circuit court is limited in a significant way because there is a judicially imposed
requirement that a circuit court must abide by precedent from another district court
of appeal if no precedent exists from its own district.
- 19 -
The reason for this restriction was explained by the Court in Pardo:
The District Courts of Appeal are required to follow Supreme Court
decisions. As an adjunct to this rule it is logical and necessary in
order to preserve stability and predictability in the law that, likewise,
trial courts be required to follow the holdings of higher courts—
District Courts of Appeal. The proper hierarchy of decisional
holdings would demand that in the event the only case on point on a
district level is from a district other than the one in which the trial
court is located, the trial court be required to follow that decision.
Alternatively, if the district court of the district in which the trial court
is located has decided the issue, the trial court is bound to follow it.
Contrarily, as between District Courts of Appeal, a sister district‟s
opinion is merely persuasive.
596 So. 2d at 666-67 (emphasis added) (quoting State v. Hayes, 333 So. 2d 51, 53
(Fla. 4th DCA 1976)). Therefore, a circuit court (even one functioning in its
appellate capacity) is bound to apply existing precedent from another district if its
district has not yet spoken on the issue. In this regard, a party is unable to argue
that the circuit court should rule differently on the same issue of law—something
that the party is able to do in cases on direct appeal to the district court. The
Second District recognized the problem with the Pardo constraint as applied to
certiorari proceedings:
Our constitutional system of review in Florida has been built on
a foundation that encourages debate among the district courts and a
screening of cases so that direct conflict between the districts on
dispositive issues is usually required for the supreme court to resolve
an issue. This system is difficult to employ in the narrow context
described in this case. If we hold that the trial court did not depart
from the essential requirements of the law by following the Fourth
District, then any discussion we may undertake arguing that the
Fourth District‟s opinion is incorrect becomes mere dicta. It creates
- 20 -
no conflict that would authorize supreme court review, and it probably
creates no binding precedent allowing the next circuit judge in this
district to disregard the Clark decision. On the other hand, we are
loath to suggest that a circuit court may reject what appears to be
controlling precedent in this context based upon its own interpretation
of a statute or constitutional provision.
Nader, 4 So. 3d at 710.
To address this tension between the obligation of a circuit court (even one
sitting in its appellate capacity) to respect precedent from other districts when there
is no precedent from its district and the obligation of a district court not to provide
a second appeal but to correct only violations of clearly established law, the
Second District concluded:
[A] district court is authorized to find clearly established law on the
face of a statute even when another district court has interpreted the
statute to require a different outcome in a published opinion.
Moreover, a district court is then authorized to grant certiorari relief
and quash a circuit court decision that obeyed the controlling
precedent and disobeyed the plain language of the statute. We
therefore grant the Department‟s petition for writ of certiorari and
quash the circuit court‟s opinion.
Id. at 711.
To the extent that the Second District advocates a rule allowing second-tier
certiorari review when an appellate court merely disagrees with precedent from
another court, we reject this as overly broad. First, we note that there is presently
an important difference between the review of administrative proceedings, which
proceed directly to the circuit court, and the review of county court proceedings,
- 21 -
which can be either appealed to the circuit court or heard by the district court
through certified question. In the latter situation, the appellate rules expressly
provide for a means by which the county court can certify a question to be of great
public importance to the district court, thus providing a method by which the
county court can receive a ruling on whether precedent from another district
controls. See Fla. R. App. P. 9.030(b)(4)(A); Fla. R. App. P. 9.160. In that
circumstance, the circuit court appellate review is essentially bypassed and, if the
appeal is accepted, the district court engages in plenary appellate review over the
legal issue raised by the county court decision. See, e.g., Geico Indem. Co. v.
Physicians Grp., 47 So. 3d 354 (Fla. 2d DCA 2010). The option of certification of
a question to the district court is not presently available, either by rule or statute,
for a circuit court hearing an appeal of an administrative decision.
However, even with that procedural difference, we emphasize that the
district court should not grant relief merely because it disagrees with the precedent
from another district court; rather, the district court must determine whether the
decision of the circuit court, even though it followed an opinion from another
district court, is a departure from the essential requirements of law resulting in a
miscarriage of justice. Here, the Second District, in granting second-tier certiorari
after reviewing the provisions of the implied consent law in detail, concluded that
while the circuit court attempted to obey controlling precedent, its decision (and
- 22 -
the decision in Clark) was in fact contrary to clearly established statutory law.
Nader, 4 So. 3d at 707-10.
Further, the Second District noted the “dramatic” ramifications of the
situation in this case, where if the district court was unable to act, circuit courts
would be required to overturn every driver‟s license suspension based on a refusal
to submit to a breath test in which a similar form was used. See id. at 710. The
Second District stressed that its second-tier certiorari jurisdiction could not be used
merely to grant a second appeal but was reserved for those situations where there
was a violation of clearly established principles of law resulting in a miscarriage of
justice. Id. at 710-11. The district court concluded that this standard was met in
this case, and thus it was authorized to grant certiorari relief and quash a circuit
court decision where the court below obeyed the controlling precedent, but in
doing so, disobeyed the plain language of the statute. Id. at 711.
We agree that the Second District did not exceed the scope of its authority to
grant certiorari relief and uphold the license suspension in this case. Throughout
this Court‟s pronouncements concerning the proper application of second-tier
certiorari review, this Court has repeatedly emphasized that certiorari review
cannot be used as a means of granting a second appeal and cannot be used simply
because the district court disagrees with the outcome of the circuit court‟s decision.
Instead, we have held that district courts should act only where the error is one that
- 23 -
is a departure from the essential requirements of law. Because it would be
impossible to create an exhaustive list of such situations, this Court has repeatedly
emphasized that district courts must be “allowed a large degree of discretion so
that they may judge each case individually.” Combs, 436 So. 2d at 96.
Here, the Second District properly used second-tier certiorari. In reviewing
whether it should grant certiorari in this case, the Second District focused entirely
on whether the circuit court had applied the correct law, and when it determined
that the incorrect law had been applied, it looked to the seriousness of the error.
The Second District did not reanalyze the application of the law to the facts.
Moreover, in Kaklamanos, we recognized that statutory provisions constitute
“clearly established law.” Thus, the Second District correctly based its certiorari
analysis on those factors that we have stressed. This result is not changed simply
because the circuit court followed binding precedent from another district that was
clearly contrary to the plain language of the statute itself. To hold otherwise would
prevent a district court from using its second-tier certiorari review to correct “a
violation of clearly established principle of law that resulted in a miscarriage of
justice,” simply because a prior decision of another district court of appeal
analyzed the controlling statute. Such a result would treat case law interpreting a
statute as more authoritative than the statute itself—a proposition that is not
supported by our precedent. Further, as pointed out by the Second District, the
- 24 -
failure to apply the correct law would have dramatic and wide-reaching
ramifications for license suspensions since the standard form affidavit was used by
the Department throughout the State.5
The dissent contends that our decision “eviscerates over one hundred years”
of well-established jurisprudence in order to permit a circuit court to bring an issue
to the district court through second-tier certiorari. To the contrary, our decision
has expressly rejected such a proposition. We have neither created new law with
regard to second-tier certiorari, nor expanded second-tier certiorari to create any
exception for “matters of great public importance.” The test that has always
applied to second-tier certiorari governs this case: it should be granted only when
there is a departure from the essential requirements of law resulting in a
miscarriage of justice. See Heggs, 658 So. 2d at 530.
District courts of appeal must be able to correct serious errors resulting in a
miscarriage of justice. As recognized by Heggs, the certiorari standard must
contain “a degree of flexibility and discretion.” Id. The determination must be
made by the district court of appeal in a cautious manner to ensure that the error is
“sufficiently egregious or fundamental to merit the extra review and safeguard
5. The Third District most recently granted certiorari relief to rectify exactly
the same error as in Nader, relying on Nader and adopting the Second District‟s
reasoning that the propriety of the request and warning to submit to testing
involves “clearly established law” and the contrary interpretation in Clark
“disobeyed the plain language of the statute.” State Dep‟t of Highway Safety &
Motor Vehicles v. Freeman, 63 So. 3d 23, 27 (Fla. 3d DCA 2011).
- 25 -
provided by certiorari.” Id. at 531. It is this last admonition that bears emphasis; a
balance must be struck between respecting the finality of appellate review provided
by the circuit court‟s appellate decision and the necessity of having the availability
of certiorari to use in a narrow group of cases, which “merit the extra review and
safeguard provided by certiorari.” Id. By our decision, we reaffirm our holding in
Kaklamanos—that statutes also constitute “clearly established law,” meaning that a
district court can use second-tier certiorari to correct a circuit court decision that
departed from the essential requirements of statutory law. See Kaklamanos, 843
So. 2d at 890 (“ „[C]learly established law‟ can derive from a variety of legal
sources, including recent controlling case law, rules of court, statutes, and
constitutional law.” (emphasis added)).
CONCLUSION
In conclusion, we answer the first certified question in the negative. The
Second District properly found that there was no violation of the implied consent
law under the circumstances of this case. Accordingly, we approve of the Second
District‟s decision and disapprove the Fourth District‟s opinion in Clark to the
extent that it concluded to the contrary. We answer the second question in the
affirmative and hold that a district court may exercise its discretion to grant
certiorari review of a circuit court decision reviewing an administrative order, so
long as the decision under review violates a clearly established principle of law
- 26 -
resulting in a miscarriage of justice, even if the circuit court decision was based on
precedent from another district.
We further refer the issue to the Florida Bar Appellate Court Rules
Committee to consider whether a circuit court should be able to certify a question
of great public importance to the district court in circumstances where it is
reviewing a decision of an administrative agency, similar to a county court‟s
authority by rule to certify final orders to the district.
It is so ordered.
CANADY, C.J., and QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.
LEWIS, J., dissents with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
LEWIS, J., dissenting.
Today the majority unnecessarily expands second-tier certiorari jurisdiction
far beyond the well-established parameters of Florida law to an area, and on a
premise, never before recognized. In fact, this expansion is directly contrary to the
entire common law history of second-tier certiorari review in Florida. Even more
troubling, the reason and basis expressed for this improper expansion is predicated
upon a perceived need to allow the certification of questions or issues to district
courts of appeal by circuit courts sitting in an appellate capacity with regard to
matters originating in an administrative proceeding, similar to the certification of
- 27 -
questions or issues to district courts of appeal by county courts which is provided,
not by common law concepts, but by our appellate rules as authorized by the
Florida Constitution. See art. V, § 4(b)(1), Fla. Const.; Fla. R. App. Pro.
9.030(b)(4)(A). The common sense mechanism for resolving this asserted problem
would be to simply authorize administrative agencies, or the circuit courts that
review their decisions on appeal, the ability to certify questions to the district
courts through the promulgation of appellate rules similar to those governing the
ability of county courts to certify questions to the district courts. Instead of
employing our rulemaking authority to solve this alleged problem with even the
Florida Rules of Appellate Procedure pending here for consideration for
amendment at the same time, see In re Amendments to the Florida Rules of
Appellate Procedure (Three-Year Cycle), 36 Fla. L. Weekly S637 (Fla. Nov. 3,
2011), the majority unnecessarily eviscerates over one hundred years of wellgrounded, well-established jurisprudence with regard to second-tier certiorari
review. This Court has never extended certiorari in the manner asserted by the
majority here, and the majority fails to provide any authority to support its creation
of this new, unprecedented common law right to a second appeal. This distortion
also indiscriminately confuses the Florida Constitution‟s classification of “matters
of great public importance,” and dangerously blows open the door, carefully
guarded by this Court for the last century, to an inundation of appeals cloaked
- 28 -
under the veil of second-tier certiorari review. Further, today‟s decision will
destabilize Florida‟s delicate judicial ladder, opening the flood gates of second
appeals to our already overworked and overburdened district courts of appeal as
described by those appellate courts. Accordingly, I dissent.
The majority decision states that “[t]he option of certification of a question
to the district court is not presently available, either by rule or statute, for a circuit
court hearing an appeal of an administrative decision,” majority op. at 22, as a
reason to disregard existing Florida law. The logical solution to this perceived
dilemma in the eyes of the majority would be to give “circuit court[s] hearing an
appeal from an administrative decision” “[t]he option of certification of a question
to the district court.” Majority op. at 22. As evidenced by the promulgation of
Florida Rule of Appellate Procedure 9.030(b)(4)(A), which gives district courts the
ability to review “final orders of the county court . . . that the county court has
certified to be of great public importance,” we have the authority to fill this
procedural gap by utilizing our authority to promulgate rules of appellate
procedure, which have been pending before us for review at the same time. See In
re Amendments to the Florida Rules of Appellate Procedure (Three-Year Cycle);
see also art. V, § 4(b)(1), Fla. Const. (“[District courts] may review interlocutory
orders in such cases to the extent provided by rules adopted by the supreme
court.”)
- 29 -
The majority claims that a “district court should not grant relief merely
because it disagrees with the precedent from another district court.” Majority op.
at 22. This, however, is already happening based on this case. In Bowers v. State,
23 So. 3d 767, 771 (Fla. 2d DCA 2009), approved, No. SC09-1971 (Fla. Feb. 23,
2012), the Second District relied on the decision which the majority affirms to
specifically state:
We recognize that by relying on [Ferrer v. State, 785 So. 2d 709
(Fla. 4th DCA 2001)], the circuit court applied existing precedent
from another district. Nevertheless, we grant certiorari relief on the
basis that Ferrer misapplied the fellow officer rule and should be
rejected. See Dep‟t of Highway Safety & Motor Vehicles v. Nader, 4
So. 3d 705 (Fla. 2d DCA 2009).
We therefore grant the petition for certiorari, certify conflict
with Ferrer v. State, 785 So. 2d 709 (Fla. 4th DCA 2001), quash the
circuit court‟s opinion, and remand with directions to affirm the
county court order granting the motion to suppress.
(Emphasis supplied.) This demonstrates facially how the majority rule has already
expanded.
Finally, the very structure of the majority‟s decision represents a disregard
for this Court‟s precedent with regard to second-tier certiorari review. The
threshold question in any case is whether the court in question has jurisdiction over
the matter. Here, the majority addresses the Second District‟s jurisdiction over the
matter only after addressing the merits, representing its marginalization of the
- 30 -
issue. The majority is really concerned with the substantive issue and is willing to
find a way around the jurisdictional block.
Secondly, by equating the constitutional concept of certifying “matters of
great public importance” with the theory used in this case, which was a court
simply in disagreement with a decision in another case, standards have now been
clouded. Long ago, this Court possessed “appellate jurisdiction in all cases at law
and in equity originating in Circuit Courts.” Art. V, § 5, Fla. Const. (1885).
However, in 1957, the Florida Constitution was amended to define this Court as
one of limited jurisdiction. See art. V, § 4(2), Fla. Const. (1957). Through this
amendment, Florida citizens articulated a clear intent to remove from this Court
jurisdiction over matters in which the Court merely disagrees with a decision
below. Instead, the amended 1957 Florida Constitution delineated specific
circumstances in which this Court possesses jurisdiction, one of which is a matter
certified to be of “great public importance.” See art. V, § 3(b)(4), Fla. Const.6
It is this same language that exists in the Florida Rules of Appellate Procedure,
which allows county courts to certify final orders, otherwise appealable to the
circuit court, which the county court has certified to be of “great public
importance.” Fla. R. App. P. 9.030(b)(4)(A). Today, the majority destroys the
6. The 1957 revisions to the Florida Constitution referenced “question[s] . . .
of great public interest,” which was changed to “question[s] . . . of great public
importance” through the 1980 revisions. See Fla. S.J.R. 20-C (Spec. Sess. 1979).
- 31 -
special status given to matters of “great public importance,” allowing district
courts to review any matter they choose, regardless of how trivial those matters
may be. If the limitations on this Court‟s jurisdiction, unequivocally articulated in
article V of the Florida Constitution, are to have any significance whatsoever,
matters of great public importance must be fundamentally exceptional and rise
above ordinary issues that constitute mere disagreement. Today‟s decision
unnecessarily blurs the line between issues of great public importance and ordinary
legal disputes, marginalizing the distinct status constitutionally reserved
exclusively for matters of great public importance.
Today‟s decision unwisely replaces one perceived problem with an even
bigger problem. Instead of narrowly crafting a mechanism for true matters of great
public importance to reach a district court of appeal, the majority distorts that
special classification by effectively granting each district court unfettered
discretion to involve itself in matters with which it merely disagrees. In light of
the unparalleled disregard for this Court‟s well-established precedent with regard
to second-tier certiorari review that jeopardizes our already overburdened court
system, I dissent.
Application for Review of the Decision of the District Court of Appeal - Certified
Great Public Importance
- 32 -
Second District - Case No. 2D08-1047
(Hillsborough County)
Eilam Isaak, Tampa, Florida,
for Petitioner
Stephen D. Hurm, General Counsel, and Damaris Esperanza Reynolds, Assistant
General Counsel Florida Department of Highway Safety and Motor Vehicles, Lake
Worth, Florida,
for Respondents
Michael A. Catalano, P.A., Miami, Florida, on behalf of the Florida Association of
Criminal Defense Lawyers,
as Amicus Curiae
- 33 -
]]>
