Writ Of Certiorari Review

WRIT OF CERTIORARI REVIEW OF ADVERSE LOCAL AGENCY DETERMINATIONS

Why Certiorari? • State court vs Federal Court – – – – – – –

Jurisdictional issues; Scope of Review Judicial interest Speed Guarantee of review Local politics Availability of Interim Injunctive Relief

What is Certiorari? • Various types - we are discussing – Appellate review of local agency decisions by Circuit Court Appellate Dept.

What is reviewable? • Quasi judicial decisions of agencies, boards and local government commissions not directly appealable by way of another provision of general law. Fla. R. App. P. 9.100(c)(2)

What is reviewable? • Determinations governed by APA are not subject to writ of cert in circuit court. Appeal is directly to Court of Appeal. • Decision probably does not have to be in writing to be reviewable. • Certain constitutional challenges may not be reviewable by writ of cert.

What is reviewable? • A local PHA decision with respect to eligibility for Section 8 benefits is reviewable • Most PHA hearing decisions are reviewable by cert. (must be quasijudicial)

Standard of Review • Circuit Court, Appellate Dept. (first tier) Standard – (1) whether procedural due process is afforded; – (2) whether the essential elements of the law were observed; – (3) whether the administrative findings and judgment are supported by ‘competent substantial evidence’;

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

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

Standard of Review • “essential elements of the law” – “essential elements” are not limited to federal regulations; – “essential elements” should include all written local rules and procedures; – “essential elements” should include local Section 8 hearing & notice procedures as well as any elements regarding the basis for termination.

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

Court does not reweigh the evidence Court does not review adverse evidence Court looks only at supportive evidence and determines if it is ‘competent and substantial.’ • Very deferential – any competent and substantial evidence is sufficient.

Procedure • Time Limits for Filing Writ must be “filed within thirty days of rendition of the order to be reviewed.” Rule 9.100(c) In Public Housing context when is the order final – is appeal to the Director possible or necessary?

Procedure Pleadings Required – Petition Rule 9.100 – Appendix Rule 9.100(g) – No need for separate record

Procedure – Petition • Caption –

Writ of Cert to Circuit Court Appellate Dept. Pursuant to Rule 9.100 – Include the Lower Tribunal Case #

• Contents – – – – –

Jurisdictional Basis Factual basis for relief Nature of relief sought Argument with citations to authority Limited to 50 pages

Procedure – Petition • Formal Appellate Font Rules – Times New Roman 14 pt/ Courier New 12pt

• Certificate of Compliance with Font/Typeface Rules • Double-spaced (except quotes and footnotes) • Appellate Uniform Citations rules • 1 inch margins

Procedure – Appendix • Must be filed in every case; • Must contain “such portions of the record deemed necessary to an understanding of the issues presented.” • Petition must reference relevant pages of the Appendix. • Separately bound or separated from Petition.

Procedure – Appendix • Contents – – – –

Decision appealed from; Transcript (if needed for your review); Exhibits, Documents from record; Appendix must be limited to the record; – Circuit Court review cannot extend beyond the record of the quasi-judicial hearing.

Procedure – Filing • Petition & Appendix are filed with Circuit Court – Appellate Dept. w/filing fee; • Make sure clerk is aware that it is appellate pleading; • Must be Filed with proof of service by mail on Respondents (personal service not necessary as this is essentially an appeal of the lower tribunal proceeding);

Procedures – Post Filing • Circuit Court issues Order to Show Cause – Generally issued automatically and shortly after filing; – No set time period for issuance but if there is significant delay make sure pleading was correctly filed; – OSC provides Respondents with date that response brief is due; – No other pleadings (such as Motion to Dismiss)

Procedures – Post Filing • Response Brief – can supplement the Appendix; • Limited to 50 pages; • Must comply with same technical formatting requirements; • Reply Brief – is due twenty days after Response; • Limited to 15 pages.

Argument • This is probably an interesting case to these judges; • Mostly handling appeals from County Court; • Care about local politics; • Level of preparation varies;

Decision

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

Appeal • Only appeal is by Writ of Cert to the District Court of Appeal (second tier review) • Second tier review is extremely limited – Did Circuit Court provide due process – Did Circuit Court apply correct law.