Rupp v. Jackson

• Decision Date: 22 July 1970
• Docket Number: No. 39310,39310
• Parties: Joseph C. RUPP, M.D., Petitioner, v. James W. JACKSON, Ethel B. Jackson and Ruth Adamson, Respondents.
• Court: Florida Supreme Court

Page 86

238 So.2d 86

Joseph C. RUPP, M.D., Petitioner, v. James W. JACKSON, Ethel B. Jackson and Ruth Adamson, Respondents.

No. 39310.

Supreme Court of Florida.

July 22, 1970.

Rehearing Denied Sept. 21, 1970.

Edward A. Perse of Carey, Dwyer, Austin, Cole & Selwood, Miami, for petitioner.

William E. Blyler, of Patterson, Maloney & Frazier, Fort Lauderdale, for respondents.

CARLTON, Justice:

The Fourth District Court of Appeal has certified that its decision in this cause, reported at 228 So.2d 916, is one which passes upon a question of great public interest. We have jurisdiction. Article V, Section 4(2), Florida Constitution, F.S.A.

This litigation was initiated in the form of a tort action against petitioner, an Associate Broward County Medical Examiner, for his allegedly unauthorized performance of an autopsy upon the body of respondents' mother. Petitioner raised as a defense authority of law by virtue of his official position and his motion for directed verdict was granted by the trial court at the close of plaintiff-respondents' presentation of evidence; final judgment was entered accordingly. The District Court, with one dissent, reversed and remanded for continuation of the trial. We affirm this decision.

Discussion of this case has been divided into two sections because the case presents an opportunity to comment upon a question which frequently arises in regard to 'public interest questions' certified to this Court.

I. Certification

Article V, Section 4(2), Florida Constitution, includes the following language:

'The supreme court may review by certiorari any decision of a district court of appeal that affects a class of constitutional or state officers, Or that passes upon a question certified by the district court of appeal to be of great public interest, or that is in direct conflict with a decision of another district court of appeal or of the supreme court on the same point of law, and may issue writs of certiorari to commissions established by law.'

In the instant case, the District Court entered as its certificate the following order:

'ORDERED that the opinion of this court filed November 7, 1969, is hereby certified to be one which passes upon a question of great public interest.'

Petitioner attached this certification to his petition as the vehicle for jurisdiction in this Court. Respondents countered with a Motion to Strike And/Or Dismiss the Petition, in which the following argument was submitted:

'Article V, Section 4(2), Florida Constitution, and Rule 4.5(c)(6), Florida Appellate Rules, provide for jurisdiction of this Court for issuance of a writ of certiorari in the instance where a District Court of Appeal decision 'passes upon a Question certified by such district court to be one of great public interest.' (Emphasis added.) In other words, it is the certification of a Question, not an opinion, which triggers the exercise of jurisdiction of the Supreme Court.'

This is a logical argument. It cannot be denied that the constitutional language carries with it the implication that a 'question' must be certified to be 'of great public interest,' and that it is this certified question which then acts as a vehicle to bring the entire decision before this Court. In considering an answer to this proposition, care should be given to separate this issue from the issue of whether we will review the propriety of the District Court's decision to certify, or withhold certification, in a case. It is firmly established that this is a matter wholly within the province of the deciding District Court. Article V, Section 4(2), Florida Constitution; Zirin v. Charles Pfizer Co., 128 So.2d 594 (Fla.1961).

The precise issue here is whether the form of the certificate comports with constitutional requirements. In Susco Car Rental System of Florida v. Leonard, 112 So.2d 832 (Fla.1959), wherein we said we could not question the appropriateness of a District Court's decision to certify a decision, the comment was made that nonetheless,

'(T)here is authority for the proposition, not raised or pertinent in the case at bar, that such a certificate would not cover or prevent inquiry as to whether a decision actually involves or properly 'passes on' a particular question. (Citations omitted).' 112 So.2d 835.

We have reviewed the cases in this area and have decided that the decision of Duggan v. Tomlinson, 174 So.2d 393 (Fla.1965), is closest to the point. In Duggan, neither litigant requested certification. The District Court, acting on its own motion, drew up a certificate which appears in the first page of our reported decision in the case. The certificate was drafted along the lines of the certificate in the instant case, i.e., the decision was certified as one passing upon a question of great public interest, but no question was particularized. In Respondent Tomlinson's brief there was an expression of bewilderment as to why the Court would have certified the decision, and the speculation was made that perhaps it was because the deciding panel was divided; see Duggan v. Tomlinson, 167 So.2d 2 (1st D.C.A. Fla.1964).

Respondent Tomlinson did not move to strike the certificate; indeed it was conceded in his brief that jurisdiction was not open to question. Nonetheless, this Court felt it necessary to respond to Tomlinson's comments. After setting out the District Court's certification, the Court went on to say, 174 So.2d at 393, 394:

'The provisions of Article V, Section 4(2) * * * fills an interstice in our constitutional certiorari jurisdiction and is particularly applicable to decisions of the district courts of appeal of first impression, where no decisional conflict or other factor involving our certiorari jurisdiction is invoked. The constitutional provision just quoted limits our certiorari review in these instances to those decisions of such district courts Which pass upon a question certified by such courts to be of great public interest. The certification process has been resorted to by the district courts of appeal in clear recognition of such constitutional limitations.' (Emphasis supplied.)

The above quotation recites standard doctrine previously set out in Zirin, supra, and other cases. Note where emphasis is supplied: the court continues to speak of decisions which pass upon Questions certified to be of great public interest. But then the court said:

'While the ultimate decision of whether the decision does pass upon a question of great public interest is one which the Constitution vests exclusively in the district courts, it would be of great assistance to this Court in reviewing the case if, in such instances, the district court would clearly set forth in such certificate the question or questions which in its opinion is of such public interest as to bring the decision within the orbit of the constitutional provision.'

From the above language, it is clear that we have conceded to the district courts absolute discretion in regard to determining the form of the certification. This decision is adhered to today, and the Motion to Strike stands denied; but since Duggan treats the issue somewhat obliquely, the following remarks are made so as to squarely decide the issue.

We do not view the language of Article V, Section 4(2) as requiring that a specific question be set out as certified because in any event we are privileged to review the entire decision and record. Zirin v. Charles Pfizer & Co., Supra; Confederation of Can. Life Ins. Co. v. Arminan, 144 So.2d 805 (Fla.1962); Scherer & Sons, Inc. v. International Ladies' G. Wkrs., 142 So.2d 290 (Fla.1962). This being so, we cannot escape having before us whatever question is contained in the case w...