Yeary v. Chief Judge of the Second Judicial Circuit

• Decision Date: 08 December 2022
• Docket Number: 1D21-2583
• Parties: Jessica J. Yeary, in her official capacity as Public Defender for the Second Judicial Circuit, Petitioner, v. Chief Judge of the Second Judicial Circuit, Respondent.
• Court: Florida District Court of Appeals

Jessica J. Yeary, in her official capacity as Public Defender for the Second Judicial Circuit, Petitioner, v. Chief Judge of the Second Judicial Circuit, Respondent.

No. 1D21-2583

Florida Court of Appeals, First District

December 8, 2022

Petition for Writ of Certiorari-Original Jurisdiction.

John Knowles, Assistant Public Defender, Tallahassee, for Petitioner.

Howard L. Dimmig, II, Public Defender, Tenth Judicial Circuit Bartow, for Amicus Curiae The Florida Public Defender Association, Inc.

Benjamin Eisenberg, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for Amicus Curiae The Florida Association of Criminal Defense Lawyers.

Ashley Moody, Attorney General, Trisha Meggs Pate, Bureau Chief, and William H. Stafford III, Special Counsel, Tallahassee, for Respondent.

Roberts, J.

The Office of the Public Defender for the Second Judicial Circuit filed a petition for writ of certiorari seeking an opinion that quashes Administrative Order 2021-06, which was entered by the Chief Judge of the Second Judicial Circuit. Administrative Order 2021-06 authorizes a pre-bond mental health screening assessment. This Court finds it lacks jurisdiction and dismisses.

The Florida Supreme Court has recognized that certain administrative orders have been challenged via a petition for writ of certiorari. 1-888-Traffic Schs. v. Chief Cir. Judge, Fourth Jud. Cir., 734 So.2d 413, 415-16 (Fla. 1999).

To the extent Administrative Order 2021-06 is an order that can be challenged this way, it must meet the requirements of a common law petition for writ of certiorari. Id. at 415. To be entitled to a writ of certiorari, the Office of the Public Defender must show that it will suffer irreparable harm, which means it has no adequate remedy on appeal. Jimenez v. Rateni, 967 So.2d 1075, 1076 (Fla. 2d DCA 2007). Irreparable harm is jurisdictional. Id. at 1077. If the jurisdictional prong is met, we must decide if the administrative order departs from the essential requirements of law. Id. After review of the petition, the response, and the reply, we find that the Office of the Public Defender failed to demonstrate irreparable harm to itself. Accordingly, we lack jurisdiction.

Dismissed.

Tanenbaum, J., concurs in result with opinion; Makar, J., dissents with opinion.

Any motion pursuant to Fla. R. App. P. 9.330 or 9.331 must be filed within five days of this decision. Any response must be filed within three days of the motion. Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

Tanenbaum, J., concurring in result.

This petition never should have been filed. The public defender-for herself and herself alone-asks this court to intervene in an apparent spat between her and the chief judge over how the latter administers the internal operations of the Second Judicial Circuit. She asks that we do this by issuing a writ of certiorari. To a student of ancient prerogative writs, this attempted use of certiorari should seem silly. The writ developed as a means by which the Crown had the record of a proceeding before a lower tribunal brought up to be reviewed for gross irregularities. The key here is the highlighted term, "proceeding":

There must be one in the lower tribunal before this type of writ can issue. Our supreme court echoed this age-old common-law limitation on the use of certiorari more than a century ago, as follows:

The office of the common-law certiorari . . . is to have the entire record of the inferior court brought up for inspection, in order that the superior court may determine therefrom whether the inferior court had jurisdiction, or had exceeded its jurisdiction, or had failed to proceed according to the essential requirements of the law, where no appeal or other direct means of reviewing the proceeding is given.

Jacksonville, T. & K.W. Ry. Co. v. Boy, 16 So. 290, 291 (Fla. 1894). Put more simply, "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." De Groot v. Sheffield, 95 So.2d 912, 915-16 (Fla. 1957) (emphasis supplied); see also Sirmans v. Owen, 100 So. 734, 735 (Fla. 1924) (explaining that the writ "lies only to review the actions of courts, boards, or officers exercising functions clearly judicial or quasi judicial").

The public defender, however, does not seek review of an order rendered in a judicial proceeding. Instead, the order she challenges is an administrative one setting policy for the entire judicial circuit. It authorizes pre-bond mental health screenings (perhaps even at court expense) in connection with bail determinations in yet-to-be-filed, future cases. The administrative order does not adjudicate a present dispute between parties, determine disputed facts looking retrospectively, or make an interlocutory ruling in a pending case. Moreover, the chief judge issued the order pursuant to the administrative authority given to him by the Florida Constitution. See Art. V, § 2(d), Fla. Const. ("The chief judge shall be responsible for the administrative supervision of the circuit courts and county courts in his circuit."); see also § 43.26, Fla. Stat. (setting out the administrative powers of the chief judge). This is hardly a judicial or quasi-judicial act; the order is quasi-legislative or administrative action. See Fla. R. Gen. Prac. & Jud. Admin. 2.120(c) (defining "administrative order" as a "directive necessary to administer properly the court's affairs"); Fla. R. Gen. Prac. & Jud. Admin. 2.215(b)(2) (tasking the chief judge with "direct[ing] the formation and implementation of policies and priorities for the operation of all courts and officers within the circuit"); cf. Bd. of Cnty. Comm'rs of Brevard Cnty. v. Snyder, 627 So.2d 469, 474 (Fla. 1993) (describing "legislative action [as] the formulation of a general rule of policy, whereas judicial action results in the application of a general rule of policy"); see W. Flagler Amusement Co. v. State Racing Comm'n, 165 So. 64, 65 (Fla. 1935) (contrasting a judicial or quasi-judicial act, which "determines the rules of law applicable, and the rights affected by them, in relation to past transactions"; with "a quasi legislative or administrative order," which "prescribes what the rule or requirement of administratively determined duty shall be with respect to transactions to be executed in the future").

We, in turn, cannot reach or affect that order through a writ of certiorari. See W. Flagler Amusement Co., 165 So. at 65 (explaining that certiorari "is a remedy limited solely to judicial or quasi judicial determinations," so it will not lie to address administrative or quasi-legislative action); see also Sirmans, 100 So. at 735 (noting that certiorari "will not lie to review administrative acts"); cf. De Groot, 95 So. at 914 (quasi-legislative decisions are not reviewable by the courts except on the sole ground of lack of jurisdiction). Because supervision of chief judges is not within our jurisdiction, there also is no other writ we could issue to review the administrative order. Cf. Wild v. Dozier, 672 So.2d 16, 18 (Fla. 1996) (noting that "there is nothing in our Constitution to indicate that district courts are to share in the administrative supervision of our trial courts"); Art. V, § 4(b)(3), Fla. Const. (limiting a district court's writ authority to that which is "necessary to the complete exercise of its jurisdiction").

Notwithstanding these clear limitations on the use of certiorari, the public defender (understandably) relies on an odd, passing reference by the supreme court to "common law certiorari" being used in the district courts of appeal as a "long-standing mechanism for challenging routine administrative orders." 1-888-Traffic Schs. v. Chief Cir. Judge, Fourth Jud. Cir., 734 So.2d 413, 415 (Fla. 1999). I say odd because the court does not provide any analysis to explain how such a use could comport with its well-established jurisprudence regarding certiorari. Still, the court's reference in the case should be of no moment, for it was dictum at best.

The 1-888-Traffic Schools case came before the supreme court as "a petition for writ of certiorari seeking review of an administrative order issued by" a chief judge. Id. at 414. The petition had been transferred there by this court. As the supreme court noted, though, it did not have certiorari jurisdiction, so it did not have authority to adjudicate the petition. See id. at 417.^[*] In other words, this court improvidently transferred a petition for certiorari to the supreme court, and the only judicial action taken by that court in 1-888-Traffic Schools was to transfer the petition back to this court.

This court had transferred the petition based on the supreme court's decision in Wild (just mentioned above), which held that the supreme court "has exclusive jurisdiction to review judicial assignments." See id., 672 So.2d at 17. The order before the court in 1-888-Traffic Schools, however, was not an order dealing with a judicial assignment, so this court's reading of Wild to include all administrative orders, as it so happened, was incorrect. See 1-888-Traffic Schs., 734 So.2d at 415. The supreme court, in turn, spent most of the opinion in 1-888-Traffic Schools explaining the limited reach of the holding in Wild and why it was declining to use its so-called "'all writs' power" to review the administrative order where it otherwise lacked jurisdiction to consider the petition. See id. at 415, 417.

This is not the stuff of which definitive pronouncements on points of law are made, and I do not read 1-888-Traffic Schools as upending the clear limitations that the supreme court historically placed on...