The RecordJOURNAL OF THE APPELLATE PRACTICE AND ADVOCACY SECTION

Volume VI, No. 1 THE FLORIDA BAR August 1997

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The Supreme Court Series, Part IV

The Jurisdiction of the Florida Supreme Courtby Gerald Kogan and Robert Craig Waters

Editor’s Note: This article is an ex-cerpt from “The Operation and Juris-diction of the Florida SupremeCourt,” by Gerald Kogan and RobertCraig Waters. ©1993 by GeraldKogan and Robert Craig Waters. Itwas originally published at 18 NovaL.Rev. 1151 (1994), and reprinted in1995 by the Supreme Court ofFlorida. It is reprinted here with per-mission.

long-standing judicial precedent. Asa result, these cases tend to be ana-lyzed under a kind of “common law”approach, although, strictly speak-ing, the jurisdiction arises from theconstitution itself. There are somelimitations imposed by the constitu-tion that did not arise from the com-mon law, but these usually involvethe specific class of persons to whoma writ may be issued by the Court.

Technically speaking, the FloridaSupreme Court has jurisdiction overany petition that merely requestssome form of relief available underthis category. The Court’s discretion,however, is severely limited in somecases by the body of case law andcommon law principles defining thescope of permissible judicial action.The “jurisdiction/discretion” distinc-tion is usually of little real conse-quence here. If the Court lacks dis-cretion to issue a writ, it cannot grantrelief as surely as if it lacked juris-diction.

Nevertheless, there are aspects ofthe controlling case law that can beexplained only by the distinction. Forexample, the Court’s discretion to is-sue any of the extraordinary writs isdefined by the applicable standard ofreview, which differs with each writ.It is common (though not precise) touse the word “jurisdiction” in its loosesense to include limitations on discre-tion, in which case the Court’s “juris-

I. Discretionary OriginalJurisdiction

The Florida Supreme Court’s dis-cretionary original jurisdiction in-volves a class of legal “writs” that,with some exceptions, originated cen-turies ago in the English commonlaw. Most Floridians know littleabout these writs, with the possibleexception of habeas corpus, and evensome lawyers tend to lose sight of thecreative ways the writs can be used.In truly exceptional circumstances,one of these so-called “extraordinarywrits” may provide jurisdiction whennothing else can.

Because most of the writs are an-cient, there is a highly detailed bodyof case law governing their use. Theconstitution itself does little morethan identify the writs and assign thecourt jurisdiction over them,1 so theFlorida Supreme Court almost al-ways gauges these cases based on

diction” over the extraordinary writsalso would be determined by thestandard of review.

However, there are cases wherethe Court expressly accepts jurisdic-tion, hears the case, and issues a fullopinion determining that the stan-dard of review has not been met anda writ cannot be issued.2 If the Courtlacked jurisdiction of such cases, thenit could not even hear them, muchless accept jurisdiction and issue afull opinion.

There is another aspect of “discre-tion” that deserves some mention.The fact that the Court’s discretionto issue the writs is limited by judi-cially created case law leaves open

INSIDE:

Appellate Rules Liaison CommitteeReport ........................................ 13

1997-98 Committee Chairs/Vice-chairs ................................. 15

Seeking Review in the Florida CircuitCourts ........................................ 16

Minutes of the Executive CouncilMeeting ...................................... 21

Amicus Curiae Committee SeeksVolunteers .................................. 22

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Message from the Chairby Christopher L. Kurzner

Our section has made great stridesin quite a short time. It seems like onlylast week that a dozen or so of us satin the conference room (or by tele-phone) at the Fowler, White firm inMiami deciding our initial slate of ex-ecutive council members and officers.Now, we have nearly 1,000 members,and have done more than I had ex-pected or hoped we would by this time.

However, with the growth both insize and in activity, our section runsthe risk of experiencing growingpains. We are not mature enough tosustain unforeseen setbacks on morethan an occasional frequency. For ex-ample, this past year, through no fault

of any of our CLE steering committeevolunteers, we were unable to presenteither of the two programs that wehad taken considerable time and ef-fort to produce. Not only did the sec-tion suffer a loss of revenue, but moreimportantly, we lost the opportunityto offer our members and the Bar ourexpertise.

Because of our relative infancy, andbecause of the risks that still lurk aswe continue to expand our activities,my goal this year is to focus on mak-ing the projects currently under devel-opment the best they can be, and toreflect on how prior projects havefared, with an eye toward deciding

what works best for us as a section.Critical in making this year a successis your input of time and talent. Myhope is for our committees to becomeeven stronger and more active thanthey currently are. Accordingly, pleasetake time during the next severalweeks to consider your current levelof involvement with the Section, andif you have not been particularly ac-tive, consider becoming more active onthe committee level. If you have notbeen active in the past, I can assureyou that our Section offers consider-able opportunity for those who wishto make bar activities a worthwhileendeavor.

the possibility of the Florida Su-preme Court refining or modifyingthe standards of review. Such modi-fications are unusual, but they dohappen.3 It would be hard to say inthese cases that the Court somehowhas modified its own “jurisdiction,”because this would imply some inher-ent power to depart from the consti-tution. On the whole, the infrequentmodifications made to standards ofreview are best understood aschanges in discretion, not changes injurisdiction.4

A. MandamusThe first extraordinary writ is

“mandamus,” whose name in Latinmeans “We command.”5 As the namesuggests, mandamus is a writ of com-mandment, a fact underscored by itshistory. In ancient times, the writ is-sued as a command from the Sover-eigns of England when they sat per-sonally as judges; but, it later cameto be a prerogative of judges of theCourt of King’s Bench.6 Because ofthe writ’s coercive nature, its use issubject to severe restrictions devel-oped in Florida and earlier Englishcase law. In broad terms, the FloridaSupreme Court today may issuemandamus only to compel state offic-ers and state agencies to perform a

purely ministerial action where thepetitioner otherwise would suffer aninjury and has a clear and certainright to have the action done. Thereare a number of concerns here.

In the Florida Supreme Court,unlike other state courts, mandamusmay issue only to state officers andstate agencies.7 This limitation arisesfrom the constitution itself, and is theonly restriction on mandamus ex-pressly imposed there.8 The Courthas never fully defined what theterms “state officers” and “state agen-cies” mean. The cases appear to as-sume that these terms include agen-cies and public office holders withinthe three branches of state govern-ment, but nothing establishes thiswith any finality. Arguably, state of-ficers could include persons holdingan office created by the Florida Con-stitution,9 but the Court has neverclearly said so. Moreover, the consti-tution itself seems to contrast “stateofficers” with “constitutional officers”elsewhere, implying they are not thesame thing.10

Someone seeking mandamus alsomust establish that the action beingsought is “ministerial.” An action isministerial only to the extent that therespondent has no discretion over thematter. There are self-evident rea-sons for this requirement. No courtcan compel that lawful discretion beexercised to achieve a particular re-sult, however fair it may seem to do

so.11 Any other rule would permitjudges to exercise dictatorial powersthrough the simple expedient of man-damus. Thus, a respondent’s lack ofdiscretion is an absolute prerequisiteto mandamus.

However, the lack of discretion canbe partial because it is possible for anaction to be partly ministerial andpartly discretionary. This most com-monly arises where the law grantsdiscretion to take some action butspecifies a particular kind of reviewprocess and factors that must be con-sidered when and if discretion is ex-ercised. Sometimes a respondentmay depart from the required pro-cess. When so, mandamus can issueonly to require a proper review, notto mandate that any particular dis-cretionary outcome must be reached.

Thus, the Court has held thatmandamus cannot compel the discre-tionary act of granting parole to aninmate; yet, mandamus potentiallycould be used to compel the FloridaParole and Probation Commission toconform its parole review process tothe clear requirements of the consti-tution.12 Likewise, mandamus cannotbe used to compel the Florida Depart-ment of Corrections to perform thediscretionary act of awarding “earlyrelease” credits to inmates; yet man-damus can be used to require theDepartment to employ a constitu-tionally required process in review ofsuch cases.13

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The person seeking mandamusalso must show the likelihood thatsome injury will occur if the writ isnot issued.14 If there is no possibilityof injury, then mandamus is an inap-propriate remedy.15 Thus, mandamuswill not be issued if doing so wouldconstitute a useless act16 or wouldresult in no remedial good.17 Thissituation might exist, for example,where the action that would be com-pelled already has been done.18

For example, the Court has foundthe writ inappropriate where a li-cense was taken away improperly buthad been obtained in the first in-stance through fraud or deceit.19 Inother words, a valid reason existed torevoke the license, and, therefore, itwould be a useless act to issue man-damus merely because an improperreason had been given for revocation.Moreover, injury does not exist if pe-titioners are able to perform the min-isterial acts in question for them-selves.20 However, injury can includesome generalized harm, such as a dis-ruption of governmental functions21

or the holding of an illegal election.Petitioners seeking mandamus

also must establish that they have a“clear and certain” right imposing acorresponding duty on the respon-dents to take the actions sought.22 Aright is clear and certain only if it isalready plainly established in preex-isting law or precedent.23 Thus, theopinion in which mandamus will beissued cannot be used as the vehiclefor creating a right previously uncer-tain or not yet extended to the situa-tion at hand. The right already musthave come into existence throughsome other legal authority.24 More-over, the right must be “complete”and unconditional at the time thepetition is brought. The existence ofany unfulfilled condition precedentrenders mandamus improper.25 Like-wise, mandamus cannot be used toachieve an illegal or otherwise im-proper purpose, because there is noright to break the law or violate pub-lic policy.26

On occasion, Florida courts im-posed another element for which apetitioner had to show the existenceof no other adequate remedy.27 Thiswas justified on the grounds thatmandamus exists to correct defects injustice, not to supersede other ad-equate legal remedies. The extraor-

dinary nature of the writ supportsthis rationale. However, in 1985, theFlorida Supreme Court seemed toindicate that the “no adequate rem-edy” requirement no longer exists, atleast in cases involving “strictly legalconstitutional” questions.28

The reasons for this conclusion arenot clear, nor is the validity of theresult certain. The opinion makingthese statements obviously misreadthe precedent on which it relied29 andcould be criticized or overruled onthat basis. The “no adequate remedy”requirement serves a useful purposein that it requires petitioners to ex-haust other sufficient means beforeburdening the Florida SupremeCourt’s docket. Possibly the Courtmay see fit to reinstate the require-ment at some point. In any event, thewrit of mandamus remains discre-tionary and can be refused withoutreason if the Court believes a peti-tioner has another good remedy.

The terms “state officers and stateagencies” as used in the constitutioninclude judges and courts,30 thoughthe Florida Supreme Court generallyseems to confine its “judicial” manda-mus cases to petitions directed at thedistrict courts of appeal. In thesecases, one specialized use of the writis to require the respondent-judges toexercise jurisdiction that has beenwrongly denied in the lower court. Atearlier common law, this device wasknown as the writ of procedendo,31

though today the same concept hasbeen subsumed under mandamus.32

However, mandamus would be inap-propriate unless the law clearly re-quired the lower court to exercise itsjurisdiction and it failed to do so.33

Finally, the Florida SupremeCourt has a long-standing custom—but one not uniformly followed—re-garding the actual issuance of man-damus. As a matter of courtesy, theCourt sometimes says it will with-hold issuing the writ because the jus-tices are confident a respondent willconform to the majority opinion.34

The practice is a sound one, if onlybecause it may blunt some of thesting the losing party may feel. Inany event, if a respondent later re-fused to conform, the Court could stillissue a previously “withheld” writ ona proper motion to enforce the man-date. The fact that a writ is actuallyissued, however, never indicates any

special onus.

B. Quo WarrantoThe second extraordinary writ is

quo warranto, whose name in Latinposes the question, “By what right?”As the name suggests, quo warrantois a writ of inquiry. Historically, theCrown of England developed the writas a means of calling upon subjectsto explain some alleged abuse of anoffice, franchise, or liberty within theCrown’s purview.35 Today, quo war-ranto continues in Florida as themeans by which an interested partycan test whether any individual im-properly claims or has usurped somepower or right derived from the Stateof Florida.36

Standing to seek quo warranto canbe inclusive. The Florida SupremeCourt has held that any citizen maybring suit for quo warranto if the caseinvolves “enforcement of a publicright.”37 In practice, quo warrantoproceedings almost always involve apublic right because the Florida Su-preme Court can issue the writ onlyto “state officers or state agencies.”38

(This limitation is the only expressrestriction imposed by the constitu-tion, all others being derived fromcase law.) Thus, the cases taken to theCourt usually are limited to thoseinvolving some allegedly improperuse of state powers or violation ofrights by these officers or agencies.

One use of quo warranto is to testthe outcome of a disputed election,such as where one person hasclaimed the powers of the electiveoffice but another contends this wasunlawful.39 Actions of this variety aregoverned in part by Florida Statutesspecifying that the petition bebrought by the Attorney General or,if the latter refuses, by the personclaiming title to the office.40 If theCourt grants the petition, it can is-sue a judgment of ouster41which hasthe effect of vesting the claimantwith title to the office. However, if theAttorney General did not consent tothe suit, the judgment remains sub-ject to challenge by the state.42 Thereare other uses of quo warranto. Forexample, quo warranto has been usedby a legislator who argued that theGovernor exceeded his constitutionalauthority in calling a special sessionof the Legislature.43 In that instance,the petition for quo warranto was

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filed by the legislator as an originalproceeding in the Court.44 The writhas also been used to decide whethera state public defender’s office ex-ceeded its statutory authority by rep-resenting indigent clients in federalcourt proceedings.45 As in the case ofmandamus, the Florida SupremeCourt sometimes has “withheld” issu-ance of a writ of quo warranto as amatter of courtesy where it appearsthe Court’s decision will be honored.46

This custom has not been followeduniformly, however, and the failure towithhold issuance has no real signifi-cance. In any event, quo warranto isa somewhat exotic legal device thatis used only occasionally by theCourt.

C. Writs of ProhibitionThe third extraordinary writ is

that of prohibition. Like the two writsdiscussed above, the writ of prohibi-tion has an ancient origin in Englishlaw. It arose out of the early strugglebetween the royal courts controlledby the Crown and the ecclesiasticalcourts controlled by the Church. Itsprimary purpose was to prevent anecclesiastical court from encroachingupon the prerogatives of the Sover-eign.47 Thus, the writ of prohibitioncame into being as a preventive writand retains that quality to this day.

In Florida, prohibition is now theprocess by which a higher court pre-vents an inferior tribunal from ex-ceeding its jurisdiction.48 The writmay be obtained only by a petitionerwho can demonstrate that a lowercourt is without jurisdiction or is at-tempting to act in excess of jurisdic-tion regarding a future matter, andthe petitioner has no other adequatelegal remedy to prevent an injurythat is likely to result.49 There are anumber of concerns here.

The writ may only be directed to alower court and not to state agencies,state officers, or state commissions.This restriction is imposed by theconstitution50 as a result of the 1980jurisdictional reforms, which deletedthe Florida Supreme Court’s author-ity to issue writs of prohibition tosome quasi-judicial commissions.51 Ineffect, this ended the Court’s earlierjurisdiction over state administrativeagencies when they acted in theirquasi-judicial capacities.52 Underlong-standing precedent, writs of pro-

hibition clearly cannot reach an ac-tion that is purely legislative or ex-ecutive in nature.53

However, the Florida SupremeCourt’s power to issue writs of prohi-bition to courts is now the same forboth the district courts54 and the cir-cuit courts.55 Prior to the 1980 re-forms, the authority over trial courtshad been limited to “causes withinthe jurisdiction of the supreme courtto review.”56 The restriction was de-leted in 1980, effectively vesting theFlorida Supreme Court with poten-tial prohibition jurisdiction over anycause arising in a trial court.57 Pre-sumably, this includes the countycourts, though in practice such caseswill seldom involve matters of suchgravity for the Court to exercise itsdiscretion.

Petitioners must also show thatthe lower court is without jurisdic-tion or is attempting to act in excessof jurisdiction. For example, prohibi-tion is proper to restrain a lowercourt that clearly lacks jurisdictionover the subject matter.58 The FloridaSupreme Court often has contrasted“lack of jurisdiction” with those situ-ations in which a court merely exer-cises jurisdiction erroneously. Intheory, a writ of prohibition is notproper for the latter.59 In practice,however, there is no realistic way todraw a clear distinction between thelack of jurisdiction and the erroneousexercise of jurisdiction as the two of-ten blur together.

Perhaps as a result, the case lawoften reaches results that seem hardto reconcile with a strict “lack of ju-risdiction” element. In several cases,for example, the Florida SupremeCourt has used prohibition to preventa lower court from imposing re-straints on a prosecutor’s discretionto seek the death penalty in a crimi-nal trial. This has occurred eventhough the lower court plainly hadjurisdiction over the issues but hadmerely engaged in conduct best char-acterized as a clear error.60

On policy grounds, such a use ofprohibition has some merit. It couldpromote judicial economy by allow-ing the Florida Supreme Court toprevent a clear error from infectingthe entire proceeding. This wouldforestall the likelihood of a uselesstrial that must inevitably be reversedon appeal. Nevertheless, such a rule

comes close to vesting the Court witha kind of interlocutory appellate ju-risdiction, which could become oner-ous if not used with restraint. As apractical matter, it seems unlikelythe Court will extend this particularuse of prohibition much beyond theunusual factual pattern from whichit arose.

The next element a petitionermust show in order to obtain a pro-hibition writ is that the alleged im-proper actions of the lower court willoccur in the future.61 The FloridaSupreme Court often has noted thatprohibition is a preventive writ, nota “corrective” one.62 Thus, prohibitioncan be directed only to future acts,not past ones. The cases suggest thatthe future act must to some degreebe “impending.”63 “Past acts” can in-clude an order already entered orproceedings already completed.64

Additionally, prohibition has beenallowed for orders previously enteredif the primary effect is on a proceed-ing that has not yet occurred.65 Thisuse is justifiable in that such ordersare directed to the future, but theresult is a blurring of the distinction.The best interpretation probably isthat a “past act” involves a significantdegree of finality, whereas a “futureact” does not.

To obtain prohibition, a petitionermust also show that no other ad-equate remedy exists.66 The key wordis “adequate.” Other remedies mayexist that are inadequate, incom-plete, or unavailable to the petitioner;if so, then prohibition is not fore-closed.67 As a general rule, the factthat an appeal will give the petitioneran adequate and complete remedyrenders prohibition unavailable.68 Ifanother extraordinary writ providesan adequate and complete remedy,then prohibition also should be de-nied.69 However, the Court still mightreview the case by treating the peti-tion as though it had requested theproper remedy.70

The final element is that prohibi-tion can be issued only to preventsome likely and impending injury.71

Prohibition is not available if the is-sues have become moot by the pas-sage of time,72 nor can it be used toissue a purely advisory opinion estab-lishing principles for future cases.73

Opinions discussing the writ oftendescribe it as being appropriate only

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in “emergencies,”74 implying that thelikelihood of some injury must be realand immediate.

As with many of the other extraor-dinary writs, the Florida SupremeCourt sometimes withholds formalissuance even when prohibition isgranted.75 This is a custom not uni-formly followed in the cases, and isusually done as a matter of courtesyor when the Court is confident a re-spondent will adhere to the decision.Failure to withhold a writ in particu-lar cases thus has no real signifi-cance, because the result is the same.

D. Habeas CorpusThe best known of the extraordi-

nary writs is habeas corpus, whosename in Latin means “You shouldhave the body.”76 The name arisesfrom the fact that the writ alwaysbegan with these words, which weredirected to one who was detaininganother person. The writ typicallyrequired the respondent to bring thebody of the detained person intocourt so that the validity of the de-tention might be examined.77 Habeascorpus thus arose as a writ of inquiryused to determine whether the de-tention is proper78 or, put more accu-rately, whether the restraint on lib-erty is lawful.79 Potentially, anydeprivation of personal liberty can betested by habeas corpus, and for thatreason it is often called the GreatWrit.80

The obvious relationship to theconstitutional right of liberty81 ex-plains why habeas corpus is the onlywrit specifically guaranteed by theFlorida Constitution’s Declaration ofRights, which forbids suspension ofhabeas corpus except in cases of re-bellion or invasion.82 Habeas corpusis also the most frequently used andmost generously available of the ex-traordinary writs. For that reason,the case law is exceedingly complex.Entire treatises have been writtenaddressing the writ’s many nuances.A full discussion of habeas corpusthus is not possible within the lim-ited space of this article.

The standard of reviewing habeasclaims can also be complex. In verybroad and general terms, the Courthas said that habeas cannot be issuedexcept where the petitioner showsreasonable grounds to believe that apresent, actual, and involuntary re-

straint on liberty is being imposedwithout authority of law and that noother remedy exists. Habeas is im-proper if the restraint has ended,83 ifthere is no actual restriction on lib-erty,84 or if restrictions on liberty aremere future possibilities85 or have notbeen coercively imposed.86 Even lim-ited restraints on liberty can be suf-ficiently coercive to justify habeasrelief, including an unlawfully im-posed parole.87

Habeas is also proper only if therestraint is without legal justifica-tion88 and no other remedy exists tocorrect the problem.89 It is often saidthat habeas cannot substitute forremedies available by appeal, by mo-tion to dismiss, or by proper use ofprocedural devices that were avail-able prior to the time the restraintson liberty were imposed.90 Thus,strictly speaking, habeas would notbe a proper remedy where counselfailed to make a timely motion thatcould have prevented the restraint onliberty, though the matter potentiallymight be reviewable as a claim forineffective assistance of counsel.

Likewise, habeas is improper tothe extent that the restraint on lib-erty itself is not the true issue. Thisoften hinges on fine distinctions. Forexample, inmates alleging that “earlyrelease” credits were computed in anunconstitutional manner would notbe entitled to habeas. In that in-stance, the real issue was not the self-evident restraint on liberty, but theimproper performance of a ministe-rial act (computing “early release”credits) that may or may not reflecton the lawfulness of the detention;and habeas thus, was not the properremedy.91

In sum, habeas is not a properremedy if some unfulfilled conditionprecedent still must occur to renderany further restraint on liberty un-lawful even if the writ were issued.But habeas would be one possibleremedy at a later date if “early re-lease” credits were properly com-puted, the inmate clearly was en-titled to release, and prison officialsfailed to honor the law. It is worthnoting, however, that an allegedlyinvalid death penalty itself consti-tutes a restraint on liberty evenwhere there is no question that thedefendant will remain in prison evenif the penalty is vacated.92 But the

habeas petitioner’s claim must genu-inely be directed at the validity of thepenalty itself, not at some other mat-ter.93

There are three special aspects ofhabeas corpus that deserve a passingmention. The most common and ob-vious use of habeas corpus is by in-mates who wish to challenge the law-fulness of their presentimprisonment. Dozens of petitions tothis effect come to the Florida Su-preme Court every week.94 However,habeas corpus is not strictly confinedto a penal or even a criminal law set-ting. “Civil detention” of a person canpotentially be tested by the writ ofhabeas corpus, including matters be-yond the obvious example of involun-tary commitments for psychiatrictreatment.95 Even detention imposedon someone by a private individualpotentially can be tested by habeascorpus. The most common use iswhere one parent alleges that theother parent has taken custody of achild wrongfully.96

The second point deserving men-tion is that the remedy available byhabeas corpus has been supple-mented and modified somewhatsince the 1960s by innovations in theFlorida Rules of Court. Some types ofhabeas claims by inmates now mustbe brought under Rule of CriminalProcedure 3.85097 in the trial courtwhere the matter in question origi-nated. Rule 3.850 was originally cre-ated by the Florida Supreme Courtas an emergency means of dealingwith the substantial turmoil createdby the decision of the United StatesSupreme Court in Gideon v. Wain-wright.98 At the time, the Rule’s im-mediate purpose was to prevent theFlorida Supreme Court from beingoverwhelmed by habeas petitionsprompted by Gideon’s holding thatFlorida had violated the rights ofhundreds of indigent felony offendersconvicted without benefit of coun-sel.99

Over the years, Rule 3.850 has re-tained its original purpose of creat-ing a procedural “channel” throughwhich a large class of “habeas” claimsmust flow. There is already a detailedbody of case law interpreting theRule, so bulky that an adequate out-line cannot be given in an article ofthis size. However, the Court has notlost sight of Rule 3.850’s origin as a

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refinement of habeas corpus.In a 1988 case, for example, the

Court described Rule 3.850 as “a pro-cedural vehicle for the collateral rem-edy otherwise available by writ ofhabeas corpus,” one that creates afact-finding function in the trialcourts and a uniform method of ap-pellate review.100 In 1992, the Courtfurther suggested that Rule 3.850must be construed in a manner consis-tent with the Florida Constitution’sstricture that habeas corpus shall be“grantable of right, freely and with-out cost.”101

These refinements to habeas cor-pus again show how even the extraor-dinary writs evolve over time. Obvi-ously, further evolution will occur inyears ahead as new problems arisethat are unanticipated in the thou-sand years of Anglo-American prece-dent upon which Florida’s legal sys-tem draws. Such changes are notnecessarily bad, nor do they necessar-ily require amendment of the consti-tution. The upheaval caused byGideon, for example, was met andovercome through the Court’s rule-making powers, described more fullybelow. The Court “channelized” ha-beas corpus into an orderly proce-dural process that not only was con-sistent with the constitution buthelped ensure that fundamentalrights would be honored without de-lay.

The final point to note is that theFlorida Constitution does somethingvery unusual with the habeas powerit grants: The power is conferredupon each justice of the Florida Su-preme Court individually.102 In otherwords, the constitution permits eachjustice to issue the writ as an indi-vidual without the necessity of ob-taining assent from a majority of theCourt. The justices’ individual powerof granting habeas corpus under-scores that ready access to the writwas intended as part of the con-stitution’s protection of liberty.

E. “All Writs”The state constitution also grants

the Florida Supreme Court authorityto issue “all writs necessary to thecomplete exercise of its jurisdic-tion.”103 The operative constitutionallanguage here has remained essen-tially unchanged for many decadesnow,104 although the construction

placed on that language has fluctu-ated almost erratically at times. As aresult, the Court’s “all writs” author-ity remains one of the most confus-ing and unsettled areas of jurisdic-tion, a problem worsened by theinfrequency of all writs cases. The allwrits clause cannot be understoodapart from its history.

Prior to 1968, the cases dealingwith the all writs clause plainly stoodfor two things. First, the all writspower could not be invoked unless acause was already pending before theCourt on some independent basis ofjurisdiction. Second, the Court’s au-thority in this regard could only bedirected at purely ancillary matters.In sum, “all writs” meant ancillarywrits in pending proceedings.105

Then, in the 1968 case of Couse v.Canal Authority,106 the Court sud-denly and dramatically overruled itsearlier standard of review. “All writs”authority would now exist over anymatter falling within the Court’s “ul-timate power of review” even if nocase on the matter was pending inthe Florida Supreme Court at thetime. The 1968 Court, then suasponte, amended the Rules of Appel-late Procedure to set forth its newstandard: All writs jurisdiction exists“only when it is made clearly to ap-pear that the writ is in fact necessaryin aid of an ultimate power of re-view.”107 In sum, the standard of re-view was changed from “ancillarywrits” to “aiding ultimate jurisdic-tion,” though it was not altogetherclear in Couse what this changemeant.

Two years later, the Court men-tioned its all writs powers in a waythat apparently expanded them evenfurther. In a rancorous dispute be-tween the Governor and the Legisla-ture, the 1970 Court seemed to sug-gest that it was exercising some formof original all writs jurisdiction be-cause the case “vitally affect[ed] thepublic interest of the State.”108 How-ever, the case is vague and actuallymay have involved the issuance of awrit of prohibition, with the Courtimprecisely referring to “the all writsection” as the basis for jurisdic-tion,109 a misreference that has alsohappened elsewhere.110

Later cases, unfortunately, haveread this same vague language quiteexpansively. In 1974, the Court con-

fronted a case involving the all writsauthority of the district courts of ap-peal. While deciding the case, theCourt detoured into dicta reiteratingthe 1968 standard of review and add-ing to it: The Florida SupremeCourt’s original all writs jurisdictionnow would extend to “certain cases[that] present extraordinary circum-stances involving public interestwhere emergencies and seasonableconsideration are involved that re-quire expedition.”111 It was unclearwhether this dictum was a revisionof the Couse standard or merelyadded an additional requirementthat must be met before all writs ju-risdiction could be invoked. If theformer, “all writs” could have beenconverted into a form of “reach-down”jurisdiction by which any sufficientlyimportant case could originate in theFlorida Supreme Court, with all trialand appellate issues potentially be-ing resolved in one sitting.

For the next two years, the Courtmade little effort to explain whetherits all writs power would operate sosweepingly.112 Then in 1976 anotherdramatic reversal occurred: TheCourt suddenly reverted to its pre-1968 standard of review. No real rea-son for doing so was given,113 and theCourt did not mention or overrule therelevant cases it had issued since thelate 1960s. Nor did the Court evennote that the relevant Rule of Appel-late Procedure still contained the lan-guage added sua sponte to enforceCouse.114 The Court’s decision wascriticized as being “rightly decidedbut wrongly explained.”115

The older ancillary writs standarddoes seem dated in light of modernprocedural innovations. Common-law “ancillary writs” such as auditaquerela have vanished from the law,replaced by procedural rules nolonger even identified by the some-what quaint term “writ.” In theFlorida Supreme Court, modern-daydescendents of the old ancillary writsare sometimes still seen, such as thewrit of injunction and the relatedconcept of a judicial “stay.” However,the Court in recent years has neverattempted to use the all writs clauseas the basis of jurisdiction over suchmatters. Rather, the Court routinelyfinds some other basis of jurisdic-tion.116 In this light, an ancillary writsstandard risks converting “all writs”

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into something essentially meaning-less, contrary to the settled rule thatall constitutional language should beconstrued to have an effect if at allpossible.117

Nevertheless, by the late 1970s,the Court seemed to be applying therestrictive ancillary writs standard,though it typically did so with a mini-mum of explanation.118 Then, in 1982,everything changed again: Anotherdispute between the Legislature andthe Governor came to the Court thatwas hard to pigeonhole into any par-ticular basis of jurisdiction. To hearthe case, the Court abruptly returnedto the less restrictive Couse standardit had adopted in 1968 and appar-ently abandoned in 1976. Once again,no effort was made to overrule or rec-oncile the inconsistent cases.119

Significantly, the 1982 Court madeno mention of its earlier dicta sug-gesting that all writs jurisdictionwould exist if the issue was merelyimportant enough. Rather, the Courtapplied the earlier “aiding ultimatejurisdiction” standard that had beendeveloped in 1968 by Couse. TheCourt found that it had all writs ju-risdiction in this particular case be-cause the Governor had taken ac-tions that might restrict theLegislature’s ability to reapportionthe state’s legislative and congres-sional districts. Florida’s constitutionrequires the Court to review all ap-portionment plans for constitutional-ity,120 so the Governor’s actions couldhave limited the Court’s ultimateexercise of that jurisdiction.

Very little has happened in morerecent years to illuminate the allwrits power. In 1984, the Court citedthe all writs clause as the basis forhearing a death-row inmate’s requestfor a judicial order requiring a com-petency hearing, though no relief wasgranted.121 Exercising jurisdiction inthis manner was consistent with the“aiding ultimate jurisdiction” stan-dard. The state constitution assignsthe Florida Supreme Court exclusiveand mandatory appellate jurisdictionover cases involving death sen-tences.122 Thus, the Court has the ul-timate jurisdiction to ensure thatexecutions are conducted lawfully.The all writs clause could be invoked,in other words, to review any matteror to issue any order necessary toensure the propriety of a death sen-

tence. An example would be orderinga judicial determination of compe-tency where there was a seriousenough question.

Nevertheless, the only rule thatcan be distilled from this confusingbody of law is that the “aiding ulti-mate jurisdiction” standard appar-ently prevails at the moment. Its truescope remains somewhat unclear, es-pecially since the earlier dicta about“sufficiently important” cases hasnever actually been overruled.

The better view probably is thatthe Court rejected these dicta by ig-noring them in its more recent opin-ions, or else regards them as an ad-ditional requirement above andbeyond “aiding ultimate jurisdiction.”There are sound reasons for this con-clusion. A “sufficient importance”standard could convert “all writs”into a broad form of reach-down ju-risdiction, even though the 1980 ju-risdictional reformers considered andrejected much the same thing. More-over, sufficient importance is an in-herently subjective concept thatwould be hard to define in practice.

The Couse standard is probablybest seen as very limited and casesqualifying under it would be rare.The policy of “aiding ultimate juris-diction” makes most sense when con-fined to a class of cases over whichthe Court normally would have someform of original or appellate jurisdic-tion, but where the full and completeexercise of that jurisdiction seemslikely to be curtailed or defeated be-fore the Court could otherwise hearthe case. That would mean there aretwo elements: the existence of “ulti-mate jurisdiction” found in the textof the constitution, and some unusualand impending factor likely to limitor frustrate the complete exercise ofthat jurisdiction.123 This is consistentwith the constitution, which itselfsays that the purpose of “all writs” isto allow a “complete exercise” of ju-risdiction.124

The “ultimate jurisdiction” re-quirement would also mean thatproperly written court opinionsshould identify at least two constitu-tional provisions establishing juris-diction. One would be the provisioncreating the ultimate basis of juris-diction, and the other would be theall writs clause. In other words, “allwrits” as conceived in Couse has a

“dual jurisdiction” requirement.125

The few cases already decided inthis subcategory suggest another sig-nificant conclusion: The Court’s allwrits power is on its firmest footingin death cases, especially those in-volving pending executions,126 and inpressing governmental crises.127 Inthat vein, it is worth noting that thecase In re Order on Prosecution inCriminal Appeals,128 is probably bestunderstood as an all writs case mis-takenly assigned to the wrong cat-egory of jurisdiction. The case obvi-ously involved a pressing gov-ernmental crisis, as the Court ex-pressly noted.129 A strong argumentexisted there that the county govern-ments affected by the district court’ssua sponte order should have beenjoined as parties below under the ruleof due process. Moreover, the FloridaSupreme Court had “ultimate juris-diction” over the kind of case in-volved,130 and the district court’s fail-ure to join the counties threatened todeprive the Florida Supreme Courtof the full exercise of its ultimate ju-risdiction because of a technical lackof standing. This would justify “allwrits” review under the Couse stan-dard.

Another recent death case illus-trates much the same situation. In1993, death-row inmate MichaelDurocher, the subject of an activedeath warrant, mailed a letter to theFlorida Supreme Court seeking todismiss his attorney and announcingthat he would not oppose his ownpending execution. His attorney,meanwhile, argued that Durocherwas mentally incompetent and couldnot make an intelligent decision. TheCourt accepted the case and orderedthe trial judge to hold a hearing todetermine whether Durocher wasmaking an intelligent waiver of hisright to counsel.131

As a basis of jurisdiction, the Courtcited only its habeas powers.132 How-ever, the Court elsewhere has notedthat the writ of habeas corpus is in-appropriate if the actual dispute isnot the lawfulness of a restraint onliberty.133 That certainly was the casewith Durocher because the only issuewas whether his attempt to dismisscounsel was effective. The restrainton liberty was not in question. On thewhole, Durocher’s case is probablybest understood as an all writs case

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mistakenly assigned to the wrongcategory of jurisdiction. All writs au-thority clearly was appropriate be-cause of the unusual facts and theCourt’s ultimate jurisdiction to en-sure the lawfulness of state execu-tions.134

A few other aspects of all writsjurisdiction deserve comment. Asnoted above, the Court occasionallyhas cited the all writs clause as a ba-sis for jurisdiction over writs such asprohibition, which are actually au-thorized by separate clauses or pro-visions of the constitution. This is apractice that promotes confusion andshould be avoided. The Court’s allwrits authority now has evolved intoa distinct concept, so it muddies thewaters to use the phrase “all writs”as a generalized reference to any orall of the extraordinary writs. The1970 case of Pettigrew apparentlymade this mistake and was latercited as authority in a questionableeffort to expand the all writs power.The better practice is to confine allwrits jurisdiction to those cases ap-plying the Couse standard, at least tothe extent this is possible.

In this vein, it should be noted thatthere is at least one extraordinarywrit, error coram nobis, for which theCourt has tended to cite the all writsclause as a basis for jurisdiction.135

However, that is an unusual case andin any event, error coram nobis nowhas been rendered largely obsolete.Previously the writ of error coramnobis136 was the method by which aprior conviction could be challengedon the basis of newly discovered evi-dence.137 In 1989, the Florida Su-preme Court essentially abolishedthe writ as it applies to persons stillincarcerated. Challenges by such per-sons now must be presented to thetrial court pursuant to Florida Ruleof Criminal Procedure 3.850.

Error coram nobis appears to re-main available only for persons notpresently in custody.138 Even this lim-ited remnant is hard to justify. Theonly evident reason for retaining itis that Rule 3.850 technically is avail-able only to prisoners in custody.139

Yet this fact alone hardly seems tojustify retaining the far more restric-tive coram nobis standard140 only forpersons already released from cus-tody. The better practice would be toallow all persons the same remedy

when newly discovered evidence ispresented to challenge a prior convic-tion. This would require a change inthe Rules of Criminal Procedure,141

but one that would seem worthwhileand fairer.

Attempts have sometimes beenmade to use the all writs clause as ameans of resurrecting a variety ofwrits that existed in earlier commonlaw. An example is the common-lawwrit of certiorari. This is an extraor-dinary “writ of review” that should bedistinguished from the separate “ap-pellate certiorari” jurisdiction previ-ously granted to the Court by provi-sions of the Florida Constitutiondeleted in 1980. Common-law certio-rari exists to review and correct ac-tions by a lower tribunal that violatethe essential requirements of the lawwhere no other adequate remedy ex-ists.142 However, it is now clear thatthe Florida Supreme Court cannotissue the writ. The Court’s authorityin this regard was abolished in the1957 jurisdictional reforms that cre-ated the district courts of appeal143

and was not revived by the 1980 re-forms.144

English common law at one timehad developed many other legal de-vices labeled “writs.” In theory, any ofthese could be “revived” by interpret-ing the Florida Constitution’s allwrits clause as a generalized refer-ence. In practice, however, such athing is unlikely to be necessary orwise. Most of the common-law writsdealt with problems fully covered bya variety of modern legal practicesand procedures, most of which are nolonger even considered to be“writs.”145 On the whole, it appearslikely that the Florida Constitution’sreference to “all writs” should be un-derstood as creating a single highlyspecialized writ available in the ex-traordinary circumstances contem-plated by Couse, with the possibleexception of the highly limited (andquestionable) form of error coramnobis that seems to remain today.

II. Exclusive JurisdictionThe constitution assigns the

Florida Supreme Court exclusiveoriginal jurisdiction in five catego-ries, most of which deal with regula-tion of Florida’s Bench and Bar. Theonly exception is in the case of legis-lative apportionment, which is a

unique concern. Jurisdiction is bothexclusive and original because mostof the topics embraced within thiscategory involve the Court’s admin-istrative powers over the state’s ju-diciary and lawyers. In the case ofapportionment, jurisdiction is pre-mised on the necessity of a final andswift legal determination thatFlorida’s electoral districts are con-stitutionally valid each time they arealtered.

A. Regulation of The Florida BarThe state constitution assigns the

Florida Supreme Court exclusive ju-risdiction over the discipline of per-sons admitted to practice law.146 As aresult, attorneys are the only profes-sion that cannot be regulatedthrough agencies created by the Leg-islature. They fall within the exclu-sive purview of the Court. Moreover,on June 7, 1949, the Florida SupremeCourt “integrated” The FloridaBar;147 that is, it designated it as anarm of the Court for purposes of regu-lating the practice of law. The Barmaintains that function to this day.148

Integration effectively means that noone can practice law in Florida with-out first becoming a member of TheFlorida Bar.

Regulation of attorneys operateson a number of levels. For one thing,the Court controls admissions to theBar and promulgates rules that regu-late the profession’s governance andthe procedures used in court. TheCourt’s most significant power is itsability to discipline lawyers for im-proprieties based on a detailed set ofethical rules governing attorney con-duct,149 with The Florida Bar servingas primary enforcer.

Allegations of unethical conductare investigated and, if meritorious,may be reviewed by Bar counsel orBar grievance committees. The mat-ter then may be examined by theBoard of Governors of The FloridaBar. Subject to the Board ofGovernor’s control, Bar counsel thenmay file a complaint with the FloridaSupreme Court, which initiates for-mal charges against the lawyer inquestion. At this point, the chief jus-tice usually appoints a “referee” toresolve factual issues and make rec-ommendations regarding discipline.Referees ordinarily are sitting countyor circuit judges, however, retired

9

judges also can be appointed.150

Procedures before the referee arehighly regulated by court rules andare conducted as adversary proceed-ings, like a trial. After hearing theevidence, the referee will issue a re-port setting down factual findingsand recommended discipline, if any.The report is then forwarded to theCourt. At this point, many attorneysdecline to challenge the referee’sfindings and recommendations,which the Court then summarily af-firms. If attorneys dispute the re-ports, their cases usually are ac-cepted for review as a “no request”(without oral argument), although inrare cases oral argument is granted.The Bar also can challenge a referee’sreport.

Factual findings contained in thereferee’s report are presumptivelycorrect and are accepted as true bythe Court unless such findings lacksupport in the evidence,151 or, statedanother way, unless clearly errone-ous..152

Proceedings before the FloridaSupreme Court are not trials de novoin which all matters might be revis-ited.153 However, the referee’s purelylegal conclusions (including disciplin-ary recommendations) are subject tobroader review,154 though they cometo the Court with a presumption ofcorrectness.155 In practice, the Courtwill depart from recommended disci-pline deemed too harsh or too lenient.However, the Court almost never ex-ceeds the discipline actually re-quested by Bar counsel.

Discipline can range from a repri-mand to disbarment. Nearly allforms of discipline result in a publicrecord of the attorney’s misconduct.Disbarred attorneys typically cannotbe readmitted to practice law unlessat least five years have passed andthey prove they have been rehabili-tated—a difficult thing to do in manycases.156 Occasionally, the Court dis-bars without leave to reapply, inwhich case readmission is possibleonly by petitioning the Court for per-mission.157

B. Admission to The Florida BarThe constitution also grants the

Florida Supreme Court exclusive ju-risdiction over admitting persons topractice law.158 To oversee Bar admis-sions, the Court has created the

Florida Board of Bar Examiners. Thisagency reviews all applications foradmission using detailed standardsincluded in the Rules of Court.159 Ev-ery Bar applicant must undergo arigorous background investigationconducted by the Bar Examiners,must successfully complete a two-dayexamination on legal knowledge, andmust pass a separate examination onlegal ethics.

If the background investigationreveals anything reflecting poorly onan applicant’s character or fitness,the Bar Examiners are also autho-rized to conduct a series of hearingsto resolve the matter. Any decisioncoming out of this process can betaken to the Court by petition for fur-ther review. The Court can then ac-cept, reject, or modify the recommen-dations of the Bar Examiners. Baradmission cases are usually confiden-tial, though a few are occasionallymade public and published in South-ern Second, often with the applicantidentified only by initials.160

C. Rules of CourtThe development and issuance of

all rules governing practice and pro-cedure before Florida Courts lieswithin the exclusive jurisdiction ofthe Florida Supreme Court.161 Devel-opment of rules has been delegatedto various committees of The FloridaBar, except local rules, which are de-veloped by the state’s lower courts,reviewed by the Local Rules Commit-tee, and submitted to the FloridaSupreme Court for approval.

Every four years these committeessubmit proposals for revisions, whichthe Court then accepts, rejects, ormodifies. This “quadrennial” revisionprocess is often supplemented in off-years by special proposals by thecommittees, petitions for revisionsfiled by Bar members, and the muchrarer sua sponte revisions issued bythe Court to meet some special need.Though it seldom happens, courtrules can be repealed by a two-thirdsvote in each house of the Legisla-ture.162 The lower courts cannot ig-nore or amend controlling rules.163

The Court’s rule-making authorityextends only to procedural law, notsubstantive law. Though the bound-ary separating the two is not entirelyprecise, the Court has said that “pro-cedural law” deals with the course,

form, manner, means, method, mode,order, process, or steps by which sub-stantive rights are enforced.164 “Sub-stantive law” creates, defines, andregulates rights. In other words, “pro-cedure” is the machinery of the judi-cial process while “substance” is theproduct reached.165

These distinctions are importantbecause they separate the rule-mak-ing authority of the Court from thelaw-making authority of the Legisla-ture. Thus, it is possible for the Leg-islature to enact a “procedural” stat-ute that can be superseded by courtrule166 just as it is possible for theCourt to enact a rule so substantivein nature that it violates theLegislature’s prerogative.167 Tusslesbetween the two branches of govern-ment have erupted in the past, mostnoticeably in the development of theFlorida Evidence Code. On occasion,the Court has even called for a “co-operative” effort with the Legislaturein eliminating problems betweenconflicting statutes and rules.168 TheCourt has also announced that it willmake every effort to harmonize ruleswith relevant statutes, on the theorythat legislative enactments embodythe popular will. However, the Courtlacks any authority to issue rulesgoverning administrative proceed-ings, which fall within thelegislature’s authority.169

It is worth noting that by promul-gating a rule, the Court does notvouch for its constitutionality. A courtrule could thus be challenged in afuture proceeding on any valid con-stitutional ground. This is becauserules are issued as an administrativefunction of the Court, not as an adju-dicatory function. For much the samereason, the act of promulgating a ruledoes not foreclose challenges that itcontains “substantive” aspects and tothat extent is invalid. Questions suchas these can only be decided whenaffected parties bring an actual con-troversy for resolution.

D. Judicial QualificationsThe next form of exclusive juris-

diction governs “judicial qualifica-tions,” which exists solely for the pur-pose of disciplining the state’s judgesand justices for improprieties. It isanalogous to Bar discipline, thoughaccomplished through a differentadministrative agency. Jurisdiction

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here rests on a constitutional provi-sion that specifies in considerabledetail how such cases are reviewed.170

Cases of this type are commenced atthe instance of the JQC, which is au-thorized to investigate alleged impro-priety by any judge or justice. Uponrecommendation of two-thirds of theJQC’s members, the Florida SupremeCourt is then vested with jurisdictionto consider the case.

Jurisdiction here is exclusive, how-ever, because the findings and pro-posals of the JQC are considered tobe only recommendations.171 TheJQC operates as an “arm of the court”much in the nature of a fact-findingreferee in a Bar discipline proceed-ing. The JQC’s recommendations arepersuasive but not conclusive,172 andthe Florida Supreme Court has some-times departed from recommendeddiscipline.173 Moreover, the JQC doesnot constitute a “court” in itself andthus, is not subject to the writ of pro-hibition.174 Discipline recommendedby the JQC will be imposed onlywhen supported by clear and con-vincing proof of the impropriety inquestion.175

The Court has held that judicialqualification proceedings are not inthe nature of a criminal prosecutionand thus are not subject to the con-stitutional restraints peculiar tocriminal law.176 The doctrines of resjudicata and double jeopardy do notapply177 and the JQC can, therefore,inquire into matters previously in-vestigated in other contexts. The con-stitution automatically disqualifiesthe sitting justices of the Florida Su-preme Court to hear a proceedingbrought against one of their ownnumber. Instead, a panel of speciallyappointed “Associate Justices” willhear the case.

E. Review of Legislative Appor-tionment

In every year ending in the nu-meral “2,” the Florida Legislature isrequired to reapportion the state’slegislative and congressional dis-tricts to reflect the latest UnitedStates Census. Reapportionmentmust be finalized before the fall’selections that same year, whichmight not be possible if lawsuits onthe question began in some lowercourt and wended through the appel-late system. Accordingly, the state

constitution has given the FloridaSupreme Court exclusive, original,and mandatory jurisdiction to revieweach decennial reapportionment planapproved by the Legislature.178

The Court’s authority in this re-gard is extraordinary. All questionsregarding validity of the reapportion-ment plan can be litigated to finalityin a single forum, for both trial andappellate purposes. Moreover, if theLegislature is unable to reapportionwithin certain time constraints, theCourt itself has authority to imposea reapportionment plan by order.179

Judicial apportionment, for example,was necessary in 1992 with respectto some of the state’s districts.180 Inthat instance, the Court was swayedby arguments of the United StatesJustice Department regarding thefederal Voting Rights Act.181 Thus,federal issues are an important con-cern here. It should be noted, how-ever, that the Florida SupremeCourt’s determination of validitydoes not necessarily bind the federalcourts.

III. ConclusionsThe Florida Supreme Court was

created in 1845 and held its first ses-sions the following year. Since thattime, a considerable body of customand precedent has come into exist-ence regarding the Court’s operationand jurisdiction. This body is notwidely known outside the Court, norhas there been much previous effort

Florida Supreme Court is one of thesuccess stories in the state’s morerecent efforts to modernize its consti-tution.

Endnotes1 In many instances, however, jurisdic-

tion is not exclusive. The lower courts wouldalso have jurisdiction to consider issuing oneof the writs, except that petitioners usuallyare forbidden to seek the same remedy fromanother court simply because they did not likethe last court’s decision.

2 E.g., Florida League of Cities v. Smith,607 So. 2d 397, 398, 400-01 (Fla. 1992).

3 E.g., Jones v. State, 591 So. 2d 911, 913(Fla. 1991) (modifying error coram nobis);Richardson v. State, 546 So. 2d 1037, 1039(Fla. 1989) (modifying error coram nobis).

4 In theory, modifications to “discretion”could be so drastic as to essentially constitutea change in jurisdiction. In practice, it is un-likely the Court would take any such drasticstep, which probably would invite efforts tocurb the Court’s actions by way of statute orconstitutional amendment.

5 Black’s Law Dictionary 961 (6th ed.1991).

6 See State ex rel. State Live Stock Sani-tary Bd. v. Graddick, 89 So. 361, 362 (Fla.1921).

7 Thus, the Florida Supreme Court pres-ently cannot issue a writ of mandamus to pri-vate individuals or businesses, as it some-times could in the past. See, e.g., State ex rel.Ranger Realty Co. v. Lummus, 149 So. 650(Fla. 1933).

8 Fla. Const. Art. V, §3(b)(8).9 Examples include sheriffs, clerks of the

circuit court, and property appraisers. SeeFla. Const. Art. VIII, §1(d).

10 See Fla. Const. Art. V, §3(b)(3).11 E.g., Moore v. Florida Parole & Proba-

tion Comm’n, 289 So. 2d 719 (Fla. 1974).12 Id. at 719-20.13 Waldrup v. Dugger, 562 So. 2d 687, 694

(Fla. 1990).14 Florida League of Cities v. Smith, 607

So. 2d 397, 399 (Fla. 1992).15 Id.16 E.g., Bishoff v. State ex rel. Tampa Wa-

terworks Co., 30 So. 808, 812 (Fla. 1901).17 E.g., McAlpin v. State ex rel. Avriett, 19

So. 2d 420, 421 (Fla. 1944).18 E.g., State ex rel. Fidelity & Casualty

Co. v. Atkinson, 149 So. 29, 30 (Fla. 1933).19 State ex rel. Bergin v. Dunne, 71 So. 2d

746, 749 (Fla. 1954).20 E.g., Gallie v. Wainwright, 362 So. 2d

936 (Fla. 1978).21 E.g., Dickinson v. Stone, 251 So. 2d 268

(Fla. 1971).22 State ex rel. Eichenbaum v. Cochran,

114 So. 2d 797, 800 (Fla. 1959).23 Florida League of Cities, 607 So. 2d at

401.24 Id.25 State ex rel. Bergin, 71 So. 2d at 749.26 See, e.g., State ex rel. Edwards v.

County Comm’rs of Sumter County, 22 Fla. 1,7 (1886).

27 E.g., Shevin ex rel. State v. Public Serv.Comm’n, 333 So. 2d 9, 12 (Fla. 1976); State exrel. Long v. Carey, 164 So. 199, 205 (Fla. 1935).

to compile information about routineoperations in one more or less com-prehensive collection. The presentarticle is an effort to fill this gap, pro-viding information to lawyers andlaypersons about their state’s high-est court.

On the whole, the review of customand precedent shows a Court that isoperating smoothly and fairly effi-ciently following the jurisdictionalreforms of 1980. There have been oc-casional cases that may be difficultto square with the Court’s limitedjurisdiction, but these have been rareand are largely confined to categoriesseldom entertained. The Court’sdocket is manageable, and thepresent staff structure enables thejustices to fulfill their various dutiesefficiently, while also disposing oftheir case assignments. Today, the

11

28 Hess v. Metropolitan Dade County, 467So. 2d 297, 298 (Fla. 1985). Contra Depart-ment of Health and Rehabilitative Servs. v.Hartsfield, 399 So. 2d 1019, 1020 (Fla. 1stDist. Ct. App. 1981).

29 The Court cited Fine v. Firestone, 448So. 2d 984 (Fla. 1984), which involved an al-leged defect in a constitutional amendmentthat would be put to voters. Fine did not men-tion the “no adequate remedy” requirement.However, it was clear that no other adequateremedy existed there: The right to a fair elec-tion was at stake, and a fair election wouldnot be possible if a defective constitutionalamendment was allowed to remain on theballot. Id. at 985. Moreover, there was prece-dent that the defects in the proposed amend-ment would be “cured” by the act of being ap-proved in the election, unfair though it maybe.

30 See Fla. Const. Art. V, §3.31 See Linning v. Duncan, 169 So. 2d 862,

866 (Fla. 1964) (citing Newport v. Culbreath,162 So. 340 (Fla. 1935)).

32 E.g., Pino v. District Court of Appeal,604 So. 2d 1232 (Fla. 1992).

33 Id.34 E.g., Caldwell v. Estate of McDowell,

507 So. 2d 607, 608 (Fla. 1987).35 State ex rel. Watkins v. Fernandez, 143

So. 638 (Fla. 1932).36 Id.; Martinez v. Martinez, 545 So. 2d

1338, 1339 (Fla. 1989).37 Martinez, 545 So. 2d at 1339 (citing

State ex rel. Pooser v. Wester, 170 So. 736, 737(Fla. 1936)).

38 Fla. Const. Art. V, §3(b)(8). For a dis-cussion of this limitation and its likely mean-ing, see supra text accompanying notes 7-10.Under earlier law, quo warranto sometimescould be used to test the validity of actionsdone pursuant to a franchise granted by thestate, including the right to incorporate. Thus,the writ sometimes could issue against a pri-vate concern. E.g., Davidson v. State, 20 Fla.784 (1884). The Florida Supreme Court nolonger has such authority. See Fla. Const. Art.V, §3(b)(8).

39 State ex rel. Gibbs v. Bloodworth, 184So. 1 (Fla. 1938).

40 Fla. Stat. §80.01 (1991).41 Id. §80.032.42 Id. §80.04.43 Martinez, 545 So. 2d at 1338.44 Id.45 State ex rel. Smith v. Jorandby, 498 So.

2d 948 (Fla. 1986).46 E.g., Id. at 950; Greenbaum v. Firestone,

455 So. 2d 368, 370 (Fla. 1984).47 English v. McCrary, 348 So. 2d 293, 296

(Fla. 1977).48 Id.49 Id. at 296-97; accord Sparkman v.

McClure, 498 So. 2d 892 (Fla. 1986).50 Fla. Const. Art. V, §3(b)(7).51 Moffit v. Willis, 459 So. 2d 1018, 1020

(Fla. 1984).52 For an example of this superseded form

of jurisdiction, see State ex rel. Vining v.Florida Real Estate Comm’n, 281 So. 2d 487(Fla. 1973) (prohibition issued against quasi-judicial proceedings of Florida Real EstateCommission).

53 State ex rel. Swearingen v. RailroadComm’rs, 84 So. 444 (1920).

54 See, e.g., Peltz v. District Court of Ap-

peal, 605 So. 2d 865 (Fla. 1992).55 See, e.g., Department of Agric. v.

Bonanno, 568 So. 2d 24 (Fla. 1990).56 Arthur J. England, Jr., et al., Florida

Appellate Practice Manual §2.23(a), at 57 (D& S/Butterworths 1992 Supp.).

57 Id.58 Crill v. State Rd. Dep’t, 117 So. 795 (Fla.

1928).59 English, 348 So. 2d at 297.60 E.g., State v. Donner, 500 So. 2d 532

(Fla. 1987); State v. Bloom, 497 So. 2d 2 (Fla.1986). But see Peacock v. Miller, 166 So. 212(Fla. 1936) (prohibition not proper where in-ferior court has jurisdiction but commits er-ror). The use of prohibition in theprosecutorial discretion cases following the1980 jurisdiction reforms apparently beganwith Bloom, which cited as authority Cleve-land v. State, 417 So. 2d 653 (Fla. 1982). How-ever, this is an obvious overextension of Cleve-land, which was an “express and directconflict” case holding only that a court couldnot interfere with a prosecutor’s discretion torefuse to allow a defendant to be placed in apretrial intervention program. Id. Clevelandhad nothing to do with prohibition. Neverthe-less, the “abuse of discretion” cases do gainsome support by analogy to the well estab-lished precedent that prohibition sometimesmay be used as a means of disqualifying bi-ased judges even though they clearly have ju-risdiction. E.g., Bundy v. Rudd, 366 So. 2d 440(Fla. 1978); State ex rel. Bank of Am. v. Rowe,118 So. 5 (Fla. 1928). Judicial disqualificationcomes much closer to being a question ofabuse of discretion than abuse of jurisdiction.

61 English, 348 So. 2d at 296.62 E.g., Sparkman, 498 So. 2d at 895.63 E.g., Joughin v. Parks, 143 So. 145 (Fla.

1932).64 Id.65 E.g., Donner, 500 So. 2d at 532; Bloom,

497 So. 2d at 2.66 English, 348 So. 2d at 297.67 E.g., Sparkman, 498 So. 2d at 892;

Curtis v. Albritton, 132 So. 677 (Fla. 1931).68 Sparkman, 498 So. 2d at 892.69 E.g., State ex rel. Placeres v. Parks, 163

So. 89 (Fla. 1935) (if mandamus is available,prohibition should be denied); State ex rel.Booth v. Byington, 168 So. 2d 164 (Fla. 1stDCA 1964) (if quo warranto is available, pro-hibition should be denied).

70 See, e.g., Waldrup v. Dugger, 562 So. 2d687 (Fla. 1990).

71 English, 348 So. 2d at 297.72 Wetherell v. Thursby, 129 So. 345 (Fla.

1930).73 English, 348 So. 2d at 293.74 Id. at 296.75 E.g., Bloom, 497 So. 2d at 3.76 American Heritage Dictionary 586 (2d

ed. 1985).77 There no longer is any absolute re-

quirement that the detained person bebrought to court, and this earlier practicerarely occurs in the Florida Supreme Courttoday.

78 Allison v. Baker, 11 So. 2d 578 (Fla.1943).

79 Sylvester v. Tindall, 18 So. 2d 892 (Fla.1944).

80 See State ex rel. Deeb v. Fabisinski, 152So. 207 (Fla. 1933). In ancient times, the writof habeas corpus was divided into many sub-

categories, most of which now are irrelevantor have been superseded by other devicessuch as the capias or bench warrant.

81 Fla. Const. Art. I, §9.82 Fla. Const. Art. I, §13. However, habeas

corpus to some extent is regulated by statute.See Fla. Stat. §§79.01-.12 (1991).

83 Rice v. Wainwright, 154 So. 2d 693 (Fla.1963).

84 Sellers v. Bridges, 15 So. 2d 293 (Fla.1943).

85 Thompson v. Wainwright, 328 So. 2d487 (Fla. 1st DCA 1976).

86 See Sullivan v. State, 49 So. 2d 794 (Fla.1951).

87 Carnley v. Cochran, 123 So. 2d 249 (Fla.1963), rev’d on other grounds, 369 U.S. 506(1962).

88 State ex rel. Davis v. Hardie, 146 So. 97(Fla. 1933).

89 Brown v. Watson, 156 So. 327 (Fla.1934).

90 Adams v. Culver, 111 So. 2d 665 (Fla.1959).

91 Waldrup, 562 So. 2d at 687.92 Compare Fitzpatrick v. Wainwright,

490 So. 2d 938 (Fla. 1986) (death penalty va-cated on habeas petition, and case remandedfor new proceedings), with Fitzpatrick v. State,527 So. 2d 809 (Fla. 1988) (death penalty ul-timately reduced to life imprisonment forsame defendant).

93 The Court itself sometimes overlooksthe fine distinctions that can be involved indetermining whether a petition genuinely ischallenging a restraint on liberty, not someother matter. See discussion of the case ofMichael Durocher infra text accompanyingnotes 133-136.

94 These petitions often are in the formof handwritten notes that do not meet theCourt’s usual filing requirements. However,the Court accepts all such “pro se” petitions ifthey fairly appear to be seeking some form ofrelief, sometimes even assigning volunteercounsel to assist in exceptional cases. TheCourt has held that even informal communi-cations can be sufficient to petition for habeascorpus. Crane v. Hayes, 253 So. 2d 435, 442(Fla. 1971).

95 E.g., In re Hansen, 162 So. 715 (Fla.1935).

96 E.g., Crane v. Hayes, 253 So. 2d 435(Fla. 1971); Porter v. Porter, 53 So. 546 (Fla.1910).

97 Fla. R. Crim. P. 3.850.98 372 U.S. 335 (1962). The problems

Gideon caused, as well as the Florida Su-preme Court’s response, are recounted in Royv. Wainwright, 151 So. 2d 825 (Fla. 1963).

99 Roy, 151 So. 2d at 827.100 State v. Bolyea, 520 So. 2d 562, 563 (Fla.

1988) (citing State v. Wooden, 246 So. 2d 755,756 (Fla. 1971)).

101 Haag v. State, 591 So. 2d 614, 616 (Fla.1992) (quoting Fla. Const. Art. I, §13).

102 Fla. Const. Art. V, §3(b)(9).103 Fla. Const. Art. V, §3(b)(7). For a dis-

cussion of the history underlying this provi-sion and the case law, see Robert T. Mann, TheScope of the All Writs Power, 10 Fla. St. U. L.Rev. 197 (1982).

104 Compare Fla. Const. Art. V, §3(b)(7)with Couse v. Canal Authority, 209 So. 2d 865,867 (Fla. 1968) (quoting Fla. Const. of 1885,Art. V (1957)).

continued...

12

105 E.g., State ex rel. Watson v. Lee, 8 So.2d 19, 21 (Fla. 1942).

106 209 So. 2d 865 (Fla. 1968).107 Couse, 209 So. 2d at 867 (quoting Fla.

R. App. P. 4.5(g)(1) (as amended)). Apparently,the new standard merely expanded jurisdic-tion. The Court still continued to issue ancil-lary writs in pending proceedings under itsall writs power. See Booth v. Wainwright, 300So. 2d 257, 258 (Fla. 1974).

108 State ex rel. Pettigrew v. Kirk, 243 So.2d 147, 149 (Fla. 1970).

109 See Id. The headnote says that prohi-bition was issued, though the text of the opin-ion is vague on this point. Id.

110 E.g., City of Tallahassee v. Mann, 411So. 2d 162, 163 (Fla. 1981) (all writs clausecited as basis of jurisdiction in granting pro-hibition). The misreference also was temptedby another fact: Both prohibition and “allwrits” are authorized by the same sentencein the constitution, though the two actuallyare distinct and subject to radically differentstandards of review. See Fla. Const. Art. V,§3(b)(7).

111 Monroe Educ. Ass’n v. Clerk, Dist. Ct.of Appeal, 299 So. 2d 1, 3 (Fla. 1974).

112 E.g., McCain v. Select Committee onImpeachment, 313 So. 2d 722, 722 (Fla. 1975).The McCain case involved an effort by a sit-ting justice of the Florida Supreme Court tostop impeachment proceedings against him.When he sought relief under the all writsclause, the Court rejected it on the groundsthat it failed to set forth “a claim within thejurisdiction and responsibility of the court.”Id. This statement, while vague, seemedmuch more limited than the sweeping state-ments the Court had made only a year ear-lier in 1974.

113 The Court only cited one case that hadnothing to do with the all writs clause and a1942 case that clearly had been overruled in1968. Shevin ex rel. State, 333 So. 2d 9, 12(Fla. 1976) (citing Wilson v. Sandstrom, 317So. 2d 732 (Fla. 1975)); State v. Lee, 8 So. 2d19 (Fla. 1942)).

114 Fla. R. App. P. 4.5(g)(1). The Rule’s lan-guage was even quoted two years later in anopinion apparently applying the pre-1968standard of review. Besoner v. Crawford, 357So. 2d 414, 415 (Fla. 1978).

115 Robert T. Mann, The Scope of the AllWrits Power, 10 Fla. St. U. L. Rev. 197, 212(1982).

116 E.g., Jones v. State, 591 So. 2d 911, 912,916 (Fla. 1991) (stay of pending executionbased on Court’s jurisdiction over judgmentsimposing sentence of death); The Florida Barv. Dobbs, 508 So. 2d 326, 327 (Fla. 1987) (writof injunction against unlicensed practice oflaw based on Court’s jurisdiction to regulatepractice of law).

117 Burnsed v. Seaboard Coastline R.R.,290 So. 2d 13, 16 (Fla. 1974).

118 Id.; St. Paul Title Ins. Corp. v. Davis,392 So. 2d 1304, 1304-05 (Fla. 1980) (all writsclause cannot confer jurisdiction over districtcourt PCA).

119 Florida Senate v. Graham, 412 So. 2d360, 361 (Fla. 1982).

120 Fla. Const. Art. III, §16(c).121 Alvord v. State, 459 So. 2d 316, 317-18

(Fla. 1984).122 Fla. Const. Art. V, §3(b)(1).123 Obviously, this could include such tra-

ditional ancillary concerns as issuance of atemporary injunction or the stay of lowercourt proceedings. See Mann, supra note 117at 200-02.

124 Fla. Const. Art. V, §3(b)(7).125 Accord Florida Senate, 412 So. 2d at

361 (citing both all writs clause and ultimatebasis of jurisdiction).

126 E.g., Alvord, 459 So. 2d at 316.127 Florida Senate, 412 So. 2d at 360; ac-

cord Mize v. County of Seminole, 229 So. 2d841 (Fla. 1969).

128 In re Order on Prosecution of CriminalAppeals, 561 So. 2d 1130 (Fla. 1990).

129 Id. at 1131.130 “Ultimate jurisdiction” potentially ex-

isted here on a number of bases, including theFlorida Supreme Court’s authority to reviewcases affecting a class of state or constitu-tional officers, the basis actually cited for ju-risdiction in the case. See Fla. Const. Art. V,§3(b)(3).

131 Durocher v. Singletary, No. 81,986 (Fla.Aug. 12, 1993).

132 Id. at 1.133 Waldrup, 562 So. 2d at 687.134 Accord Alvord, 459 So. 2d at 317-18.135 E.g., Richardson v. State, 546 So. 2d

1037, 1037 (Fla. 1989). Coram nobis is notmentioned in the constitution’s grant of ju-risdiction. See Fla. Const. Art. V, §3(b).

136 The name is a peculiar blending of En-glish and Latin. “Coram nobis” means “beforeus.” The writ exists to bring an error “beforeus” for review, i.e. before the court. Black’sLaw Dictionary 543 (6th ed. 1991).

137 Richardson, 546 So. 2d at 1037.138 Jones, 591 So. 2d at 915.139 Fla. R. Crim. P. 3.850(a).140 See Jones, 591 So. 2d at 915.141 This could be done simply by stating

that persons not in custody who are challeng-ing a prior conviction based on newly discov-ered evidence may proceed under Rule 3.850the same as a person in custody. There willbe a need for some procedure of this type, be-cause persons released from custody some-

times do find new evidence that could exon-erate them and clear their records. It hardlyseems fair to apply the liberalized Rule 3.850remedy to those in custody, while restrictingall others to the hidebound and quirky stan-dards that made error coram nobis virtuallyimpossible to obtain. See Id.

142 E.g., Kilgore v. Bird, 6 So. 2d 541 (Fla.1942).

143 Robinson v. State, 132 So. 2d 3, 5 (Fla.1961).

144 Allen v. McClamma, 500 So. 2d 146, 147(Fla. 1987).

145 For example, the writ of audita quer-ela now has been supplanted by the motionfor relief from judgment authorized in theRules of Civil Procedure. Black’s Law Dictio-nary 131 (6th ed. 1991).

146 Fla. Const. Art. V, §15.147 In re Florida State Bar Ass’n, 40 So. 2d

902 (Fla. 1949).148 Fla. R. Regulating The Fla. Bar 3-3.1.149 See generally Fla. R. Regulating The

Fla. Bar.150 Id. 3-7.5.151 The Florida Bar v. Bajoczky, 558 So. 2d

1022 (Fla. 1990).152 The Florida Bar v. McKenzie, 442 So.

2d 934 (Fla. 1983).153 The Florida Bar v. Hooper, 507 So. 2d

1078 (Fla. 1987).154 The Florida Bar v. Langston, 540 So.

2d 118 (Fla. 1989).155 The Florida Bar v. Poplack, 599 So. 2d

116 (Fla. 1992).156 The Florida Bar re Lawrence H. Hipsh,

Sr., 586 So. 2d 311 (Fla. 1991).157 Id.158 Fla. Const. Art. V, §15.159 See Fla. Sup. Ct. Bar Admiss. Rule.160 E.g., Florida Bd. of Bar Examiners, Re:

S.M.D., 619 So. 2d 297 (Fla. 1993).161 Haven Fed. Sav. & Loan Ass’n v. Kirian,

579 So. 2d 730, 732 (Fla. 1991).162 Fla. Const. Art. V, §2(a).163 State v. McCall, 301 So. 2d 774 (Fla.

1974).164 Haven Fed. Sav. & Loan Ass’n, 579 So.

2d at 732.165 Id.166 E.g., Id.167 E.g., State v. Furen, 118 So. 2d 6 (Fla.

1960).168 Leapai v. Milton, 595 So. 2d 12, 14 (Fla.

1992).169 Gator Freightways, Inc. v. Mayo, 328 So.

2d 444 (Fla. 1976); Bluesten v. Florida RealEstate Comm’n, 125 So. 2d 567 (Fla. 1960).

170 Fla. Const. Art. V, §12.171 State ex rel. Turner v. Earle, 295 So. 2d

609, 611 (Fla. 1974).172 Id.173 In re Inquiry Concerning a Judge, Wil-

liam A. Norris, Jr., 581 So. 2d 578, 579-80 (Fla.1991).

174 State ex rel. Turner, 295 So. 2d at 611.175 In re LaMotte, 341 So. 2d 513, 516 (Fla.

1977).176 In re Kelly, 238 So. 2d 565, 569-70 (Fla.

1970).177 Id. at 570.178 Fla. Const. Art. III, §16(c).179 Id.180 In re Constitutionality of Senate Joint

Resolution 2G, 601 So. 2d 543 (Fla. 1992).181 Id. at 546-47.

Ethics Questions?Call The Florida Bar’s

ETHICS HOTLINE:

1/800/235-8619

!

13

Justice Gerald Kogan, currentlythe Chief Justice of the Supreme Courtof Florida, has been a member of theSupreme Court since 1987. He re-ceived his J.D. from the University ofMiami.

Robert Craig Waters has been alaw clerk with the Supreme Court ofFlorida, from 1987 to present. He re-ceived his J.D. from the University ofFlorida in 1986 and an A.B., fromBrown University in 1979.

The authors express gratitude tothe following persons for reviewingdrafts of this article, providing infor-mation, or suggesting helpful revision:clerk of the Florida Supreme CourtSid White and Chief Deputy ClerkDebbie Casseaux; Florida SupremeCourt Librarian Joan Cannon andher staff; Florida Supreme Court mar-shal Wilson Barnes and his Adminis-trative Assistant, Linda Alexander; theOffice of State Court Administrator;

Nancy Shuford and Deborah Meyerof Justice Kogan’s staff; Jim Logue ofthe Florida Supreme Court staff; Su-san Turner, and the law firm of Hol-land & Knight. Special thanks to KarlSchultz of the court Administratorsstaff for providing statistical help onthe Florida Supreme Court’s docket.General research assistance was pro-vided by Gary Lipshutz and BenjaminPargman, students at the Universityof Florida College of Law.

Appellate Rules Liaison Committee ReportThe Appellate Rules Liaison Committee was created to keep our Section members informed of events tran-

spiring in the Appellate Court Rules Committee of The Florida Bar. In the following issues of The Record, wewill advise you of major action undertaken by that Committee, proposed additions or deletions to the FloridaRules of Appellate Procedure, and any other matters of general concern emanating from that Committee.

The following chart contains the most recent proposed rule changes. If you have comments or concernsabout these changes, please contact Judge Marguerite Davis, Chair of the Appellate Rules Liaison Committeeor Judge Gerald Cope, Chair of the Appellate Court Rules Committee. Our Committee also welcomes anysuggestions, comments, or concerns you may have about the appellate rules in general.

RULE VOTE TAKENON ACTION

9.800(a) 1-12-96 approved 35-5 Removes requirement for parallel cite to Florida Re-ports renumbers subdivisions

9.140(i) 6-21-96 approved 21-0 specifies that a court can grant “other appropriate re-[was sub. (j) on lief” as well as an evidentiary hearing in appeals of6/21/96] summary denial of motions for post-conviction relief.

9.130 9-6-96 amends rule title to include “specified final orders”approved 36-0

9.030(c)(1)(B) 9-6-96 9.030(c)(1)(B) amended to reflect that appellateapproved 38-0 jurisdiction of circuit courts is prescribed by general law

and not by Rule 9.130, as clarified in Blore v. Fierro,636 So.2d 1329 (Fla. 1994)

9.130(a)(1) 9-6-96 9.130(a)(1) amended to reflect that appellate jurisdic-(accompanies approved 38-0 tion of circuit courts is prescribed by general law andamendment to not by this rule, as clarified in Blore v. Fierro, 636 So.2d9.030(c)(1)(B) 1329 (Fla. 1994)

9.040(b) 1-24-97 determines appropriate court to review non-final ordersapproved 19-13 after change of venue

continued...

14

9.130(a)(7) 1-24-97 subdivision deleted because it is superseded by pro-approved 27-5 posed 9.040(b)(2)

9.020(h) 1-24-97 subdivision (h)(4), regarding rendition in district courtsapproved of appeal, created to correct problem noted in St. Paul

Fire & Marine Insurance Co. v. Indemnity Insurance Co.of North America, 675 So.2d 590 (Fla. 1996); text ofsubdivision (i) moved into main body of subdivision (h)to retain consistency; subdivision (i) deleted

9.210(a)(1) 1-24-97 deletes requirement that, if printed, briefs should mea-approved 31-0 sure 6" by 9"

9.210(a)(2) 1-24-97 deletes requirement that text in briefs shall be printedapproved 19-9 in type of no more than 10 characters per inch to facili-

tate use of modern proportional fonts and to better reflect current technology and practice

9.210(a)(3) 1-24-97 editorial change to clarify that briefs shall be boundapproved 31-0 along the left side or stapled in the upper left corner

9.800(i) 1-24-97 amends citation style for Florida Standard Juryapproved 32-0 Instructions (Criminal)

9.130(a)(3)(C)(iv) 6-27-97 repeals rule allowing appeals of non-final orders thatapproved 27-3 determine liability in favor of a party seeking affirma-

tive relief

9.130(a)(3)(C)(viii) 6-27-97 repeals rule allowing appeals of non-final orders thatapproved 21-15 determine, as a matter of law, a party is not entitled to

absolute or qualified immunity in a civil rights claimarising under federal law

9.130(a)(3)(C)(vi) 6-27-97 repeals rule allowing appeals of orders denying Work-approved 22-3 ers’ Compensation Immunity

9.210(b) Sent to Special Subcommittee proposal to add section requiring initial briefs to setforth the standard of review

9.330 Sent to Special Subcommittee proposes to revise rehearing rule to comport more withpresent practice

The Florida Bar’s General Meeting of Sections and Committees will be

held at the Tampa Airport Marriott, September 3-6, 1997. For a complete

meeting schedule and travel information, refer to The Florida Bar News.

15

Appellate Practice and Advocacy Section

1997-98 Committee Chairs/Vice-ChairsAdkins Award(To be appointed in Spring, 1998)

Administrative Appellate PracticeSteven E. Stark, ChairInternational Place, 17th Floor100 S.E. Second StreetMiami, FL 33131-1101(305) 789-9200Fax: (305) 789-9201

Amicus CuriaeJohn G. Crabtree, Chair1221 Brickell Ave.Miami, FL 33131(305) 579-0567Fax: (305) 579-0717

Appellate Certification LiaisonBenedict P. Kuehne, Chair100 S.E. 2nd Street, Suite 3550Miami, FL 33131-2154(305) 789-5989Fax: (305) 789-5987

Appellate Court LiaisonJack W. Shaw, Jr., Chair12 E. Bay StreetJacksonville, FL 32202-3427(904) 354-0624Fax: (904) 356-1559

Ernest J. Myers, Vice-Chair201 S. Orange Ave, Ste. 640Orlando, FL 32801(407) 422-1455Fax: (407) 422-1371

Appellate Mediation (Sub-committee)Teresa L. Mussetto, ChairFirst District Court of Appeal301 S. Martin L. King Jr. Blvd.Tallahassee, FL 32399-1850(850) 488-4965Fax: (850) 488-7989

Appellate Rules Committee LiaisonJudge Marguerite H. Davis, ChairFirst District Court of Appeal301 S. Martin L. King Jr. Blvd.Tallahassee, FL 32399-1850(850) 488-4965Fax: (850) 488-7989

Judge Gerald B. Cope, Jr., Vice ChairThird District Court of Appeal2001 S. W. 117th Ave.Miami, FL 33175-1716(305)229-3200Fax: (305)229-3206

Civil Appellate PracticeRobert H. Sturgess, Chair1301 Riverplace Blvd., #2601Jacksonville, FL 32207(904) 398-1192Fax: (904) 399-5461

James E. Tribble, Vice-Chair100 N. Biscayne Blvd., Suite 2402Miami, FL 33132-2306(305) 374-8171Fax: (305) 372-8038

Continuing Legal EducationJack J. Aiello, Jr., ChairP. O. Box 4587West Palm Beach, FL 33402-4587(407) 655-1980Fax: (407) 655-5677

Kathryn S. Pecko, Vice-Chair401 N. W. 2nd Ave., Suite 321SMiami, FL 33128(305) 377-5405Fax: (305) 377-5785

Criminal Appellate PracticeHarvey J. Sepler, ChairPublic Defender’s Office1320 N.W. 14th StreetMiami, FL 33125-1626(305) 545-1600Fax: (305) 545-1999

Kathleen M. Salyer, Vice-ChairU. S. Attorney’s Office99 N. E. 4th Street, 5th FloorMiami, FL 33132-2111(305) 530-7862Fax: (305) 536-7214

Federal PracticeFrederick H. Nelson, Chair1900 Summit Tower Blvd., #540Orlando, FL 32810-5919(407) 875-0077Fax: (407 )875-8008

LegislationGeorge A. Vaka, ChairP. O. Box 1438Tampa, FL 33601-1438(813) 228-7411Fax: (813) 229-8313

Long-Range Planning(Section Officers)Roy D. Wasson, ChairGables One Tower, Suite 4501320 S. Dixie HighwayMiami, FL 33146-2917(305) 666-5053Fax: (305) 666-2636

MembershipRaoul G. Cantero, III, Chair2601 S. Bayshore Drive, Suite 1600Miami, FL 33133-5419(305) 858-5555Fax: (305) 858-4777

Nominating(To be appointed in Spring, 1998)

ProgramsBonita L. Kneeland, ChairP.O. Box 1438Tampa, FL 33601-1438(813) 228-7411Fax: (813) 229-8313

PublicationsLucinda A. Hofmann, ChairP. O. Box 015441Miami, FL 33101-5441(305) 789-7729Fax: (305) 789-7799

CLE Committee RepresentativeAnthony C. Musto115 S. Andrews Avenue, Suite 423Ft. Lauderdale, FL 33301(954) 357-7600Fax: (954) 357-7641

Public Relations CommitteeRepresentativeRaoul G. Cantero, III2601 S. Bayshore Dr., Suite 1600Miami, FL 33133-5419(305) 858-5555Fax: 858-4777

Judicial Evaluation Program LiaisonJudge Jacqueline R. GriffinFifth District Court of Appeal300 S. Beach StreetDaytona Beach, FL 32114(904) 253-7909

Council of Sections RepresentativeLucinda A. HofmannP. O. Box 015441Miami, FL 33101-5441(305) 789-7729Fax: (305) 789-7799

16

Seeking Review in the Florida CircuitCourtsTable of Appellate Information

Compiled by James Edward Cheek, IIIWinderweedle, Haines, Ward & Woodman, P.A.,Orlando, Florida

First Judicial CircuitEscambia, Okaloosa, Santa Rosa & Walton Counties

ESCAMBIA COUNTY850/436-5149File original + 1 copy Notice of Appeal in County CourtFiling fee $50 (County), $75 (Circuit) — 2 checksNo Appellate DivisionJudge randomly assigned

OKALOOSA COUNTY850/689-5800File original Notice of Appeal in County CourtFiling fee $75.No Appellate DivisionJudge assigned by computer

SANTA ROSA COUNTY850/623-0135 X2101File original + 1 copy Notice of Appeal with County CourtFiling fee $50 (County), $75 (Circuit) — 1 check for $125.No Appellate DivisionJudge randomly assigned

WALTON COUNTY850/892-8115File original Notice of Appeal with County CourtFiling fee $75 (County), $120.50 (Circuit) — 2 checksNo Appellate DivisionAppeals heard by Judge Lindsey

Second Judicial CircuitFranklin, Gadsen, Jefferson, Leon, Liberty &Wakulla Counties

FRANKLIN COUNTY850/653-8861File original + 2 copies of Notice of Appeal, copy of OrderFiling fee $125 – 1 check, additional $4 for Clerk’s cer-tificateNo Appellate DivisionAppeals heard by Judge Davey

GADSEN COUNTY850/875-8621/8601File original Notice of Appeal, copy of Order in CountyCourtFiling fee $75 to County Clerk

No Appellate DivisionAppeals heard by Judge Sauls

JEFFERSON COUNTY850/342-0218File original + 1 copy Notice of Appeal with County CourtFiling fee $75.No Appellate DivisionAppeals heard by Judge Clark

LEON COUNTY850/488-7035File original + 2 copies Notice of Appeal, copy of OrderFiling fee $50 (County), $75 (Circuit) — 2 checksAppellate DivisionAssigned randomly among 3 Judges

LIBERTY COUNTY850/643-2215File original + 1 copy Notice of Appeal, copy of OrderFiling fee $75 (County), $50 (Circuit) — 1 check for $125.No Appellate DivisionAppeals heard by Judge Sauls

WAKULLA COUNTY850/926-3341File original Notice of Appeal, copy of OrderFiling fee $70 (County), $95 (Circuit) — 2 checksNo Appellate DivisionAppeals heard by Judge McClure

Third Judicial CircuitColumbia, Dixie, Hamilton, Lafayette, Madison,Suwannee & Taylor Counties

COLUMBIA COUNTY904/758-1041File original + 1 copy Notice of Appeal with County CourtFiling fee $125 (County), $60.50 (Circuit)No Appellate DivisionAssigned by case number (odd/even) to Judge

DIXIE COUNTY352/498-1200File 2 original Notice of Appeals with County CourtFiling fee $50 (County), $75 (Circuit) — 2 checksNo Appellate DivisionAppeals heard by Judge Kennon

HAMILTON COUNTY904/792-1288File original Notice of Appeal with County CourtFiling fee $75.

17

No Appellate DivisionAssigned by case number (odd/even) to Judge

LAFAYETTE COUNTY904/294-1600File original Notice of Appeal with County CourtFiling fee $50 (County)No Appellate DivisionAppeals heard by Judge Land

MADISON COUNTY850/973-1500File original Notice of Appeal with County CourtFiling fee $125.No Appellate DivisionAssigned by case number (even/odd) to Judge

SUWANNEE COUNTY904/364-3498File original Notice of Appeal with County CourtFiling fee $75 (County), $55.50 (Circuit) — 2 checksNo Appellate DivisionAssigned by case number (even Judge Kennon/odd JudgeBryan)

TAYLOR COUNTY904/838-3506File original Notice of Appeal, copy of Order with CountyCourtFiling fee $125.No Appellate DivisionAssigned by case number (even Judge Kennon/odd JudgeBean)

Fourth Judicial CircuitClay, Duval & Nassau Counties

CLAY COUNTY904/269-6317File original Notice of Appeal with County CourtFiling fee $125.No Appellate DivisionJudge randomly assigned

DUVAL COUNTY904/630-2031File original Notice of Appeal with Circuit CourtFiling fee $155.No Appellate DivisionJudge randomly assigned

NASSAU COUNTY904/321-5709File original Notice of Appeal with County CourtFiling fee $50 (County), $75 (Circuit) — 2 checksNo Appellate Division

Appeals heard by Judge Parsons

Fifth Judicial CircuitHernando, Lake, Marion, Citrus & Sumter Coun-ties

HERNANDO COUNTY352/754-4201File original Notice of Appeal with County CourtFiling fee $125, $6 for 1st page + $4.50 each additionalpage for recordingNo Appellate DivisionAppeals heard by a panel of 3 Judges

LAKE COUNTY352/742-4100File original + 2 copies Notice of Appeal, copy of Orderwith County CourtFiling fee $125.Appellate DivisionAppeals heard by a panel of 3 Judges

MARION COUNTY352/620-3904/3944File original Notice of Appeal, copy of Order with CountyCourtFiling fee $75.No Appellate DivisionJudge randomly assigned

CITRUS COUNTY352/793-9966File original Notice of Appeal with County CourtFiling fee $50 (County), $75 (Circuit) — 2 checksNo Appellate DivisionJudge randomly assigned

SUMTER COUNTY352/793-0211 X2533File original Notice of Appeal with County CourtFiling fee $50 (County), $75 (Circuit) — 2 checksNo Appellate DivisionJudge randomly assigned

Sixth Judicial CircuitPasco & Pinellas Counties

PASCO COUNTY352/521-4396File original Notice of Appeal, copy of Order with CountyCourtFiling fee $125.

Seeking Review

continued...

18

Appellate DivisionAppeals heard by Judge Cobb

PINELLAS COUNTY813/464-3267 X2481File original + 1 copy Notice of Appeal, copy of Order withCounty CourtFiling fee $80 + $57 for 1st page + $1 for each additionalpage — 1 checkAppellate DivisionRotate between 2 Judges

Seventh Judicial CircuitFlagler, Putnam, St. Johns & Volusia Counties

FLAGLER COUNTY904/437-7430File original Notice of Appeal, copy of Order with CountyCourtFiling fee $75 (County), $115 (Circuit)No Appellate DivisionAppeals heard by Judge Hammond

PUTNAM COUNTY904/329-0361File original Notice of Appeal with County CourtFiling fee $50 (County), $75 (Circuit) — 2 checksNo Appellate DivisionJudge randomly assigned

ST. JOHNS COUNTY904/823-2339File original Notice of Appeal with Appeals ClerkFiling fee $152.50.Appellate Division (Appeals Clerk Terry DeGrande)Judge randomly assigned

VOLUSIA COUNTY904/736-5915File original + 1 copy Notice of Appeal, copy of Order withCounty CourtFiling fee $50 (County), $85 (Circuit), $100 advance pay-ment for preparation of Record on AppealAppellate Division (Appeals Clerk Diana)Judge assigned by computer

Eighth Judicial CircuitAlachua, Baker, Bradford, Gilchrist, Levy &Union Counties

ALACHUA COUNTY352/374-3684File original Notice of Appeal with Appeals ClerkFiling fee $75.

Seeking Review

Appellate Division (Appeals Clerk Yvonne)Rotating panel of 3 Judges (rotates yearly)

BAKER COUNTY352/259-3121File original Notice of Appeal with County CourtFiling fee $125.No Appellate DivisionPanel of 3 Judges

BRADFORD COUNTY904/964-6280File original Notice of Appeal with County CourtFiling fee $125.No Appellate DivisionPanel of 3 Judges in Gainesville

GILCHRIST COUNTY352/463-3170File original Notice of Appeal with County CourtFiling fee $75.No Appellate DivisionPanel of Judges in Gainesville

LEVY COUNTY352/486-5100/5228File original Notice of Appeal with County CourtFiling fee $75.No Appellate DivisionPanel of Judges

UNION COUNTY904/496-3711File original + 1 copy Notice of Appeal, copy of Order withCircuit CourtFiling fee $85 (appeal fee), $81.50 (Circuit) — 1 check$166.50No Appellate DivisionPanel of Judges

Ninth Judicial CircuitOrange & Osceola Counties

ORANGE COUNTY407/836-2060File Notice of Appeal with County CourtFiling fees $52 (County), $75 (Circuit) — 2 checksAppellate DivisionRotating panel of 3 Judges

OSCEOLA COUNTY407/847-1300File Notice of Appeal with County CourtFiling fee $52 (County), $75 (Circuit) — 2 checksNo Appellate Division

19

All appeals heard by Judge Coleman

Tenth Judicial CircuitPolk, Hardee & Highlands Counties

POLK COUNTY941/534-4000File original Notice of Appeal, copy of Order with CountyCourtFiling fee $50 (County), $75 (Circuit) — 2 checksAppellate DivisionAppeals heard by Judge Davis

HARDEE COUNTY941/773-4174File original Notice of Appeal with County CourtFiling fee $50 (County), $75 (Circuit)No Appellate DivisionAppeals heard by Judge Davis

HIGHLANDS COUNTY941/385-2581/6564File original Notice of Appeal with County CourtFiling fee $50 (County), $75 (Circuit) — 2 checksNo Appellate DivisionAppeals heard by Judge Davis

Eleventh Judicial CircuitDade County

DADE COUNTY305/375-5775File original Notice of Appeal, copy of Order with CountyCourtFiling fee $50 for first page, $1 each additional page, +$1 to certify (County), $75 (Circuit) — 2 checksAppellate DivisionPanel of 3 Judges randomly assigned

Twelfth Judicial CircuitDesoto, Manatee & Sarasota Counties

DESOTO COUNTY941/993-4876File Notice of Appeal with County CourtFiling fee $120.50No Appellate DivisionAppeals heard by Judge Parker

MANATEE COUNTY941/749-1800File original + 1 copy Notice of Appeal with Appeal ClerkFiling fee $125.

Seeking Review

Appellate DivisionJudge randomly assigned

SARASOTA COUNTY941/362-4066File Notice of Appeal with County CourtFiling fee $100 (County), $75 (Circuit)Appellate Division (Appeals Clerk Alex)A-K Judge McDonald, L-Z Judge Rapkin

Thirteenth Judicial CircuitHillsborough County

HILLSBOROUGH COUNTY813/276-8100 X7237File Original Notice of Appeal, copy of Order with CountyCourtFiling fee $227.Appellate Division (Appeal Clerk Jean)Judge randomly assigned

Fourteenth Judicial CircuitBay, Calhoun, Gulf, Holmes, Jackson & Washing-ton Counties

BAY COUNTY904/747-5100File original Notice of Appeal with County CourtFiling fee $75.No Appellate DivisionJudge randomly assigned

CALHOUN COUNTY904/674-4545File original Notice of Appeal, copy of order with CountyCourtFiling fee $125.No Appellate DivisionAppeals heard by Judge Foster

GULF COUNTY904/229-6113File original Notice of Appeal with County CourtFiling fee $80.No Appellate DivisionAppeals heard by Judge Hess

HOLMES COUNTY904/547-1100File original Notice of Appeal, copy of order with CountyCourtFiling fee $125.

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Appellate DivisionAppeals heard by Judge Cole

JACKSON COUNTY904/482-9552File original Notice of Appeal with County CourtFiling fee $50 (County), $75 (Circuit) — 2 checksAppellate Division (Appeals Clerk Jane)Appeals heard by Judge Pitman

WASHINGTON COUNTY904/638-6285File original Notice of Appeal, copy of Order with CountyCourtFiling fee $50 (County), $75 (Circuit) — 2 checksNo Appellate DivisionAppeals heard by Judge Cole

Fifteenth Judicial CircuitPalm Beach County

PALM BEACH COUNTY561/355-2996File Notice of Appeal, copy of Order with County CourtFiling fee $80 (County), $85 (Circuit) — 2 checksAppellate DivisionPanel of 3 Judges, rotates monthly

Sixteenth Judicial CircuitMonroe County

MONROE COUNTY305/294-4641File original Notice of Appeal with County CourtFiling fee $50 (County), $75 (Circuit) — 2 checksAppellate DivisionJudge randomly assigned

Seventeenth Judicial CircuitBroward County

BROWARD COUNTY954/831-5799File original Notice of Appeal with County CourtFiling fee $50 (County), $75 (Circuit) — 2 checksAppellate DivisionJudge randomly assigned

Eighteenth Judicial CircuitBrevard & Seminole Counties

BREVARD COUNTY407/264-5256File original Notice of Appeal in County CourtFiling fee $125 to attention of Appeals Clerk

Seeking Review

Appellate DivisionAppeals handled by Judge Moxley, may reassign

SEMINOLE COUNTY407/323-4330File original Notice of Appeal with County CourtFiling fee $117.Appellate Division (Appeals Clerk Charlotte)Rotating panel of 3 Judges

Nineteenth Judicial CircuitIndian River, Martin, Okeechobee & St. LucieCounties

INDIAN RIVER COUNTY561/770-5185File original + 1 copy Notice of Appeal, copy of Order & 3sets of self addressed envelopes to all parties involvedFiling fee $125.Appellate DivisionRotating panel of 3 Judges

MARTIN COUNTY561/288-5736File original + 1 copy Notice of Appeal, copy of Order & 3sets of self addressed envelopes to all parties involvedFiling fee $75.Appellate Division (Appeals Clerk Kathy)Rotating panel of 3 Judges

OKEECHOBEE COUNTY941/467-1986File original Notice of Appeal, Clerk will send you an in-struction sheetFiling fee $125.Appellate Division (Appeals Clerk Carol)Rotating panel of 3 Judges

ST. LUCIE COUNTY561/462-6900File original + 1 copy Notice of Appeal, copy of Order & 3sets of self addressed envelopes to all parties involvedFiling fee $50 (County), $75 (Circuit) — 2 checksAppellate DivisionRotating panel of 3 Judges

Twentieth Judicial CircuitCharlotte, Collier, Glades, Hendry & Lee Coun-ties

CHARLOTTE COUNTY941/637-2115File original Notice of Appeal, copy of Order with County

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CourtFiling fee $175.Appellate divisionRotating panel of 3 Judges in Ft. Myers

COLLIER COUNTY941/732-2646File original Notice of Appeal and conformed copy withCounty CourtFiling fee $125 + $1 for each page + $1 to certifyAppellate division (Appeals Clerk Jan)Rotating panel of 3 Judges

GLADES COUNTY941/946-0113File original Notice of Appeal with County CourtFiling fee $125.

Seeking Review

No Appellate DivisionRotating panel of 3 Judges

HENDRY COUNTY941/675-5217File original + 1 copy Notice of Appeal, copy of Order withCounty CourtFiling fee $50 (County), $75 (Circuit) — 2 checksNo Appellate DivisionRotating panel of 3 Judges

LEE COUNTY941/335-2582File original Notice of Appeal with County CourtFiling fee $177 for 1st page, $1 for each additional pageAppellate DivisionRotating panel of 3 Judges

The Appellate Practice and Advocacy Section of the Florida Bar

Minutes of the Executive Council MeetingHeld on June 26, 1997, Walt Disney World Dolphin, Orlando, Florida

I. Call to OrderThe Executive Council Meeting

was called to order by Section ChairTom Elligett at 9:43 a.m.

II. Approval of MinutesThe minutes of the previous meet-

ing were approved.

III. Chair’s ReportThe Chair’s report was deferred.

1997 Edition of the Florida AppellatePractice Guide. If anyone has not yetreceived a copy of the Guide, pleasecontact Jackie Werndli.

C. CLE CommitteeJack Aiello, Chair, reported that

the Hot Topics seminar was not heldin November as scheduled becausethe new appellate rules, a fundamen-tal part of the seminar, had not yetbeen approved. He also reported thatthe Federal Appellate Issues seminardid not take place on March 21, 1997,as planned, but it is now planned forApril 17, 1998 in Orlando, and willfeature the same speakers and top-ics. The CLE Committee is consider-ing planning and budgeting to holdthis seminar in Atlanta in 1999.

He noted that the CertificationReview Course was held as plannedon February 14, 1997, and that thenext course will be held in Orlandoon February 13, 1998. The 1998 pro-gram co-chairs are Cindy Hofmannand Jennifer Carroll. Jack also notedthat several co-sponsored CLE semi-nars were given, which brought inadditional revenue to make up for thecancellations.

Tom Hall then discussed the jointventure with Stetson to present aNITA-type, intensive seminar forFlorida appellate practitioners. Tomsaid he got the idea from a programgiven years ago for new prosecutors.He said that Jan Majewski atStetson’s law school contacted Tomand let him know that Stetson wouldbe willing to co-sponsor this program.

They are proposing a 4-day appel-late practice workshop for approxi-mately 40 people based on the NITAmodel. Stetson facilities are availablefrom approximately July 21 - August15. The proposed joint venture agree-ment was attached to the meetingagenda.

Tom announced that the CLECommittee recommended that theExecutive Council approve going for-ward with the joint venture. He saidprofits would be split between theSection and Stetson. He noted that asimilar seminar given by the laborlaw section had yielded a profit of$3,700 each. He said that the CLECommittee had voted to aim theseminar at the recent graduate (0years practice) to 5 years of practicecategory.

IV. Committee ReportsA. Programs Committee

Tom made a short report for An-gela Flowers, Chair, who was delayeddue to airplane mechanical problems.Tom thanked those who (or whosefirms) had contributed money for thedessert reception, which was spon-sored solely by the Section for thefirst time. He also expressed histhanks to Bonnie Kneeland, who as-sisted greatly in raising the sponsor-ship money.

B. Publications CommitteeRoy Wasson, Chair, noted that the

latest issue of The Record had beenpublished and mailed, as had the

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Jan Majewski of Stetson LawSchool spoke about the school’s facili-ties and experience in giving similarseminars and entering similar jointventures. He passed around a factsheet and booklet about Stetson forCouncil members to review. He men-tioned that Stetson has four court-rooms wired for audio and video,other wired classrooms are also avail-able. There are six on-campus suitesto house out-of-state speakers. Jansaid that dorm rooms are availablefor participants at $40/night but thatin his experience, lawyers bring theirfamilies, stay at a nearby hotel, andmake a vacation out of it. Stetson hasa staff to handle registration and dodirect-mail marketing.

Marjorie Guardian Graham had aquestion about the tuition and whatit included. She noted that, in addi-tion to the tuition, the real cost ofattending included lost billings, ac-commodations, and meals. The ques-tion was also posed: Why would afirm send someone to this seminarrather than the ABA-sponsored semi-nar. Jan and other Council membersthen discussed the pro and cons ofthe various appellate seminars. Oneof the benefits of doing our own semi-nar is the ability to concentrate theexercises on Florida law. RaoulCantero noted that there is a “psy-chological barrier” in some firmsabout sending associates out of statefor a seminar. Others agreed.

Discussion was also had on thepossibility that not enough lawyerswill register, and how the Sectionwould handle any financial losses.Judge Webster inquired about thepossibility of a tuition price break forgovernment lawyers. Mention wasmade of sponsoring the seminarthrough the Bar’s CLE Committee,but Tom Hall noted that we wouldhave to give the Bar 80% of the profit.Discussion was then had on the$25.00 per person AdministrativeFee charged as an expense to the pro-gram — why it was needed and whopaid/benefitted from it, the Section,Stetson or both.

Jackie Werndli advised that theSection would need a budget item forthis seminar, which could be put inthe proposed budget in September.Jackie was fairly confident that theSection would not lose money, andthat with $38,000 in the fund, theSection could afford to take this mini-mal risk.

Tom Hall moved for approval ofthe joint venture; Kitty Pecko sec-onded the motion. The motion car-ried.

D.Membership CommitteeRaoul Cantero, Chair, reported

that, due to the efforts of the mem-bership committee last fall (describedin the Minutes to the January 1997meeting), 3,000 attorneys were iden-tified as potential members of the

Section. Letters were sent to theselawyers inviting them to join the Sec-tion. This effort resulted in approxi-mately 150 new members. As of June2, 1997, there are 964 Section mem-bers.E. Civil Appellate Practice Com-mittee

It was announced that since theCommittee Chair, Bob Sturgess,could not be here, Kim Staffordwould be conducting this afternoon’sCommittee meeting in his place.

V.Old BusinessA. Bylaw Amendments

1. Supreme Court SeatIt was moved to amend the by-

laws to make the Supreme Court seata voting seat. The motion carriedunanimously.

2. Amicus CommitteeThe motion to amend the by-

laws to add the Amicus Committee asa Section standing committee carriedunanimously.

B. Florida Bar Website ReportSection HomepageSteve Stark reported on the

Florida Bar’s Technical AdvisoryMeeting held at the Tampa AirportBar Offices on April 28, 1997. Hestated that the Bar had signed a con-tract with Andy Adkins who pub-lished the “Internet Lawyer.” Andyprovides to the Bar and its Sectionscontracts to use as models when ne-gotiating with vendors. Now the Barprovides a 600 word Webpage foreach Section; anything more thanthat is a Section responsibility. Andyadvised Section representatives thatthe cost of creating, developing, andimplementing a site can cost between$1,500 and $15,000.

Steve noted that the Environmen-tal and Land Use Law Section set upand maintains a webpage with theassistance of a University of Floridastudent. Payment to the student forinitial set up and the first 6 monthsof maintenance was approximately$2,500. Internet provider chargeswere $200 for set up and $50.00 amonth for maintenance.

Steve plans to give a full report onhis recommendations for the Appel-late Section at the September Coun-cil meeting. He noted that we wouldneed a service provider and someoneto set up the site. He said the effort

Amicus Curiae CommitteeSeeks Volunteers

The Executive Council of the Bar’s Appellate Practice and AdvocacySection officially established an Amicus Curiae Committee at the Junemeeting. The Committee will submit briefs on behalf of the Section for“cases that present procedurally significant but substantively neutralissues” in the appellate arena.

The Committee is presently comprised of a seven person panel whosefunction is to analyze and recommend whether a particular case is ap-propriate for amicus participation. The panel will forward its recom-mendations in favor of participation to the officers of the Section’s Ex-ecutive Council and, if approved, to the Florida Bar Board of Governors.If approved by the Council and the Board, the panel will select an at-torney who has indicated a willingness to submit an amicus brief onbehalf of the Section to participate in the appeal.

Any attorney interested in submitting an amicus brief on behalf ofthe Section should contact the Chair of the Amicus Curiae Committee,John G. Crabtree of MacQuarie & Crabtree, at (352) 351-8000.

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is 20% technology and 80% content.We have to decide what we want tomake available. He also said that theMichigan Bar Appellate Practice Sec-tion is the only other appellate sec-tion online right now.

Steve’s initial recommendationswere to continue the committee andget a liaison from other committees(i.e. CLE, Publications, Membership,Appellate Court Liaison) to workwith Steve to come up with contentand develop a time line. He also rec-ommended budgeting $2,000 to de-velop and $750/year for maintenance.He suggested we obtain templatesfrom the Bar, and that the Section asa group propose to The Florida Barthat it create its own server.

Steve moved to put money in thebudget and propose to the Bar thedevelopment of a server. ChrisKurzner seconded the motion. TonyMusto warned that if we put TheRecord and the Directory on theinternet there would be no incentiveto join the Section. He felt that $2,000at this time was too great of a com-mitment.

Tom Elligett suggested that wediscuss the budgeting aspects morefully at the September meeting whenwe would have a better idea of whatthe costs might be.

Tony moved to amend Steve’s motionto continue to explore the options.Steve accepted the amendment andsaid he would present the numbersfor the budget at the Septembermeeting. The amended motion car-ried unanimously. Steve asked thatanyone with any ideas on the subjectplease e-mail him.

C. Section Dues IncreaseThis issue was left on the table.

D.Directory/Appellate PracticeGuideTom thanked Tammy Scrudders

for her work on the latest edition ofthe Guide. Members were asked tocall Jackie if they had not yet re-ceived a copy.

E. OtherTom also mentioned that the co-

sponsorship with the General Prac-titioners Section at which SharonStedman, Tom Hall, and he had madepresentations, was very successful.

VI. New BusinessA. Committee Structure —

Appellate MediationCommitteeIt was announced that, while there

is a continuing interest in appellatemediation, at this point it is probablybetter handled in the Appellate CourtLiaison Committee.

B. Nomination/Election —Officers/Executive CouncilSteve Stark moved to accept the

slate as set forth in the Agenda. Themotion passed unanimously. The of-ficers for 1997-98 are: Chair-elect:Roy Wasson, Vice-chair: CindyHofmann, Secretary: Ben Kuehne,Treasurer: Hala Sandridge. Newmembers of the Executive Councilare: Raoul Cantero, Tony Musto,Kitty Pecko, Bob Sturgess, GeorgeVaka, John Crabtree.

Tom introduced a new Sectionmember, Professor Mike Finch fromStetson Law School. Professor Finchis interested in contributing to theSection by writing or editing asneeded.

C. Joint Dues with TrialLawyersChris Kurzner reported on the

successful joint dues arrangementbetween the Government Lawyersand Criminal Law Sections. We haveapproached the members of the TrialLawyers Section to see if they haveany interest in a joint dues arrange-ment. Nothing has yet been formal-ized. Our dues are presently $25.00;theirs are $35.00. There would be a$5.00 discount for persons who join

both sections. It has not been deter-mined which section would forfeit the$5.00, but the consensus seems to bethat is a small price to pay for 100-200 additional members.

Chris said that he was not goingto make a formal motion, but is go-ing to pursue it further. Ben notedthat anyone who knows an officer orExecutive Council member of theTrial Lawyers Section should discussthis matter with them, so when ap-proached by their own section theyare familiar with the pros and cons.Kitty Pecko suggested that we con-sider a similar arrangement with theCriminal Law Section.

D.Committee Space forSeptember General MeetingChris reported that we had re-

ceived a letter from the ExecutiveDirector of the Bar informing us of alack of space for committee meetingsat the September meeting to be heldin Tampa. Both Tom Elligett andGeorge Vaka have offered commit-tees conference room space at theiroffices. Committees can also meet in-formally in lobby space or by tele-phone. Let Jackie know if you needformal space at the September meet-ing.

VII. InformationalA. 4/30/96 Statement of

OperationsAttached to the meeting Agenda.

B. Internet Access to FloridaSupreme Court Oral Arguments

Tom reported that he had received

This newsletter is prepared and published bythe Appellate Practice and Advocacy Section of The Florida Bar.

Christopher L. Kurzner, Dallas, TX ............................................................................ ChairRoy D. Wasson, Miami ......................................................................................... Chair-electLucinda Ann Hofmann, Miami ........................................................................... Vice-ChairBenedict P. Kuehne, Miami ................................................................................... SecretaryHala A. Sandridge,Tampa .................................................................................... TreasurerAngela C. Flowers, Miami ........................................................................................... EditorJackie Werndli, Tallahassee .......................................................... Program AdministratorLynn M. Brady, Tallahassee ...................................................................................... Layout

Statements or expressions of opinion or comments appearing herein are those ofthe editor and contributors and not of The Florida Bar or the Section.

continued...

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a call from Sandy D’Alemberte’s of-fice on a pilot program to placeFlorida Supreme Court oral argu-ments on the internet (video and au-dio). Hala Sandridge and AngelaFlowers may report on this projectfurther in The Record.

C. Capital Collateral CounselThe invitation to apply to this

newly created position is attached tothe meeting Agenda. The deadline forapplying is July 1, 1997.

VIII. Final Remarks &Presentation of Awards —Outgoing ChairA. Executive Council Awards

Tom announced that this year, in-stead of plaques, members would berecognized with certificates and cop-ies of the book, Celebrating Florida.He then presented the following Sec-tion officers, members, and Councilmembers with certificates of appre-ciation:

Tony MustoChris KurznerHala SandridgeAngela FlowersBonnie KneelandJack ShawJack AielloJudge Kitty PeckoCindy HofmannRoy WassonRaoul CanteroTammy ScruddersJudge Marguerite Davis

B. James C. Adkins AwardTom presented this year’s James

C. Adkins Award to Judge John M.Scheb, who served for 17 years on theSecond District Court of Appeal andretired in 1992. Tom mentioned thatJudge Scheb’s professional courtesy,knowledge of those attorneys whopracticed before his court, and his ef-forts in organizing the American Innsof Court in Lakeland and Sarasotawere among his many attributes andcontributions to the profession.

Tom then presented our adminis-trator, Jackie Werndli, with a gift cer-tificate for Jumbo Sports as a tokenof our appreciation for all of her helpduring the past year.

IX. Program Outline &Closing Comments —Incoming Chair

The first order of business forChris was to present Tom with aplaque to commemorate his success-ful year as Chair of the Section. Christhen reminded everyone of the vari-ous committee meetings taking placein the afternoon, and of the SupremeCourt discussion and Dessert Recep-tion scheduled for later in the day.

X. AdjournmentThe meeting was adjourned at

11:15 a.m.

Lucinda A. HofmannSecretary

MEMBERS PRESENT:Jack AielloJudge Gerald Cope, Jr.Judge Marguerite H. DavisTom Elligett

Judge Richard FrankMarjorie Gadarian GrahamThomas D. HallJudge Charles Murray HarrisCindy HofmannBenedict P. KuehneChris KurznerTony MustoJudge Kathryn PeckoHarvey SeplerJack ShawSteve StarkSharon L. StedmanJudge Barry StoneJudge Gerald B. TjoflatGeorge A. VakaRoy D. WassonJudge Peter Webster

MEMBERS ABSENT:Angela FlowersBonnie KneelandScott D. MakarStuart C. MarkmanChristine M. NgHala Sandridge

OTHER ATTENDEES:David A. ActonRaoul CanteroJennifer CarrollJohn CrabtreeMichael FinchTracy GunnKeith HopeMary JuddJan MajewskiDebra SuttonJackie Werndli

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