Writs and Certiorari

Interlocutory Orders of County Courts - Certiorari Review

"Cat out of the Bag" stuff - evidence you cannot take back - non-final orders. (1) whether the county court orders departed from the essential requirements of law (2) whether there is an adequate remedy on appeal.

Two Types of Certiorari Proceedings

(1) CIRCUIT COURT Review of Final administrative action not directly appealable to the FSC or a DCA (2) DCA - non-final orders and review of decisions by circuit courts in their appellate capacities.

Standard of Review for Common law Certiorari and Statutory Certiorari

(1) Whether procedural due process was accorded. (2) Whether the essential requirements of law observed (3) whether the administrative findings and judgment are supported by substantial competent evidence.

Standard of Review for DCA Certiorari

(1) Whether procedural due process was afforded (2) whether the decision of the Circuit Court departed from the essential requirements of law. (apply the law correctly)

DCA Certiorari Review (2) Types

(1) reviewing decision of the Circuit Court Appellate Division involving administrative action (2) reviewing a decision of the Circuit Court of Appellate Division rendered on appeal from a judgement of a county court.

Use of writ before DC to review final decisions of circuit court in appellate capacity

1. CC ruling on petition for writ of prohibition directed to denial of motion to disqualify county court judge 2. CC ruling on petition for writ of mandamus seeking to challenge order of parole commission 3. review of stay order by a CC, in its appellate review of a county court judgment

Example of Proper Use of Mandamus - Judicial Officers

1. Direct the court clerk to remove improperly recorded instrument from the public records 2. "" to forward a valid notice of appeal to the DCA 3. Compel the public defender to evaluate an appeal

Example of Proper Use of Mandamus - Government Officials and Agencies

1. Issuance of building permit 2. Compliance with zoning ordinances by city or county 3. Prison officials directed to release defendant on posting of valid appearance bond

5 Extraordinary Writs

1. Prohibition 2. Mandamus 3. Habeas Corpus 4. Quo Warranto 5. All Writs Power writs

Elements of Mandamus

1. Respondent must have a clear legal duty to perform a particular at 2. respondent must have failed or refused to perform the act - must have been a demand to act unless act is required by law, an intentional default, or a demand would be fruitless 3. the act must be ministerial, not a discretionary one 4. the petitioner must have a clear legal right to compel performance 5. petitioner must have no other adequate or complete remedy

Proper Uses of Habeas Corpus

1. challenge improper denial of bail, or refusal to reduce unreasonable bail before trial 2. challenge incarceration under an invalid contempt order 3. seek relief based on ineffectiveness of appellate counsel 4. seek leave to file belated criminal appeal 5. seek leave to file belated appeal in termination of parental rights case 6. challenge existence of PC for detention 7. Challenge constitutionality of statute under which accused is charged 8. Challenge the state's wrongful detention of a child 9. review of unlawful custody of a child 10. attack validity of the determination of a prisoner's effective parole release 11 Determine whether improperly withheld gain time would entitle prisoner to immediate release

Examples of Proper Uses of Mandamus - Judges and Courts

1. compel the exercise of jurisdiction 2. require a preliminary hearing in a criminal case 3. require the judge to rule on a pending matter 4. compel enforcement of a foreign child custody decree 5. Reinstatement of an improperly dismissed appeal

Examples of Certiorari Cases

1. orders denying or granting a motion to disqualify counsel 2. Cat out of the bag discovery 3. order compelling production of documents by nonparty 4. not permitted to review overly broad discovery orders 5. orders permitting irrelevant discovery 6. orders compelling production of documents and information claimed to be protected under the qualified journalist's privilege. 7. orders granting post-trial interviews of jurors 8. orders compelling paternity tests

Elements of Habeas Corpus

1. petitioner must establish that they are detained in custody 2. must demonstrate that there is probable cause to believe that the detention is without lawful authority

Elements of Prohibition

1. respondent court or tribunal is acting or threatening to act outside or in excess of its jurisdiction 2. writ seeks to prevent a threatened action, not to correct or undo it 3. the petitioner would suffer an impeding present injury if the writ is not issued 4. the petitioner has no other appropriate or adequate legal remedy.

EX: Continued - Orders denying a motion to dismiss where orders were based on:

1. statutory right not to be subject to litigation 2. plaintiff's failure to follow statutory pre-suit procedures 3. contractual or legal obligation which requires case to proceed administratively, instead of suit 4. Orders denying a motion for SJ based on: (1) sovereign immunity and (2) P's failure to follow medical malpractice presuit screen procedures 5. NOT permitted to review denials of a motion to intervene (these are final orders = direct appeal available)

Example of Proper Use of Mandamus - Private Corporations and Corporate Officers

1. transfer officer directed to transfer stock to the purchaser at execution sale 2. Custodian of corporate books directed to make them available for inspection by shareholders

Whether there has been a departure from the essential requirements of law

An appellate court should exercise its discretion to issue the writ only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice - Thus, they are not concerned with the mere existence of legal error as much as with the seriousness of the error. Thus, a decision made according to the form of the law and the rules prescribed for rendering it, although it may be erroneous in its conclusion as applied to the facts, is not an illegal or irregular act or proceeding remedial by certiorari.

Writ of Certiorari

Certiorari jurisdiction is granted to the Circuit Courts and the District Court of Appeals. The writ issues to review an order of a lower court or agency departure from the essential requirements of law.

Habeas Corpus

Commands the respondent to justify its detention of a person

Prohibition

Commands the respondent to refrain from a threatened action that is outside its jurisdiction or in excess of its judicial powers

Circuit Court Certiorari

Common law and Statutory law Common law certiorari of Quasi-Judicial Action is available where no direct appellate proceedings have been provided by law and is available to review quasi-judicial but not legislative decisions. QJ includes requests for hearings, notice, and opportunity to be heard. Statutory Certiorari - "Circuit courts have the power of direct review of administrative action prescribed by general law."

Mandamus

Compels the respondent to perform a duty imposed on the respondent by law

Examples of Improper Use of Mandamus

Discretionary act - compel city commission to extend hours for serving alcohol Respondent lacks authority or ability to perform act Unreasonable delay in seeking relief following refusal to act

Limits of Mandamus

Enforce a right not establish a right prevent the threat of future harm directed to single acts - not compel ongoing compliance so as to require the court to exercise continuous supervisory jurisdiction enforce public rights and private rights - WILL NOT lie to enforce private contracts DCA and SC will not entertain these which require fact finding

Limitations

FSC cannot issue these to a private party or to a local governmental officer jurisdiction of DCA has been construed to lie only when there is a compelling reason for invoking such jurisdiction over that of the Circuit Court.

Burden of Proof for a Writ of Certiorari

Generally, the petitioner must demonstrate that the challenged order departs from the essential requirements of law, and that unless relief is granted he will suffer an injury for which he will have no adequate remedy by appeal.

All Writs Power

Issued to protect the court's complete exercise of jurisdiction

Limitations of Habeas Corpus

NOT employed as a substitute for a direct appeal to correct trial errors not used for seeking post-conviction relief

Elements of Quo Warranto

Petitioner must show: 1. respondent purports to hold an office or exercise a right or franchise that derives from the state 2. the respondent has no legal authority to do so 3. the petitioner has standing to seek the writ

Review of Prohibition

SC - issues these only to courts Preventive NOT corrective - not issued to reverse an order that is already entered or when the challenged proceedings have been completed. MAYBE - prevent enforcement of orders that have already been entered in excess of jurisdiction - NOT erroneous exercise of jurisdiction if seeking in one court CANNOT seek same relief by prohibition in a different court

Improper Use of Habeas Corpus

Substitute for Direct appeal to relitigate issues that were or could have been raised on direct appeal challenge imposition of a fine without incarceration challenge determination of prisoner's presumptive parole release date

Quo Warranto

Tests the respondent's right to hold an office or franchise, or to exercise a right or privilege, that derives from the state

Whether the petitioner has suffered an injury for which he will have no adequate remedy by appeal

These are jurisdictional, they must be considered by the appellate court before it turns to the question whether the challenged order departs from the essential requirements of law

Interlocutory Orders DCA Certiorari

This is used when reviewing interlocutory orders of the circuit court trial division. (1) whether the circuit court's order departed from the essential requirements of law (2) whether there is an adequate remedy on appeal

Improper Use of Prohibition

Venue Issues Workers' Compensation Immunity SOL defense in a civil action Exclusion of Press from judicial proceedings denial of motion to dismiss for failure to prosecute

Proper Use of Prohibition

enforcing procedural bar to jurisdiction - appellate court attempts to entertain an untimely appeal (prevent a circuit court from reinstating a plaintiff's cause of action 11 months after it was dismissed with prejudice) enforcing criminal defenses based on constitutional bars Disqualification of a judge preventing violations of separation of powers enforcing statutory jurisdiction restrictions Child custody and visitation

Extraordinary Writs

it is discretionary, like a writ but unlike an appeal - not a judicial review process. they are original proceedings in which the issuing court is requested to enjoin or compel acts of courts or others purporting to exercise authority. They are aimed either at conduct which exceeds the respondent's authority or at the respondent's failure to perform a legal duty.

Limitation on SC

may issue writs of prohibition only to courts may issue writs of mandamus and quo warranto only to state officers and agencies DCA and Circuit Courts are not limited