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Article Excerpt
So you receive the decision in the mail, and the only laudable thing about the opinion is that one was written. You scour the opinion for some rule of law, some fact that the panel overlooked. You find none. You then review the opinion again, this time trying to identify some basis for conflict with another district court of appeal. You come up empty. Once again, the panel outsmarted you. The opinion pretermits any possible avenue for further review. But suddenly a grin creeps over your face, and you sit there looking like the Grinch just before Christmas. This case, of course, presents an issue of great public importance!
The Florida Supreme Court possesses discretionary jurisdiction over cases that "pass upon a question certified to be of great public importance. (1) But what questions are of "great public importance"? The answer is elusive.
Before you draft that motion for certification, you may want to consider your chances of having such a question certified. Discerning a court's reasons for certifying a question as one of great public importance is not easy. Most opinions do not discuss the reasoning behind the certification; much less do they discuss their reasons for denying it. Some cases, however, do offer a glimpse into the reasoning process. This article discusses some of the major reasons courts have articulated for certifying a question of great public importance. It is designed not as a scientific survey, but as a means to help lawyers better estimate whether their cases present certifiable questions.
One apparent requirement for certification is that the answer to the question will benefit more parties than simply the present litigants. (2) A mere conviction that the Florida Supreme Court should hear the case will not suffice. (3) As one judge heatedly put it, "It will simply not do to say that an issue is of `great public importance' just because, for reasons which may be worthy but are not reflected in the constitution, it is thought that the Supreme Court should hear the case. The end does not justify the means even in questions of appellate review. (4) Other judges have chastised a majority opinion for certifying unimportant issues: "If the majority members of this court are interested in revising [the statute], then they should contact their legislative representatives rather than send a bogus issue to the Florida Supreme Court." (5) Still other judges have argued that some issues are too important for certification and should be left to the legislature. (6)
It also seems self-evident that an issue of "great public importance" must mean importance throughout the state, not just in a single geographic area. (7) Courts of appeal can always hear or rehear cases en banc that are of "exceptional importance." It would seem, therefore, that issues which arguably may be of "great public importance," but nevertheless are limited in their reach to the jurisdiction of a particular appellate district, are more appropriate for en banc consideration by that district court than for certification to the Florida Supreme Court.
One thing is clear, however: Under the rule as amended in 1980, the issue need not be of great public interest, but only of great public importance. (8) The distinction is deceptively crucial. The rule formerly allowed review of questions certified to be of "great public interest," but was changed in 1980 out of recognition that some legal issues may have "great public importance" but may not be sufficiently known to generate "great public interest. (9)
Important Issues with Far-reaching Consequences
One common reason for certification is that the question involved may have far-reaching consequences. This, of course, begs the question of what issues have "far-reaching consequences." In some cases, the consequences are quite obvious. For example, in Smith v. State, 497 So. 2d 910 (Fla. 3d DCA 1986), the issue was whether the trial court's standard instruction concerning the burden of proof on the insanity defense, which the Supreme Court subsequently held reversible error, constituted fundamental error. The court of appeal certified the question because of the "far-reaching possible consequences" of a holding that would expose many previously final criminal convictions to collateral attack. (10)
Other examples offer further guidance. In one case, the court certified the question because the issue could "potentially affect[] thousands of mortgages in the state." (11) Another court, in certifying a question involving a county's challenge to the constitutionality of a statute, "[r]ecogniz[ed] the impact of Florida's Growth Management Act upon county governments and the state." (12) Yet another "recognize[d] the ever increasing need for new school facilities caused by the rapid development in this state and the budgetary problems faced by school boards throughout the state...." (13) Other cases present similar specific questions with important statewide consequences. (14)
Some courts are more vague in certifying questions on this ground, stating that they do so because the court could "foresee the potentially broad ramifications of this issue...." (15) Exactly what issues have far reaching consequences, however, can be a matter of debate. (16)
Cases of First Impression
Another popular basis for certification is that the case presents an issue of first impression. The Florida Supreme Court has recognized that the certification function of the district courts of appeal "is particularly applicable to decisions ... of first impression...." (17) Despite this statement, certification of a decision because it is one of first impression can be controversial. At least one judge has objected to certification on this basis, arguing that the court "should not and, indeed, may not pass the buck to the Supreme Court merely because a particular case is difficult or one of first impression." (18) Thus, that a case presents an issue of first impression in this state would not in itself seem to establish a question of great public importance. One can think of many esoteric questions, of no particular relevance in other cases, that no Florida court has decided.
Some cases base the decision to certify solely on this ground. (19) Others do not expressly certify on this ground, but note that the case presents an issue of first impression, and later certify the question with no stated reason, thus implying that at least a tacit basis for the certification was that the issue was one of first impression. (20) Cases certifying on this ground may also articulate other bases for...
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