“Pass Through” Jurisdiction to the Florida Supreme Court

Taking a case “all the way to the supreme court” usually means having to wait for an intermediate court to decide your appeal, which can result in a lengthy delay.

But not always.

Rule 9.125 of the Florida Appellate Rules provides an exception to the judicial “chain of command” that otherwise almost always requires that an appeal be heard and ruled upon by a District Court of Appeal, before there is even the possibility of review by the state supreme court. This method of getting to the high court has been referred to as its “pass through” jurisdiction. 3299 N. Federal Highway, Inc. v. Board of County Com’rs of Broward County, 646 So.2d 215 n.2 (Fla. 4th DCA 1994).

Under the rule, a party may file a “suggestion” to the DCA, within ten days of the filing of the notice of Appeal in the trial court, or the DCA can simply “certify” the case on its own motion. While the short 10-day deadline might otherwise prove a trap for the unwary, the scant case law does not appear to contain any precedent specifically holding the “suggestion” procedure to be “jurisdictional” in nature in the same way that a notice of appeal is, meaning that it is at least theoretically possible for a DCA to extend the deadline, or consider a late-filed suggestion. And even if the DCA were to deny a motion to extend the deadline, or were to strike a late-filed suggestion, the court could still certify the case “through” to the supreme court on its own motion.

There are two grounds for the DCA to certify the case to the supreme court under the rule. The appeal may be passed through to the high court because the issues pending in the district court are of great public importance, or have a great effect on the proper administration of justice throughout the state. The rule is written in the disjunctive, so one or the other should suffice. That said, in the relatively rare situations where the rule applies, query whether a party seeking certification could not state both grounds? So doing certainly should not harm the chance of certification, and at least theoretically should strengthen the argument in favor of supreme court review.

Note that filing a suggestion does not toll or otherwise affect the timeline for the DCA proceedings. In fact, the DCA does not even have to rule on the suggestion or otherwise acknowledge that it’s been filed.

Counsel for the suggesting party must include a certificate that, in his or her “reasoned and studied professional judgment,” good grounds for the suggestion exist; an opposing party may file a response, but only has five days in which to do so. Certification may be proper where pending cases will “be subject to great uncertainty throughout the state.” See, State v. Adkins, 71 So.3d 184, 185 (Fla. 2d DCA 2011)(certifying question). Another recognized ground is where the determination of the District Court of Appeal “is most unlikely to be the final one.” See, Florida Dept. of Agr. and Consumer Services v. Haire, 832 So.2d 778, 781 (Fla. 4thDCA 2002)(certifying question).

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