1. Writ of Mandamus.
If a lower tribunal judge or other official is required by law to perform a duty and refuses or fails to perform it, a party can file a petition for writ of mandamus. An appellate court may issue a writ of mandamus to force the lower tribunal, or another government officer, to perform an official duty. The requirements for a writ of mandamus are:(2) The lower tribunal judge or other government officer must have a clear legal, ministerial duty to perform the action; and
(3) The petitioner must have no other adequate legal remedy.
For example, an appellate court may issue a writ of mandamus to require a clerk of a lower tribunal to accept a particular document for filing if the clerk is required to accept it, but has refused to accept it. An appellate court may issue a writ of mandamus to require a city to produce for inspection and copying, public records which the petitioner has requested and the city has refused to produce. An appellate court may also issue a writ of mandamus to require a lower tribunal to hold a hearing within a certain amount of time. But an appellate court cannot use the writ to tell the lower tribunal how to decide the case because that would be forcing the official to use his discretion in a certain way.
2. Writ of Prohibition.
Prohibition is a writ used to stop a lower tribunal from doing something that it does not have jurisdiction to do. In other words, it is used to stop a lower tribunal from doing something unlawful or improper. District courts of appeal can issue writs of prohibition to lower courts or state agencies. The Florida Supreme Court, on the other hand, can issue writs of prohibition to lower courts, but not to state agencies.The petition for writ of prohibition must be filed before the lower tribunal takes the action that the petitioner wants to prevent. An appellate court cannot grant prohibition to undo something that already has been done. It can only grant prohibition to prevent something that has not been done yet. In addition, the petitioner must show (1) there are no disputed facts and (2) the lower tribunal has no jurisdiction to do the thing the petitioner is trying to prevent.
If the appellate court issues an order to show cause why relief should not be granted in a prohibition proceeding, it stays the proceedings below. However, an order merely directing the respondent to file a response to the petition in a prohibition proceeding generally does not stay the lower tribunal proceedings. A stay puts all of the lower tribunal proceedings on hold until the appellate court makes a decision. See Chapter 11 of this Handbook (stays).
3. Writ of Certiorari.
Certiorari, also called “cert,” lets an appellate court review a non-final order of the lower tribunal that departs from the essential requirements of law when there is no other means of appeal. It allows the appellate court to decide whether the lower tribunal is handling the proceedings in a regular way and according to the law. Certiorari gives the appellate court the power to reach down and stop a miscarriage of justice where no other remedy exists. Unlike the district courts of appeal, the Florida Supreme Court does not have jurisdiction to grant writs of common law certiorari. To get a writ of certiorari, a petitioner must show:(2) The error will cause the petitioner irreparable harm throughout the remainder of the proceedings. The irreparable harm must be more than the time and expense of an unnecessary trial. An example of irreparable harm is an order violating a party’s constitutional rights that cannot be fixed by an appeal at the end of a case. Such an order might be a broad “gag order” preventing the plaintiffs and their attorneys from discussing their case with the media with no showing that the gag order was necessary to protect the fairness of the proceedings. Another example is an order allowing temporary visitation by a grandmother over the objection of a mother, and setting a future hearing to determine permanent visitation rights. This type of order would violate the mother’s constitutional right to privacy. A later determination could not change the violation that already would have taken place.
(3) There is no adequate remedy by appeal from a final judgment. This is another aspect of irreparable harm. If the error is something that the appellate court can fix in an appeal at the end of the case, the appellate court will not grant a writ of certiorari because there is no irreparable harm. For example, a denial of a trial by jury when the petitioner is entitled to a jury trial does not cause irreparable harm that cannot be fixed on appeal. This is because an appellate court can order a new trial following an appeal at the end of the case.
In addition, with very few exceptions, certiorari will not be granted to review the denial of a motion to dismiss. This is because an appeal at the end of the case is an adequate remedy.
If a party petitions for a writ of certiorari and the appellate court denies it without an opinion, that does not end the entire case. The rest of the case continues in the lower tribunal. On a final note, party who plans to file a certiorari petition with the appellate court will often also file an emergency motion to stay in the lower tribunal, asking it to stop or “stay” the challenged order during the certiorari proceeding. As discussed in Chapter 11 of this Handbook on stays, if the trial court denies the motion, the party can then ask the appellate court to issue the stay. See Florida Rule of Appellate Procedure 9.310(a)&(f).
