Third District Court of Appeal
State of Florida
Opinion filed May 5, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1411
Lower Tribunal No. 19-167 AP
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City of Miami,
Petitioner/Cross-Respondent,
vs.
Miami-Dade County,
Respondent/Cross-Petitioner.
On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade
County, Appellate Division, Daryl E. Trawick, Lisa S. Walsh and Angélica D.
Zayas, Judges.
Victoria Méndez, City Attorney, and John A. Greco, Deputy City
Attorney, and Kerri L. McNulty, Senior Appellate Counsel, for
petitioner/cross-respondent.
Geraldine Bonzon-Keenan, Miami-Dade County Attorney, and James
Edwin Kirtley, Jr. and Dennis A. Kerbel, Assistant County Attorneys, for
respondent/cross-petitioner.
Before FERNANDEZ, C.J., and LOBREE and GORDO JJ.
PER CURIAM.
Denied.
FERNANDEZ, C.J., and LOBREE, J., concur.
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GORDO, J. (Dissenting)
If second-tier certiorari review does not lie to cure this procedurally
infirm ruling which seizes a Mayor’s privilege to exercise his veto power while
violating due process—it ought not exist. For the following reasons, I would
grant the petition.
FACTUAL AND PROCEDURAL BACKGROUND
The City of Miami seeks second-tier certiorari review of a circuit court
appellate decision which granted Miami-Dade County’s petition for writ of
certiorari finding in the first instance the Mayor of the City of Miami engaged
in prejudicial ex parte communications and quashing the exercise of his veto,
despite finding competent substantial evidence in the record supporting the
exercise of his veto.
In 2017, Miami-Dade County initiated an administrative process to
rehabilitate the Coconut Grove Playhouse. As the Playhouse was
designated a historic site by the City of Miami Historic and Environmental
Preservation Board (HEPB), the County was required to obtain a historic
preservation permit, known as a certificate of appropriateness, from the
HEPB.
In April 2017, the HEPB conditionally approved the County’s
application for a certificate of appropriateness but required the County to
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return to the HEPB for final approval before proceeding with the
rehabilitation. Two City of Miami residents objected and appealed the
HEPB’s decision to the Miami City Commission. The City Commission
granted the appeal and denied approval of the County’s application. The
County then filed a petition for writ of certiorari to the circuit court. In
December 2018, the circuit court granted the County’s petition and quashed
the Commission’s decision denying the certificate of appropriateness. The
HEPB’s approval of the County’s application for a certificate of
appropriateness was reinstated with its original conditions for final approval.
When the County applied for a final certificate of approval, however, it
was denied by the HEPB. The County appealed the HEPB’s denial to the
City Commission, which held a quasi-judicial public hearing in May 2019. At
the end of the hearing, the City Commission granted the County’s appeal
and approved the application. On May 17, 2019, the Mayor of the City of
Miami vetoed the City Commission’s decision and issued a statement
detailing the reasons for his veto. At the next City Commission meeting, the
veto was placed before the Commission, but the effort to override the veto
failed to obtain the required supermajority vote.
The County filed a petition for writ of certiorari to the circuit court,
arguing the Mayor’s veto was not based on competent substantial evidence
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and that its due process rights were violated because the Mayor had
engaged in ex parte communications. In support, the County attached five
unsolicited emails that were allegedly sent to the Mayor’s email address
during the ten-day veto period, which the County had obtained through a
public records request after the mayoral veto and after the City Commission
meetings ended. The City filed a motion to dismiss the petition, arguing the
circuit court lacked jurisdiction to review the Mayor’s veto as he was merely
exercising an executive function. The City separately filed a response to the
petition, which argued in part that the circuit court lacked jurisdiction to
review any emails purportedly sent to the Mayor as they were not addressed
at any of the hearings before the HEPB or the City Commission, and were,
therefore, not a part of the record. The City argued the proper remedy for
the County to address these emails, under Jennings v. Dade County,
589
So. 2d 1337 (Fla. 3d DCA 1991), was pursuit of a declaratory action to prove,
following an evidentiary hearing, that a prejudicial ex parte communication
occurred.
The circuit court dismissed the petition, finding the Mayor’s veto was
not a quasi-judicial action. The County petitioned this Court for second-tier
certiorari review. A prior panel of this Court quashed the circuit court’s
opinion, finding that because the Mayor’s veto was inextricably intertwined
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with the quasi-judicial proceedings, the circuit court had jurisdiction to review
the County’s petition and, therefore, departed from the essential
requirements of the law by dismissing the petition. See Miami-Dade Cnty.
v. City of Miami,
315 So. 3d 115, 126 (Fla. 3d DCA 2020). The Court
quashed the opinion of the circuit court and remanded for the circuit court to
address the County’s petition.
On remand, the circuit court quashed the Mayor’s veto, finding in the
first instance that although the Mayor’s exercise of his veto was supported
by competent, substantial evidence, the Mayor had engaged in prejudicial
ex parte communications during the veto period which violated the County’s
due process rights. The City subsequently filed a motion for rehearing and
clarification, arguing the circuit court misapplied Jennings and could not
determine whether a due process violation had occurred absent an
evidentiary hearing via a separate lawsuit or providing a hearing to allow the
Mayor an opportunity to rebut any presumption of prejudice. The County
filed a response, and the circuit court denied the motion. This petition for
second-tier certiorari review followed.
DISCUSSION
It is well established that “a district court should exercise its discretion to
grant review only when the lower tribunal has violated a clearly established
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principle of law resulting in a miscarriage of justice.” Custer Med. Center v.
United Auto. Ins. Co.,
62 So. 3d 1086, 1092 (Fla. 2010) (citing Allstate Ins.
Co. v. Kaklamanos,
843 So. 2d 885, 889 (Fla. 2003)). A circuit court’s
decision departs from the essential requirements of the law where the circuit
court fails to afford procedural due process or fails to apply the correct law.
See Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles,
87 So. 3d 712,
723 (Fla. 2012).
I. Violation of Clearly Established Principle of Law
The circuit court’s decision violated fundamental and well-settled
principles of appellate practice by reviewing evidence in the first instance
that was not included in the record before the lower tribunal. See Rosenberg
v. Rosenberg,
511 So. 2d 593, 595 n.3 (Fla. 3d DCA 1987) (“Appellate
review is limited to the record as made before the trial court at the time of
the entry of a final judgment or orders complained of.”); Vichich v. Dep’t of
Highway Safety & Motor Vehicles,
799 So. 2d 1069, 1073 (Fla. 2d DCA
2001) (“The circuit court in [its appellate capacity] performs a ‘review’; it does
not sit as a trial court to consider new evidence or make additional findings.”).
In appeals of administrative decisions “the record shall include only materials
furnished to and reviewed by the lower tribunal in advance of the
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administrative action to be reviewed by the court.” Fla. R. App. P.
9.190(c)(1). Further:
An appeal has never been an evidentiary
proceeding; it is a proceeding to review a judgment
or order of a lower tribunal based upon the record
made before the lower tribunal. An appellate court
will not consider evidence that was not presented to
the lower tribunal because the function of the
appellate court is to determine whether the lower
tribunal committed error based on the issues and
evidence before it.
Hillsborough Cnty. Bd. of Cnty. Com’rs v. Pub. Employees Relations Com’n,
424 So. 2d 132, 134 (Fla. 1st DCA 1982).
Here, the County’s decision to attach the purported emails the circuit
court relied on to quash the Mayor’s veto to its petition for certiorari clearly
violated this principle. The emails were not a part of the record before the
City Commission and were never considered during the quasi-judicial
proceeding. The County only acquired the emails via a public records
request after the Mayor’s veto and subsequent City Commission meeting to
override the veto occurred. The County contends the ex parte
communications are part of the record because they were before the Mayor
in advance of his veto decision. The lower tribunal here, however, was the
City Commission not the Mayor. Additionally, at no point were the emails
authenticated or proven to be seen or received by the Mayor himself. The
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circuit court thus violated a fundamental principle of appellate practice by
considering evidence not presented to the lower tribunal.
The County further argues that because the Mayor was acting as a
quasi-judicial decision maker, the emails themselves are de facto proof he
improperly engaged in ex parte communications and thus, violated its due
process rights.
First, “[t]he failure to apply a controlling legal decision is a classic
departure from the essential requirements of the law.” State v. Jones,
283
So. 3d 1259, 1266–67 (Fla. 2d DCA 2019). Here, the circuit court failed to
apply the correct law because Jennings requires an evidentiary proceeding
to enable the Mayor to rebut any presumption of prejudice arising from the
presumed ex parte communications, which would ultimately allow the circuit
court to determine whether the communication was prejudicial to the County.
See Jennings,
589 So. 2d at 1339 (“We hold that upon proof that a quasi-
judicial officer received an ex parte contact, a presumption arises . . . that
the contact was prejudicial. The aggrieved party will be entitled to a new and
complete hearing before the commission unless the defendant proves that
the communication was not, in fact, prejudicial.”).
Under Jennings, this Court held “the allegation of a prejudicial ex parte
communication in a quasi-judicial proceeding . . . will enable a party to
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maintain an original equitable cause of action to establish its claim.”
Id. at
1341–42. Here, the circuit court did not require the County to maintain an
original cause of action or hold an evidentiary hearing and without hesitation
accepted the proffered emails as evidence in the first instance the ex parte
communications occurred, determining prejudice existed simply because the
emails were sent. This is directly contrary to Jennings, which requires a
moving party to prove an ex parte communication occurred and a defending
party be given an opportunity for rebuttal before the court makes its ultimate
determination of whether the ex parte communication prejudiced the
aggrieved party.
Id. at 1342 (“Upon such proof [of an ex parte
communication], prejudice shall be presumed. The burden will then shift to
the respondents to rebut the presumption that prejudice occurred to the
claimant. Should the respondents produce enough evidence to dispel the
presumption, then it will become the duty of the trial judge to determine the
claim in light of all the evidence in the case.”).
The plain language of Jennings clearly mandates the presumption of
prejudice is rebuttable, NOT, as the circuit court’s order renders it,
irrefutable. The circuit court only applied Jennings in part, finding the
communications were presumed to be prejudicial but ignoring the
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requirement that a defending party have an opportunity to rebut that
presumption.
Second, while receipt of a public records request can be used as proof
that a communication was sent, it cannot be used as prima facie evidence
that prejudicial ex parte communications occurred where the County did not
establish the Mayor himself even opened or responded to the emails.
Third, the circuit court acting in its appellate capacity is bound by the
Florida Rules of Appellate Procedure. Fla. R. App. P. 9.010 (“These rules,
cited as “Florida Rules of Appellate Procedure” . . . . shall govern all
proceedings commenced on or after that date in the supreme court, the
district courts of appeal, and the circuit courts in the exercise of the
jurisdiction described by rule 9.030(c).”). Florida Rule of Appellate
Procedure 9.030(c)(1) provides that “[t]he circuit courts shall review, by
appeal: (A) final orders of lower tribunals as provided by general law; (B)
nonfinal orders of lower tribunals as provided by general law; and (C)
administrative action if provided by general law.” Under rule 9.040(c) “[i]f a
party seeks an improper remedy, the cause shall be treated as if the proper
remedy had been sought.” It was well within the circuit court’s jurisdiction
acting in its appellate capacity to transfer the case to the circuit trial court for
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an evidentiary hearing that complied with Jennings rather than itself
engaging in a fact-finding analysis in the first instance.
II. Violation of Due Process Resulting in a Miscarriage of Justice
The circuit court’s departure from the essential requirements of law is
a miscarriage of justice so “sufficiently egregious,” it unmistakably warrants
second-tier certiorari review. Nader, 87 So. 3d at 723. The circuit court held
the proffered ex parte communications between the Mayor and interested
members of the public prejudiced the County and that there was no evidence
in the record to rebut the presumption of prejudice. But, as discussed above,
the circuit court gave the Mayor no process or opportunity to present any
evidence to rebut this presumption.
In Jennings, this Court stated that “[t]he occurrence of [an ex parte
communication] in a quasi-judicial proceeding does not mandate automatic
reversal.” Jennings,
589 So. 2d at 1341. The circuit court’s decision
operates as an automatic quashal of the Mayor’s veto right derived from his
elected position and the City’s governing charter. The circuit court found the
County’s due process rights were violated without the requisite record
evidence and without affording the Mayor an opportunity to rebut the
presumption of prejudice — a clear violation of his due process rights under
Jennings. This essentially rendered any established presumption of
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prejudice to the County irrefutable, as opposed to rebuttable. This is again
directly contrary to Jennings.
While “the quality of due process required in a quasi-judicial hearing is
not the same as that to which a party to full judicial hearing is entitled,” the
Mayor was still entitled to an opportunity to be heard.
Id. at 1340; see also
Keys Citizens for Responsible Gov’t, Inc. v. Florida Keys Aqueduct Auth.,
795 So. 2d 940, 948 (Fla. 2001) (“Procedural due process requires both fair
notice and a real opportunity to be heard.”). Here, depriving the Mayor’s due
process rights operates as more than a deprivation of an individual’s right.
When issuing the veto, the Mayor was acting in his official capacity as a
representative of his constituents, the people of the City of Miami. Depriving
the Mayor of due process as to the exercise of his veto in this instance
essentially acts as a deprivation of the due process rights of those he
represents.
Additionally, “[a]n important factor to consider when determining
whether the circuit court’s error amounts to a ‘miscarriage of justice’ is the
adverse precedential effect the error might have on subsequent cases.”
Dep’t of Highway Safety & Motor Vehicles v. Hofer,
5 So. 3d 766, 772 (Fla.
2d DCA 2009) (citing Dep’t of Highway Safety & Motor Vehicles v. Alliston,
813 So. 3d 141, 145 (Fla. 2d 2002)). “Where a circuit court’s decision fails
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to apply the correct law and establishes ‘principles of general application
binding in subsequent cases,’ certiorari review is warranted.” State, Dep’t of
Highway Safety & Motor Vehicles, Bureau of Admin. Reviews v. Fernandez,
114 So. 3d 266, 272 (Fla. 3d DCA 2013) (quoting Hofer, 5 So. 3d at 772). If
the circuit court’s decision remains, quasi-judicial decision makers who are
alleged have to received unsolicited ex parte communications for the first
time on appeal will have their decisions quashed without any opportunity to
demonstrate: (1) actual receipt of the unsolicited communication, and (2) an
opportunity to refute the alleged unsolicited communication bore no impact
on their decision; even when a court finds the decision was supported by
competent substantial evidence.
A “district court’s exercise of its discretionary certiorari jurisdiction
should ‘depend on the court’s assessment of the gravity of the error and the
adequacy of other relief.’” Custer,
62 So. 3d at 1092 (quoting Haines City
Cmty. Dev. v. Heggs,
658 So. 2d 523, 531 n.14 (Fla. 1995)). The circuit
court’s seizure of the Mayor’s veto power without affording due process is
as grave an error as there can be in our democratic system rooted in
separation of powers. While second-tier certiorari is extraordinary and
discretionary, today the majority brushes under the proverbial rug the wrongs
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it was specifically designed to correct in an unelaborated denial. I
respectfully dissent.
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