RULE 9.100. ORIGINAL PROCEEDINGS

(a) Applicability. This rule applies to those proceedings that
invoke the jurisdiction of the courts described in rules 9.030(a)(3),
(b)(2), (b)(3), (c)(2), and (c)(3) for the issuance of writs of mandamus,
prohibition, quo warranto, certiorari, and habeas corpus, and all
writs necessary to the complete exercise of the courts’ jurisdiction;
and for review of nonfinal administrative action.

(b) Commencement; Parties. The original jurisdiction of the
court must be invoked by filing a petition with the clerk of the court
having jurisdiction. The parties to the proceeding will be as follows:

(1) If the petition seeks review of an order entered by a
lower tribunal, all parties to the proceeding in the lower tribunal
who are not named as petitioners will be named as respondents.

(2) If the original jurisdiction of the court is invoked to
enforce a private right, the proceedings will not be brought on the
relation of the state.

(3) The following officials must not be named as
respondents to a petition, but a copy of the petition must be served
on the official who issued the order that is the subject of the
petition:

(A) judges of lower tribunals must not be named
as respondents to petitions for certiorari;

(B) individual members of agencies, boards, and
commissions of local governments must not be named as
respondents to petitions for review of quasi-judicial action; and
(C) officers presiding over administrative
proceedings, such as hearing officers and administrative law
judges, must not be named as respondents to petitions for review of
nonfinal agency action.

(c) Petitions for Certiorari; Review of Nonfinal Agency
Action; Review of Prisoner Disciplinary Action. The following
must be filed within 30 days of rendition of the order to be reviewed:

(1) a petition for certiorari;

(2) a petition to review quasi-judicial action of agencies,
boards, and commissions of local government, which action is not
directly appealable under any other provision of general law but
may be subject to review by certiorari;

(3) a petition to review nonfinal agency action under
the Administrative Procedure Act; or

(4) a petition challenging an order of the Department of
Corrections entered in prisoner disciplinary proceedings.

(d) Orders Excluding or Granting Access to Press or
Public.

(1) A petition to review an order excluding the press or
public from, or granting the press or public access to, any
proceeding, any part of a proceeding, or any records of the judicial
branch, must be filed in the court as soon as practicable following
rendition of the order to be reviewed, if written, or announcement of
the order to be reviewed, if oral, but no later than 30 days after
rendition of the order. A copy of the petition must be furnished to
the person (or chairperson of the collegial administrative agency)
issuing the order, the parties to the proceeding, and any affected
non-parties, as defined in Florida Rule of General Practice and
Judicial Administration 2.420.

(2) The court must immediately consider the petition to
determine whether a stay of proceedings in the lower tribunal or the
order under review is appropriate and, on its own motion or that of
any party, the court may order a stay on such conditions as may be
appropriate. Any motion to stay an order granting access to a
proceeding, any part of a proceeding, or any records of the judicial
branch made under this subdivision must include a signed
certification by the movant that the motion is made in good faith
and is supported by a sound factual and legal basis. Pending the
court’s ruling on the motion to stay, the clerk of the court and the
lower tribunal must treat as confidential those proceedings or those
records of the judicial branch that are the subject of the motion to
stay.

(3) Review of orders under this subdivision must be
expedited.

(e) Petitions for Writs of Mandamus and Prohibition
Directed to a Judge or Lower Tribunal. When a petition for a writ
of mandamus or prohibition seeks a writ directed to a judge or
lower tribunal, the following procedures apply:

(1) Caption. The name of the judge or lower tribunal
must be omitted from the caption. The caption must bear the name
of the petitioner and other parties to the proceeding in the lower
tribunal who are not petitioners must be named in the caption as
respondents.

(2) Parties. The judge or the lower tribunal is a formal
party to the petition for mandamus or prohibition and must be
named as such in the body of the petition (but not in the caption).
The petition must be served on all parties, including any judge or
lower tribunal who is a formal party to the petition.

(3) Response. Following the issuance of an order
pursuant to subdivision (h), the responsibility for responding to a
petition is that of the litigant opposing the relief requested in the
petition. Unless otherwise specifically ordered, the judge or lower
tribunal has no obligation to file a response. The judge or lower
tribunal retains the discretion to file a separate response should the
judge or lower tribunal choose to do so. The absence of a separate
response by the judge or lower tribunal will not be deemed to admit
the allegations of the petition.

(f) Review Proceedings in Circuit Court.

(1) Applicability. The following additional requirements
apply to those proceedings that invoke the jurisdiction of the circuit
court described in rules 9.030(c)(2) and (c)(3) to the extent that the
petition involves review of judicial or quasi-judicial action.

(2) Caption. The caption must contain a statement that
the petition is filed pursuant to this subdivision.

(3) Duties of the Clerk of the Circuit Court. When a
petition prescribed by this subdivision is filed, the clerk of the
circuit court must forthwith transmit the petition to the
administrative judge of the appellate division, or other appellate
judge or judges as prescribed by administrative order, for a
determination as to whether an order to show cause should be
issued.

(4) Default. The clerk of the circuit court will not enter
a default in a proceeding where a petition has been filed pursuant
to this subdivision.

(g) Petition. The petition must be accompanied by any
required filing fee except as provided in rule 9.430 for proceedings
by indigents. The caption must contain the name of the court and
the name and designation of all parties on each side. The petition
must not exceed 13,000 words if computer-generated or 50 pages if
handwritten or typewritten and must contain:

(1) the basis for invoking the jurisdiction of the court;

(2) the facts on which the petitioner relies;

(3) the nature of the relief sought; and

(4) argument in support of the petition and appropriate
citations of authority.
If the petition seeks an order directed to a lower tribunal, the
petition must be accompanied by an appendix as prescribed by rule
9.220, and the petition shall contain references to the appropriate
pages of the supporting appendix.

(h) Order to Show Cause. If the petition demonstrates a
preliminary basis for relief, a departure from the essential
requirements of law that will cause material injury for which there
is no adequate remedy by appeal, or that review of final
administrative action would not provide an adequate remedy, the
court may issue an order either directing the respondent to show
cause, within the time set by the court, why relief should not be
granted or directing the respondent to otherwise file, within the
time set by the court, a response to the petition. In prohibition
proceedings, the issuance of an order directing the respondent to
show cause will stay further proceedings in the lower tribunal.

(i) Record. A record must not be transmitted to the court
unless ordered.

(j) Response. Within the time set by the court, the
respondent may serve a response, which must not exceed 13,000
words if computer-generated or 50 pages if handwritten or
typewritten and which must include argument in support of the
response, appropriate citations of authority, and references to the
appropriate pages of the supporting appendices.

(k) Reply. Within 30 days thereafter or such other time set
by the court, the petitioner may serve a reply, which must not
exceed 4,000 words if computer-generated or 15 pages if
handwritten or typewritten, and supplemental appendix.

Committee Notes

1977 Amendment. This rule replaces former rule 4.5, except
that the procedures applicable to supreme court review of decisions
of the district courts of appeal on writs of constitutional certiorari
are set forth in rule 9.120; and supreme court direct review of
administrative action on writs of certiorari is governed by rule
9.100. This rule governs proceedings invoking the supreme court’s
jurisdiction to review an interlocutory order passing on a matter
where, on final judgment, a direct appeal would lie in the supreme
court. The procedures set forth in this rule implement the supreme
court’s decision in Burnsed v. Seaboard Coastline R.R., 290 So. 2d
13 (Fla. 1974), that such interlocutory review rests solely within its
discretionary certiorari jurisdiction under article V, section 3(b)(3),
Florida Constitution, and that its jurisdiction would be exercised
only when, on the peculiar circumstances of a particular case, the
public interest required it. This rule abolishes the wasteful current
practice in such cases of following the procedures governing
appeals, with the supreme court treating such appeals as petitions
for the writ of certiorari. This rule requires that these cases be
prosecuted as petitions for the writ of certiorari.

This rule also provides the procedures necessary to implement
the Administrative Procedure Act, section 120.68(1), Florida
Statutes (Supp. 1976), which provides for judicial review of non-
final agency action “if review of the final agency decision would not
provide an adequate remedy.” It was the opinion of the advisory
committee that such a right of review is guaranteed by the statute
and is not dependent on a court rule, because article V, section
4(b)(2), Florida Constitution provides for legislative grants of
jurisdiction to the district courts to review administrative action
without regard to the finality of that action. The advisory committee
was also of the view that the right of review guaranteed by the
statute is no broader than the generally available common law writ
of certiorari, although the statutory remedy would prevent resort to
an extraordinary writ.

Subdivisions (b) and (c) set forth the procedure for
commencing an extraordinary writ proceeding. The time for filing a
petition for common law certiorari is jurisdictional. If common law
certiorari is sought to review an order issued by a lower tribunal
consisting of more than 1 person, a copy of the petition should be
furnished to the chairperson of that tribunal.

Subdivision (d) sets forth the procedure for appellate review of
orders excluding the press or public from access to proceedings or
records in the lower tribunal. It establishes an entirely new and
independent means of review in the district courts, in recognition of
the decision in English v. McCrary, 348 So. 2d 293 (Fla. 1977), to
the effect that a writ of prohibition is not available as a means to
obtain review of such orders. Copies of the notice must be served on
all parties to the proceeding in the lower tribunal, as well as the
person who, or the chairperson of the agency that, issued the order.

No provision has been made for an automatic stay of
proceedings, but the district court is directed to consider the
appropriateness of a stay immediately on the notice being filed.
Ordinarily an order excluding the press and public will be entered
well in advance of the closed proceedings in the lower tribunal, so
that there will be no interruption of the proceeding by reason of the
appellate review. In the event a challenged order is entered
immediately before or during the course of a proceeding and it
appears that a disruption of the proceeding will be prejudicial to 1
or more parties, the reviewing court on its own motion or at the
request of any party shall determine whether to enter a stay or to
allow the lower tribunal to proceed pending review of the challenged
order. See State ex rel. Miami Herald Publishing Co. v. McIntosh, 340
So. 2d 904, 911 (Fla. 1977).

This new provision implements the “strict procedural
safeguards” requirement laid down by the United States Supreme
Court in National Socialist Party of America v. Village of Skokie, 432
U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977). In that case the
Court held that state restraints imposed on activities protected by
the First Amendment must be either immediately reviewable or
subject to a stay pending review.

Subdivision (e) sets forth the contents of the initial pleading.
The party seeking relief must file a petition stating the authority by
which the court has jurisdiction of the case, the relevant facts, the
relief sought, and argument supported by citations of authority.
This rule does not allow the petitioner to file a brief. Any argument
or citations of authority that the petitioner desires to present to the
court must be contained in the petition. This change in procedure is
intended to eliminate the wasteful current practice of filing
repetitive petitions and briefs. Under subdivision (g) no record is
required to be filed unless the court so orders, but under
subdivision (e) the petitioner must file an appendix to the petition
containing conformed copies of the order to be reviewed and other
relevant material, including portions of the record, if a record exists.
The appendix should also contain any documents that support the
allegations of fact contained in the petition. A lack of supporting
documents may, of course, be considered by the court in exercising
its discretion not to issue an order to show cause.

Under subdivisions (f), (h), and (i), if the allegations of the
petition, if true, would constitute grounds for relief, the court may
exercise its discretion to issue an order requiring the respondent to
show cause why the requested relief should not be granted. A single
responsive pleading (without a brief) may then be served,
accompanied by a supplemental appendix, within the time period
set by the court in its order to show cause. The petitioner is then
allowed 20 days to serve a reply and supplemental appendix, unless
the court sets another time. It should be noted that the times for
response and reply are computed by reference to service rather than
filing. This practice is consistent throughout these rules except for
initial, jurisdictional filings. The emphasis on service, of course,
does not relieve counsel of the responsibility for filing original
documents with the court as required by rule 9.420(b); it merely
affects the time measurements.

Except as provided automatically under subdivision (f), a stay
pending resolution of the original proceeding may be obtained
under rule 9.310.

Transmittal of the record under order of the court under
subdivision (g) shall be in accordance with the instructions and
times set forth in the order.

1980 Amendment. The rule was amended by deleting its
reference to former rule 9.030(a)(2)(B) to reflect the 1980 revisions
to article V, section 3(b), Florida Constitution that eliminated
supreme court review by certiorari of non-final orders that would
have been appealable if they had been final orders. The procedures
applicable to discretionary supreme court review of district court
decisions under rule 9.030(a)(2)(A) are governed by rule 9.120. The
procedures applicable to supreme court discretionary review of trial
court orders and judgments certified by the district courts under
rule 9.030(a)(2)(B) are set forth in rule 9.125.

Subdivision (d) was amended to delete references to the
district courts of appeal as the proper court for review of orders
excluding the press and public, because the appropriate court could
also be a circuit court or the supreme court.

1992 Amendment. Subdivision (b) was amended to add 2
provisions clarifying designation of parties to original proceedings.
The first change eliminates the practice of bringing original
proceedings on the relation of the state and instead requires that if
a private right is being enforced, an action must be brought in the
names of the parties. Second, this subdivision now requires that all
parties not named as petitioners be included in the style as
respondents, consistent with rules 9.020(f)(3) and (f)(4).

Subdivision (c) was amended to eliminate the practice of
naming lower court judges, members of administrative bodies, and
hearing officers as respondents in petitions for certiorari and for
review of non-final agency action. Such individuals still are to be
served a copy of the petition, but the amendment is to eliminate any
suggestion that they are parties or adverse to the petitioner.

Subdivision (c) also was amended to reflect that review of final
administrative action, taken by local government agencies, boards,
and commissions acting in a quasi-judicial capacity, is subject to
the requirement that the petition for writ of certiorari be filed within
30 days of rendition of the order to be reviewed.

Subdivision (e) was amended to require that the petition, the
jurisdictional document, identify all parties on each side to assist
the court in identifying any potential conflicts and to identify all
parties to the proceeding as required by subdivision (b) of this rule.
Additionally, this subdivision was amended to require, consistent
with rule 9.210(b)(3), that the petition make references to the
appropriate pages of the appendix that is required to accompany
the petition.
Subdivision (f) was amended to add the existing requirement
in the law that a petition must demonstrate not only that there has
been a departure from the essential requirements of law, but also
that that departure will cause material injury for which there is no
adequate remedy by appeal. This subdivision, without amendment,
suggested that it established a standard other than that recognized
by Florida decisional law.

Subdivision (h) was amended to require that any response, like
the petition, contain references to the appropriate pages of
appendices, consistent with subdivision (f) of this rule and rules
9.210(b)(3) and 9.210(c).

1996 Amendment. The reference to “common law” certiorari
in subdivision (c)(1) was removed so as to make clear that the 30-
day filing limit applies to all petitions for writ of certiorari.

Subdivision (c)(4) is new and pertains to review formerly
available under rule 1.630. It provides that a prisoner’s petition for
extraordinary relief, within the original jurisdiction of the circuit
court under rule 9.030(c)(3) must be filed within 30 days after final
disposition of the prisoner disciplinary proceedings conducted
through the administrative grievance process under chapter 33,
Florida Administrative Code. See Jones v. Florida Department of
Corrections, 615 So. 2d 798 (Fla. 1st DCA 1993).

Subdivision (e) was added, and subsequent subdivisions re-
lettered, in order to alter the procedural requirements placed or
apparently placed on lower court judges in prohibition and
mandamus proceedings. The duty to respond to an Order to Show
Cause is expressly placed on the party opposing the relief requested
in the petition, and any suggestion of a duty to respond on the part
of the lower court judge is removed. The lower court judge retains
the option to file a response. In those circumstances in which a
response from the lower tribunal is desirable, the court may so
order.

Subdivision (f) was added to clarify that in extraordinary
proceedings to review lower tribunal action this rule, and not
Florida Rule of Civil Procedure 1.630, applies and to specify the
duties of the clerk in such proceedings, and to provide a
mechanism for alerting the clerk to the necessity of following these
procedures. If the proceeding before the circuit court is or may be
evidentiary in nature, then the procedures of the Florida Rules of
Civil Procedure should be followed.

1999 Amendment. Page limits were added to impose text
limitations on petitions, responses and replies consistent with the
text limitations applicable to briefs under Rule 9.210.

2010 Amendment. Subdivision (d) is revised to allow review
not only of orders that deny access to records of the judicial branch
or judicial proceedings, but also those orders that deny motions to
seal or otherwise grant access to such records or proceedings
claimed to be confidential. This revision is intended to recognize
and balance the equal importance of the constitutional right of
privacy, which includes confidentiality, and the constitutional right
of access to judicial records and proceedings. The previous rule
allowed review of orders denying access only “if the proceedings or
records are not required by law to be confidential.” This provision is
eliminated because it is unworkable in that such a determination of
what is required by law to be confidential usually concerns the
merits of whether the proceedings or records should be confidential
in the first instance. Outer time limits for seeking review are added.
Subdivision (d)(2) is revised to provide continued confidentiality of
judicial proceedings and records to which the order under review
has granted access upon the filing of a motion to stay that order
until the court rules on the motion to stay. The former subdivision
(d)(3) concerning oral argument is deleted as unnecessary in light of