Opinion
No. 1D19-2797
08-06-2021
R.C., Appellant, v. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, DIVISION OF LICENSING, Appellee.
Eric J. Friday of Kingry & Friday, Jacksonville; Noel Howard Sohn Flasterstein of Noel H. Flasterstein, P.A., Hollywood, for Appellant. Steven Hall, General Counsel, and Tobey Schultz, Senior Attorney, Tallahassee, for Appellee Department of Agriculture and Consumer Services. James Martin, General Counsel, and D. Jason Harrison, Assistant General Counsel, Tallahassee, for Amicus Curiae Florida Department of Law Enforcement.
Eric J. Friday of Kingry & Friday, Jacksonville; Noel Howard Sohn Flasterstein of Noel H. Flasterstein, P.A., Hollywood, for Appellant.
Steven Hall, General Counsel, and Tobey Schultz, Senior Attorney, Tallahassee, for Appellee Department of Agriculture and Consumer Services.
James Martin, General Counsel, and D. Jason Harrison, Assistant General Counsel, Tallahassee, for Amicus Curiae Florida Department of Law Enforcement.
ON MOTION FOR CERTIFICATION
Per Curiam. The Court denies Appellee's motion for certification, filed July 1, 2021.
Rowe, C.J., and Lewis, Roberts, Ray, Osterhaus, Winokur, Jay, M.K. Thomas, Nordby, and Tanenbaum, JJ., concur.
Long, J., concurs with opinion in which B.L. Thomas, Roberts, and Tanenbaum, JJ., join.
B.L. Thomas, J., concurs with opinion in which Roberts, Tanenbaum, and Long, JJ., join.
Bilbrey, J., dissents.
Makar, J., dissents with opinion in which Kelsey, J., joins.
Kelsey, J., dissents with opinion in which Makar, J., joins.
Long, J., concurring in the denial of the motion for certification.
The Department moves this Court to certify a question of great public importance. I concur in the denial of the motion. And I write to reject the argument that the Court's decision to take a case en banc necessarily means the case involves a question worthy of certification.
There are two bases for a court of appeal's en banc review: exceptional importance and decisional uniformity. Fla. R. App. P. 9.331(a) ("En banc hearings and rehearings shall not be ordered unless the case or issue is of exceptional importance or unless necessary to maintain uniformity in the court's decisions."). Because a case can face en banc review for reasons of decisional uniformity, even where it does not present an issue of exceptional importance, it is possible for en banc review to serve its purpose without ever approaching the level of great public importance required for the certification of a question. Here, multiple panels of the Court were adjudicating cases that turned on the same issue. And it was apparent that the panels might reach different conclusions. In this circumstance, it may be appropriate for the Court to take one of the cases en banc to resolve the issue in a way that will maintain uniformity. This was the first and primary purpose of the en banc rule instituted as a companion to the structural changes in constitutional appellate jurisdiction in the state—to provide a tool for the courts of appeal to address intradistrict conflicts. See Chase Fed. Sav. & Loan Ass'n v. Schreiber , 479 So. 2d 90, 93 (Fla. 1985). As a result, this case was appropriate for en banc review without regard to the importance of the issues presented.
But even where the decision to take a case en banc hinges on the case's exceptional importance, certification may not be warranted. The legal inquiry for exceptional importance differs from the decision to certify a question of great public importance. The purpose, procedural posture, and the inquiry itself contrast in significant ways.
We must first recall that the courts of appeal are meant to be courts of last resort. Johns v. Wainwright , 253 So. 2d 873, 874 (Fla. 1971) ("It was the intention of the framers of the constitutional amendment which created the District Courts that the decision of those courts would, in most cases, be final and absolute."). To that end, we cannot use certification to "pass the buck to the supreme court anytime we are faced with an issue of first impression or of particular difficulty." Univ. of Miami v. Wilson , 948 So. 2d 774, 792 (Fla. 3d DCA 2006) (Shepherd, J., concurring.). Nor should it "provid[e] a losing party the opportunity to target the forum," id. at 790, or relitigate a case just because they do not like the Court's decision.
Understanding our constitutional charge, we must then examine the operative provisions. The en banc exceptional importance inquiry is a product of rule 9.331. The rule does not include a definition or further guidance to explain the term. In what way must it be exceptionally important and to whom? Taking a case en banc might be exceptionally important to a particular body of law or to the institutional integrity of the court. But these possibilities do not necessarily mean that the case involves a question of great public importance worthy of triggering constitutional jurisdiction in the supreme court.
In the constitutional language, we find that the jurisdictional trigger is unlike the en banc rule in that it is modified by the inclusion of the word public . Art. V, § 3(b)(4), Fla. Const. (stating the supreme court "[m]ay review any decision of a district court of appeal that passes upon a question certified by it to be of great public importance"). The constitution answers what the rule leaves open. The question must be of great importance to the public . A judge might decide an issue is of exceptional importance, but not for reasons that create a question of great public importance. And so, the constitution necessarily limits certification in a way the rule does not.
The provisions also differ in what they require to be important. The rule speaks of an important case or issue , while the constitution speaks of an important question . Exceptional cases or issues may not involve questionable law. That is, a case or issue may be initially presented to the Court in a way that is exceptionally important, while its final resolution may not leave any legal questions of great public importance.
These distinctions are relevant to our inquiry today. At issue in this case, and in other cases that were pending before the Court, were the Department's actions that ignored the rights of a citizen and its obligations under the concealed-carry statute. This was done by both misapplying the language of the concealed-carry eligibility provisions to deny applications in the first instance and then by refusing to comply with the standard administrative law entitlement to a hearing. Correcting the Department's errors may have been of exceptional importance. But after correction, the decision on certifying a question requires an inquiry into the nature of the decision and law on which it depends. The Court's opinion did not change any longstanding legal principles. Nor did it address any novel issues in the law. It requires only that the Department comply with the plain language of the statute—both regarding the criteria for the issuance of a license and the entitlement to a hearing. This is a straightforward administrative law case. Requiring the Department to comply with the basic governing statutory provisions does not present a question of great public importance.
Finally, the decision to certify a question of great public importance is a discretionary act by the Court. A judge could find that a case presents a question of great public importance and yet determine there are compelling reasons not to certify. The judges voting to deny the certification of a question today could be relying on any, or some combination, of these reasons. Each judge in an en banc proceeding will invariably have their own reasons. The votes are not a "judicial about-face." Instead, like the votes to certify, they are the reflection of thoughtful deliberation on an important and nuanced legal question.
I disagree but respect the dissent's view that this case warrants certification. We should not pass a question on simply because we cannot all agree on the answer.
B.L. Thomas, J., concurring in the denial of certification.
The heart of this Court's en banc opinion held that the Department of Agriculture and Consumer Services was required to provide Appellant a formal evidentiary hearing under section 120.57(1), Florida Statutes, before denying his license application to carry a concealed firearm license, which is a substantial interest given the Legislature's repeated declarations to that effect in section 790.06(15), Florida Statutes (2019) . According to section 790.06, there is a disputed issue of material fact raised regarding Appellant's entitlement to the license: whether Appellant was ineligible to receive the license under state law where, after a felony conviction, all his legal rights were restored.
Effective June 29, 2021, the Legislature amended section 790.06 to add a new subsection (13). See ch. 2021-200, § 1, Laws of Fla. This resulted in the subsequent subsections being renumbered.
There is no justification for certifying a question here where the majority's holding is required under the plain language contained in the original enactment of the Administrative Procedures Act. See § 120.57, Fla. Stat. (1974), amended by ch. 96-159, § 19, Laws of Fla. (requiring formal administrative proceedings "in all proceedings, in which the substantial interests of a party are determined by an agency" or "whenever the proceeding involves a disputed issue of material fact").
This Court, and every district court, have held for decades that administrative agencies must comply with this landmark statute, which was enacted to ensure that citizens whose substantial interests are determined, receive a fair and formal hearing to dispute material facts relied on by the agency. See, e.g., Tuckman v. Fla. State Univ. , 489 So. 2d 133, 134–35 (Fla. 1st DCA 1986) (holding that the university wrongfully denied a professional staff member a formal administrative hearing under section 120.57(1) before it terminated the staff member because the university erroneously claimed there were no disputed issues of material fact); Royal Palm Square Ass'n v. Sevco Land Corp. , 623 So. 2d 533, 535–36 (Fla. 2d DCA 1993) (holding that a third party was entitled to administrative hearing under section 120.57(1) to challenge the water management district's approval of a stormwater permit where the third party alleged disputed issues of material fact); Smith v. Dep't of Bus. & Prof'l Reg., Bd. of Clinical Lab. Pers. , 627 So. 2d 1346, 1346 (Fla. 3d DCA 1993) (holding that a license applicant was entitled to a formal administrative hearing under section 120.57(1) after the agency denied his application because the applicant demonstrated the existence of disputed issues of material fact); Silver Show, Inc. v. Dep't of Bus. & Prof'l Reg., Div. of Alcoholic Beverages & Tobacco , 706 So. 2d 386, 388 (Fla. 4th DCA 1998) ("Because a licensee's right to operate under an alcoholic beverage license involves a substantial interest of the licensee, the Administrative Procedures Act (APA) is necessarily involved."); Meller v. Fla. Real Est. Comm'n , 902 So. 2d 325, 327 (Fla. 5th DCA 2005) ("If the agency's action will determine the substantial interests of a party and there are disputed issues of material fact, a party is entitled to a formal proceeding under section 120.57(1)."); Save Our Creeks v. Fla. Fish & Wildlife Conser.Comm'n , 112 So. 3d 128 (Fla. 1st DCA 2013) ("As a general principle of administrative law, a person is entitled to a section 120.57 hearing when an agency takes a final action affecting that person's interests and there is a disputed issue of material fact related to that action.") (citation omitted).
Thus, it is not a question of great public importance that this well-settled question of law be certified for further judicial review. It was important for this Court to hear this case en banc to ensure a correct result because the substantial interest to be determined by the agency is one that involves the "constitutional right to bear arms for self-defense." § 790.06(15), Fla. Stat. The Legislature has directed the agency and the courts to "liberally construe[ ]" the procedural protections provided to such license applicants. Id. Further, the Legislature has declared that the eligible applicant's right to receive a concealed-carry license is "supplemental and additional to existing rights to bear arms." Id. And, here, the Legislature has prohibited the Department from exercising any "authority to regulate or restrict the issuing of licenses provided for in this section, beyond those provisions contained in this section." Id. Finally, it was imperative for this Court to hear this case en banc to ensure compliance with the Legislature's intent prohibiting the Department from engaging in "[s]ubjective or arbitrary actions or rules which encumber the issuing process by placing burdens on the applicant beyond ... those [required] in this section." Id. (emphasis added).
Had this Court not decided this case en banc and issued a panel opinion upholding the Department's arbitrary actions denying Appellant a formal administrative hearing, we would have erroneously disregarded section 790.06(15), Florida Statutes, where the Legislature has recognized the constitutional right of citizens to arm themselves and their families by carrying concealed weapons and firearms for protection against potential violent crimes like rape (sexual battery), robbery, assault, and murder.
Judge Makar's dissenting opinion urging this Court to certify a question of great public importance repeats the meritless arguments of the Department which seek to deny the statutory rights of citizens under chapter 120 and their constitutional rights to effectively defend themselves and their families by lawfully carrying a concealed firearm. One must assume from this dissenting opinion that courts are never to disagree with a state agency, even where it acts arbitrarily. Fortunately, citizens have legal and constitutional rights that are protected by the courts against unlawful actions by their government, especially where exercising the rights at stake can be a matter of life and death—the right to self-defense outside the home.
Of course, the idea that a felon whose rights have not been restored would subject himself to fifteen years in state prison by applying to carry a concealed firearm, somehow obtain the license from the state, and then carry the firearm and thereby commit a second-degree felony under section 790.23(1), Florida Statutes, defies logic. Criminals are highly unlikely to advertise their intent to commit a felony and provide the state with the evidence to convict them.
Furthermore, the district courts are not "intermediate" courts that simply render advisory opinions and ask for further judicial review whenever a party loses an appeal. This Court is a court of last resort in the vast majority of cases in Florida. Johns v. Wainwright , 253 So. 2d 873, 874 (Fla. 1971) ("The District Courts of Appeal were never intended to be intermediate courts. It was the intention of the framers of the constitutional amendment which created the District Courts that the decision of those courts would, in most cases, be final and absolute."); see Jenkins v. State , 385 So. 2d 1356, 1358 (Fla. 1980) (holding that supreme court lacked jurisdiction to review opinions affirming trial courts without opinion, regardless of concurring or dissenting opinions asserting conflicts with other district courts or the supreme court).
In Jenkins , the supreme court recognized that district courts are not "intermediate" courts, stating:
We have heretofore pointed out that under the constitutional plan the powers of this Court to review decisions of the district courts of appeal are limited and strictly prescribed. ... It was never intended that the district courts of appeal should be intermediate courts . The revision and modernization of the Florida judicial system [in 1956] at the appellate level was prompted by the great volume of cases reaching the Supreme Court and the consequent delay in the administration of justice. The new article embodies throughout its terms the idea of a Supreme Court which functions as a supervisory body in the judicial system for the State, exercising appellate power in certain specified areas essential to the settlement of issues of public importance and the preservation of uniformity of principle and practice, with review by the district courts in most instances being final and absolute.
385 So. 2d at 1357–58 (emphasis added).
And Chief Justice England's special concurring opinion in Jenkins helpfully recounts the debates around that amendment and its significance, concluding that:
The significance of the public discussion concerning the amendment is that it provides a frame of reference by which to ascertain the intent of the voters in adopting the amendment. In this case, the public debate and informational literature make abundantly clear that the voters were asked to approve an appellate court structure having these features:
1. a supreme court having constitutionally limited, as opposed to unlimited, discretionary review of intermediate appellate court decisions; and
2. finality of decisions in the district courts of appeal, with further review by the supreme court to be accepted, within the confines of its structural review, based on the statewide importance of legal issues and the relative availability of the Court's time to resolve cases promptly.
Id. at 1363 (England, C.J., specially concurring) (emphasis added).
Thus, Judge Makar's dissenting opinion's view that every decision in which a minority of judges thinks a case is important should be certified to the supreme court is contrary to the electorate's decisions to create the district courts and strictly limit the supreme court's jurisdiction. The voters decided more than forty years ago that the supreme court is not, and should not, be in the business of reviewing district court decisions that do not involve novel questions of law and do not conflict with any other district court decisions. This is especially true where the district court correctly reaches a decision on long-established precedent interpreting unambiguous text in section 120.569, Florida Statutes, which requires that an administrative agency provide proof in a formal hearing to support its decision determining the substantial interest of a party. The fact that the "substantial interest" at stake is one declared to be so important by the Legislature in section 790.06(15), Florida Statutes, only supports the majority's holding on the merits and the decision to deny a certified question of great public importance.
As to the majority's "confidence," or lack thereof, as Judge Makar erroneously asserts is the motive in the majority's vote to deny the motion to certify a question, it is logical to assume the opposite: that each judge is confident in the holding to which that judge assented. Otherwise, the judge would not have so voted. But that does not mean that the majority is attempting to restrain further judicial review. In fact, it means the opposite: that the law applicable here is so clear that further review is both unjustified and unnecessary.
Nor did the majority "ignore" anything, as Judge Makar's dissenting opinion incorrectly asserts. We simply rejected the meritless argument raised by Appellee's and Amicus's supplemental briefs that Appellant was not entitled to the exact procedures the Legislature long ago required to be accorded to persons whose substantial interests were determined by an administrative agency, when disputed issues of material fact are raised.
Finally, the majority opinion correctly upheld the rule of law to protect Appellant's right to a formal administrative hearing where his constitutional rights to bear arms in self-defense were rendered illusory by the Department's unlawful actions in denying the hearing, where Appellant submitted unrebutted evidence that his rights had been restored. Thus, it is the majority, not the dissenting opinions, that recognized and validated this fundamental right of self-defense enshrined in both the federal and state constitutions. Therefore, there is no justification for certifying a question of great public importance, which would inject yet more delay in this case, further eviscerating Appellant's constitutional rights without just cause.
Thus, I concur in the majority's decision to deny the motion to certify a question of great public importance.
Makar, J., dissenting from the denial of motion for certification.
The sua sponte en banc hearing in this concealed weapons licensing case was based on its exceptional importance to the constitutional rights of former felons statewide, thereby justifying certification of a question of great public importance on an issue of first impression for our supreme court's consideration. Art. V, § 3(b)(4), Fla. Const.; Fla. R. App. P., 9.030(a)(2)(A)(v). Two important state agencies have warned of the possible negative impact on public safety in Florida due to the disposition in this case—one unquestionably of great public importance statewide due to the thousands of concealed weapons applications impacted. It behooves us as an intermediate appellate court to allow the adversely affected governmental agencies to make their case to our highest court for its consideration.
"Sua sponte" is the fancy Latin phrase meaning "the Court did it on its own." Sua Sponte , Black's Law Dictionary (8th Ed. 2004) ("Without prompting or suggestion; on its own motion.").
To begin, this case and the issue presented are exceptionally important because, by definition, they must be. "En banc hearings and rehearing shall not be ordered unless the case or issue is of exceptional importance or unless necessary to maintain uniformity in the court's decisions." Fla. R. App. P. 9.331 (emphasis added). Uniformity of decisions is not an issue because this is a case of first impression; neither this Court nor any other in Florida has previously addressed the issue presented. Instead, en banc review was ordered because the case and issues presented were "exceptionally important," and the case was decided on that basis.
This case is also extraordinary because an en banc hearing is itself a rarity, occurring maybe once every few years. That's because a hearing en banc is a departure from the typical practice, which provides for en banc rehearing after a three-judge panel opinion is publicly released. Fla. R. App. P. 9.331.
A recent article states that since 1982 "Florida's appellate courts have collectively issued 492 en banc opinions, which means Florida's appellate courts have only issued, on average, 13 en banc opinions per year." William D. Slicker, En Banc Hearings, by the Numbers , 95 Fla. B.J., March/April 2021, at 39, 39 (footnote omitted). The number of cases involving en banc hearings (versus rehearings) is a small fraction of this number.
An en banc hearing is typically used to resolve a potential conflict with a prior decision of the court to achieve uniformity. Philip J. Padovano, 2 Fla. Prac., Appellate Practice § 21:9 (2021 ed.) ("En banc hearings are most likely to occur when it becomes apparent to a panel of judges that a proposed decision will be in conflict with a prior decision of the court."). Here, however, a sua sponte en banc hearing was invoked to address a matter of exceptional importance, one that justified all fifteen appellate judges deciding it in the first instance. It is an entirely judge-initiated event; parties cannot seek an en banc hearing—only judges may do so. Fla. R. App. P. 9.331(c) ("A hearing en banc may be ordered only by a district court of appeal on its own motion. A party may not request an en banc hearing. A motion seeking the hearing shall be stricken."). En banc hearing is the teeniest sliver of our docket (perhaps 0.02%), reserved for only the most critically important cases. This infrequent type of judge-initiated internal review on an issue of first impression does not occur in the run-of-the-mill cases; it occurs because a case's importance surpasses that of essentially all others on our docket thereby justifying an "all hands on deck" approach to deciding it as a full court. In short, this is a case unlike any other; it presents an issue that is undeniably "exceptionally important" via a judicial process that was itself extraordinary.
A case that is of exceptional importance is highly likely to be one that presents a question of great public importance; a Venn diagram would reflect substantial overlap between the two concepts. While not all en banc cases necessarily merit a certified question of great public importance, this one clearly does. Cases involving certified questions of "great public importance" are based on many attributes, the most prominent ones existing in this case. See generally Raoul G. Cantero III, Certifying Questions to the Florida Supreme Court: What's So Important? , 76 Fla. B.J., May 2002, at 40, 40 (summarizing and analyzing supreme court caselaw on the topic). This case is obviously of great public importance because it (a) affects more than R.C. and, instead, has a statewide impact on thousands of applicants for concealed weapons licenses; (b) implicates the constitutional right to keep and bear arms; (c) involves a matter of first impression; and (d) has public safety implications because it directly impacts access to firearms by former felons. Id .; see also Harry Lee Anstead et al., The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. 431, 527 (2005) (discussing scope of certified questions).
Duggan v. Tomlinson , 174 So. 2d 393, 393–94 (Fla. 1965) (certification "is particularly applicable to decisions of the district courts of appeal of first impression, where no decisional conflict or other factor involving our certiorari jurisdiction is invoked[ ]"). The issue presented is unlikely to arise in another district court of appeal thereby foreclosing the potential for jurisdiction based on conflict or certified conflict. Art. V, § 3(b)(3) & 3(b)(4), Fla. Const.
Notably, cases involving firearms and interpretations of Chapter 790 are readily seen as presenting grounds for certified questions. A helpful example is Iley v. Harris , 345 So. 2d 336 (Fla. 1977), which has very close parallels to this case because it involved an applicant seeking a license to carry a pistol under section 790.06, Florida Statutes. "At the time he made application, Harris was sixty-five years of age, of good moral character and described by witnesses as temperate, industrious and, in all respects, fit to have a gun permit." Id. at 336. The county commission denied his application and he pursued judicial relief. The trial court denied the county's motion to dismiss and review was sought in the Second District, which upheld the denial but certified this question: "Does Section 790.06, Florida Statutes, vest a Board of County Commissioners with any discretion in the issuance of licenses to carry firearms to persons meeting the statutory criteria of age and good moral character?" Id. The supreme court accepted review and affirmed. See also Norman v. State , 159 So. 3d 205, 209 (Fla. 4th DCA 2015) (reviewing three certified questions regarding Chapter 790 related to open carry of firearms), approved , 215 So. 3d 18 (Fla. 2017).
As in Iley , the critical issue of first impression in this case is whether the Department's longstanding interpretation of its responsibilities under section 790.06, Florida Statutes, is erroneous. The certified question in Iley could easily be revised in this case to ask:
Does Section 790.06, Florida Statutes, vest the Departmenta Board of County Commissionerswith any discretion in the issuance of licenses to carry concealed firearms to persons deemed ineligible to purchase a weapon by NICSmeeting the statutory criteria of age and good moral character?
Compared to Iley , this case presents an even more compelling basis for a certified question due to its statewide impact on thousands of concealed weapon applicants.
The Department asks for certification of the following question of great public importance: "May the Department dispositively rely on FDLE's search of the federal National Instant Criminal Background database in denying a concealed weapons license where the search result identifies the applicant as ineligible to possess or purchase a firearm as a matter of law?" This question is adequate because it is one of the legal issues the majority has passed upon and answered in the negative. The following two-part question, however, better encapsulates the majority's two holdings: "Whether the Florida Department of Agriculture and Consumer services erred in its interpretation of section 790.06, Florida Statutes, in concluding that it may deny a concealed weapons license based solely on the results of a National Instant Criminal Background Check System (NICS) showing an applicant is ineligible to purchase a weapon due to a felony conviction? If so, whether the applicant is entitled to a formal hearing." The phrasing of the questions is important because they must be ones that had been passed upon by the certifying court. See Floridians For A Level Playing Field v. Floridians Against Expanded Gambling , 967 So. 2d 832, 833 (Fla. 2007).
Given this case's lineage as one of immense importance on a statewide basis, it is anomalous that the majority by 12-3 vote (paralleling the merits vote) has declined to certify a question of great public importance, thereby depriving our supreme court of discretionary jurisdiction on this basis. A certified question is particularly important in this case because it provides a clearly defined avenue for our supreme court's review. See Anstead et al., supra , at 527 ("[T]he failure to certify a question eliminates this potential basis for the Supreme Court of Florida's jurisdiction.").
In an apparent judicial about-face, what was so "exceptionally important" at the outset of this case, and was the sole basis for a sua sponte hearing en banc, is not so much anymore. How can that be? What changed? The only thing that has changed is that warning lights are now flashing on a statewide basis. Having undertaken the case sua sponte on its own terms—and ignored and thereby placed no reliance on the critical factual and legal analysis in the supplemental briefs of the Department and FDLE —the majority's ruling has set off a firestorm and a potential detriment to public safety, at least if these top agencies are to be believed. Repeating warnings from the (ignored) supplemental briefs, the Department says that the majority's "ruling will lead to the issuance of concealed weapons licenses to individuals, including known threats to public safety such as convicted felons, those with involuntary psychiatric commitments, and domestic abusers from other states and territories, who are prohibited from purchasing or possessing firearms."
The majority decries that an IOP allowed five members (a third of the Court) to permit supplemental briefs by the Department and FDLE (the IOP, which existed for years, was amended during the pendency of this case to require a majority vote) and proclaims that its "opinion relies exclusively on the record and the original briefing."
Perhaps this is pure hyperbole, but that is not at all apparent. The majority has ruled that the Department may no longer rely exclusively on the results of a NICS inquiry, and instead must (somehow) present other evidence to justify denying an applicant for a concealed weapons license where NICS shows him to be an ineligible felon (who can't even own a weapon let alone conceal one). But the Department has no power to access the confidential criminal justice information that would be necessary to do so; the Department's hands are tied because it can neither access nor adjudge the correctness of information in the confidential criminal justice databases. As it now stands, the Department will be required to issue concealed weapons permits to applicants whose background checks show prior felonies in the NICS database; this can't be what the legislature intended.
Finally, there may be some truth in the saying that "a case is of exceptional importance whenever a majority of the judges on a DCA say that it is." Douglas A. Wallace, What Makes A Case or an Issue One of Exceptional Importance? , 89 Fla. B.J., May 2015, at 28, 28 (noting that this saying "may be both glib and cynical, but there is a kernel of truth in it[ ]" (footnote omitted)). The contrapositive of what Judge Wallace wryly noted is that "a case is not of exceptional importance whenever a majority of judges on a DCA say that it is not ." Majoritarian vote-counting underlies both sayings, however, curtailing the usefulness of the certification process, which requires putting aside the correctness of the decision in a case and acknowledging its importance. Rather than say "no need to certify a question, we've answered it correctly," why not ask whether the question would be of great public importance if you were in the dissent? Imagine if a majority of the en banc court voted to uphold the Department's actions with a minority of judges dissenting on the basis that the Department placed too much reliance on NICS and failed to provide an adequate hearing. It takes little imagination to surmise that the dissenters would say this case is worthy of a certified question on a matter of great public importance. Plus, certifying a question is a low-cost option that signals that the majority is confident in its legal position, providing the opportunity for the supreme court to tacitly bless its handiwork by denying review.
In conclusion, because this case is of such exceptional importance that a sua sponte en banc hearing was necessitated, it remains so in light of the majority's holding and justifies certification of a question of great public importance for our supreme court's consideration. A refusal to certify a question takes this option off the table; we ought to set the table for the justices, not take it away.
Postscript :
In response to this dissent, Judge Bradford L. Thomas ruminates about the role of district courts in Florida's constitutional structure and carps that certification ought not be done simply because dissent exists. Because no one has suggested the latter, it amounts to a classic strawman argument; a "dissent=certified question" principle wouldn't be sensible anyway. As to the former, although district court decisions are typically final, a constitutional responsibility exists to certify questions of the type directly passed upon in this case, which two state agencies have said adversely affects public safety. In golf parlance, this too is the judicial equivalent of a swing and a miss, i.e., a whiff.
Judge Long's response also misses the point of certified questions. Saying that "[c]orrecting the Department's errors may have been of exceptional importance" is a tacit admission that this case is exceptionally important; simply because the majority believes it has corrected an error, however, doesn't end the inquiry under article V, section 3(b)(4). Every case in Florida's judicial history in which a question has been certified under section 3 (b)(4) involved majorities who thought they corrected errors of importance, but that didn't stop them from certifying critically important questions to give our supreme court this option to conduct further review. Simply stated, an appellate court passing upon a question of exceptional importance (or great public importance) doesn't thereby render the question of lesser importance.
In addition, saying that the majority did not "address any novel issues in the law" is off base when it is apparent this case is one of first impression; not a word had been written by any Florida court on the exceptionally important question the majority passes upon, i.e., how the concealed carry statute is construed and applied. Likewise, saying that the majority "did not change any longstanding legal principles" will come as a big surprise to anyone familiar with Florida's firearms and concealed carry laws as they apply to applicants with felony records. From 1987 to the present, the Department—overseen by both Republican and Democratic commissioners—has administered the statute without the slightest protestation that it deprived applicants with felony records of the ability to prove their entitlement to the restoration of the right to keep and bear arms; the Department—and FDLE—are now ringing alarm bells.
What's changed—obviously—is a monumental and destabilizing shift in the long-standing interpretation of Florida's firearms law as applied to those with felony records: the Department can no longer rely—as it has for decades in safely administering the concealed weapons statute—on the most critical source of criminal justice information available to law enforcement officials at FDLE in reviewing the concealed weapon applications of those with felony records. How could a district court decision—one that could lead to felons (and other persons who are not properly cleared) receiving concealed firearms licenses—not be a matter of great public importance for our supreme court's consideration? That's a question that remains unanswered.
Kelsey, J., dissenting from the denial of certification.
I concur in, and expand upon, Judge Makar's opinion on the motion for certified question. Consistent with my position on the merits, not to mention the constitutional rights at issue and the significant public impact of the majority's decision, I would grant the motion to certify a question or questions of great public importance.
Even without a certified question, however, other grounds exist for Florida Supreme Court jurisdiction. Because this Court has invalidated an express statutory provision—section 790.06(6)(a), Florida Statutes (2019), designating FDLE alone to conduct the requisite criminal background check—the Florida Supreme Court has mandatory appeal jurisdiction under Article V, section 3(b)(1) of the Florida Constitution. The majority's opinion also violates, contradicts, and thus invalidates, section 790.06(15) (limiting DACS's authority to that expressly conferred by statute); section 120.52(8) (limiting agencies such as DACS to the "specific powers and duties conferred by the enabling statute" ) (emphasis added); and section 790.06(6)(c) 2. (mandating that DACS "shall" deny concealed-carry licenses if the applicant is not shown to be qualified after the agency follows the designated statutory process for background checks).
The Florida Supreme Court also has jurisdiction based on conflict of decisions under Article V, section 3(b)(3) of the Florida Constitution. The majority decision conflicts with decisions of the Florida Supreme Court and other district courts of appeal on governing principles of statutory interpretation, preservation, judicial restraint, and a litigant's lack of entitlement to a new hearing after having failed to come forward with evidence or argument in the first hearing.
For any or all of these reasons, and because this case is quite literally of great public importance, I very strongly urge the high court to grant review and stay the majority decision pending review. I would hope that the supreme court would have the benefit of amici curiae participation, including both state and federal stakeholders, given the closely intertwined regulatory structure encompassing both levels of government.