In its recent decision, Florida Highway Patrol v. Jackson,[1] the Florida Supreme Court struck an important judicial blow to protect governmental entities and their employees who invoke their immunity from suit as a defense to litigation. Generally, governmental entities in Florida enjoy common law sovereign immunity from suit and tort liability for performing discretionary and planning functions. The principle, grounded in the separation of powers doctrine, recognizes that one branch of government (the judiciary) should not be intruding upon the authority reserved to another branch of government (like the legislative or executive). Additionally, pursuant to section 768.28(9), Florida Statutes, governmental employees also enjoy immunity from suit and tort liability for conduct in the course and scope of their employment, provided those employees did not act with malice or bad faith or in a manner exhibiting wanton and willful disregard of human rights, safety or property. Lastly, government employees sued under federal civil rights laws are sometimes entitled to invoke absolute or qualified immunity as a defense if they acted in good faith and their conduct did not violate clearly established law.
Pre-Jackson, Florida Rule of Appellate Procedure 9.130(a)(3)(C), which governs interlocutory appeals of non-final trial court orders, contained three provisions allowing for immediate appellate review of orders denying the invocation of immunity. In order to invoke appellate jurisdiction, the appellant needed to establish under any of the provisions that the order to be reviewed had determined “as a matter of law” that the party was not entitled to immunity. Every district court of appeal in the state had interpreted the rule’s provisions as requiring that the trial court’s order expressly state that the government defendant or government employee was not entitled to immunity as a matter of law. The district courts concluded that if that ruling did not appear on the face of the order, they lacked jurisdiction to hear the appeal.
In Jackson, the issue was that the FHP had made a decision to re-open a highway after it had been closed because of smoke from nearby fires. After it re-opened, an accident occurred that resulted in the death of a motorist, and her estate sued FHP. FHP contended that its decision to re-open the highway was a discretionary planning function immune from liability under common law sovereign immunity and moved for summary judgment. The trial court denied the motion, finding there were disputed issues of fact. FHP, in turn, sought interlocutory review of the denial of immunity pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(xi). The First District Court of Appeal concluded it lacked jurisdiction to hear the appeal because the trial court’s order did not expressly determine as a matter of law the FHP was not entitled to sovereign immunity. The court, however, certified the following question of great public importance: “Does Rule 9.130 permit an appeal of a non-final order denying immunity if the record shows that the defendant is entitled to immunity as a matter of law but the trial court did not explicitly preclude it as a defense?”
The Florida Supreme Court accepted jurisdiction to answer the certified question and concluded that, no, jurisdiction did not exist under the current formulation of the applicable procedural rule. The Court reasoned that because all the subsections of Rule 9.130(a)(3)(C) read the same way, they should be interpreted the same way. And because prior Florida Supreme Court precedents had interpreted the rule governing review of worker’s compensation immunity denials as requiring that the trial court’s order contain an express legal finding, the remaining provisions in Rule 9.130(a)(3)(C) would be interpreted the same way.
Having answered the certified question in the negative, the Florida Supreme Court then concluded that existing Rule 9.130(a)(3)(C) was inadequate to the task of protecting the important function of sovereign immunity. In doing so, the Court resolved a long pending dispute (particularly in federal courts) as to whether sovereign immunity under Florida law constitutes merely immunity from liability or, more broadly, immunity from suit. Disapproving of the Eleventh Circuit Court of Appeals’ interpretation of Florida law in Parker v. Am. Traffic Solutions, Inc.,[2] the Florida Supreme Court expressly held that sovereign immunity under Florida is immunity from suit and not merely immunity from liability. The Florida Supreme Court reasoned that “entitlement to sovereign immunity should be established as early in the litigation as possible.”
The Court then took the unusual step, on its own, of amending Rule 9.130(a)(3)(C) to allow not only for immediate appellate review of any denial of sovereign immunity, but also for the appellate court to review as much of the record as is necessary to determine whether sovereign immunity is applicable in the case. The Court issued a parallel opinion amending the rule.[3] The Court also amended the comparable provisions of Rule 9.130(a)(3)(C) governing the invocation of absolute or qualified immunity in civil rights actions and section 768.28(9) employee immunity, because those rule provisions “under protected” the important immunity interests at stake. Under the new rule, immediate review is now available with respect to any order denying a motion that asserts entitlement to (i) absolute or qualified immunity in a civil rights claim, (ii) immunity pursuant to section 768.28(9), Florida Statutes, or (iii) sovereign immunity.
Even though the Court answered the certified question in the negative and approved the First District’s jurisdictional decision, it did so with the express statement that FHP was free to renew its defense of sovereign immunity in the trial court and, if necessary, seek immediate review at the First District under the newly amended rule. This decision underscores the importance of amicus participation in precedent setting cases. Had we not brought to the Court’s attention the interests of the amici in other provisions of Rule 9.130(a)(3)(C), the Florida Supreme Court might not have, on its own, elected to amend those provisions as well.
[1] 2020 WL 370366 (Fla. Jan. 23, 2020). The firm appeared in the case as counsel of record for amici curiae, The Florida League of Cities and the City of Boca Raton, Florida.
[2] 835 F.3d 1363 (11th Cir. 2016).
[3] In re Amendments to Fla. Rule of Appellate Proc. 9.130, 2020 WL 370367 (Fla. Jan. 23, 2020)
