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January 30, 2020

FLORIDA SUPREME COURT REWRITES THE RULES, LIFTING RESTRICTIONS ON THE IMMEDIATE APPEAL OF ORDERS DENYING ABSOLUTE, QUALIFIED, OR SOVEREIGN IMMUNITY.

For those who have kept abreast of the latest opinions issued by the Florida Supreme Court, it should come to no surprise that the court recently amended suas ponte the Florida Rule of Appellate Procedure 9.130 to remove the limitation in the existing rule that permitted interlocutory review only of those orders that determined “as a matter of law” that a party was not entitled to absolute or qualified immunity in a civil rights claim arising under federal law, or to immunity under section 758.28(9), Florida Statutes, or to sovereign immunity. Fla. R. App. P. 9.130(a)(3)(C)(vii), (x) & (xi). The new majority of our Supreme Court has shown once again that it is not afraid to change its rules when it believes change is needed and justified.

In a separate opinion issued the same day with the opinion amending rule 9.130, the court found that the sovereign immunity subdivision in the then existing rule 9.130 “insufficiently protects the public and governmental interests served by sovereign immunity.” Florida Highway Patrol v. Jackson, SC18-468, 2020 WL 370366, at *6 (Fla. Jan. 23, 2020). The court noted that although “the rule reflects an understandable concern for the limited resources of appellate courts,” it poses a great risk that denials of sovereign immunity are reviewed when it is too late. Id. Given that in Florida, sovereign immunity is both immunity from liability and from suit, Jackson, 2020 WL 370366, at *5, the inability of a party to seek interlocutory review from the denial of sovereign immunity merely because it was not determined as a matter of law, frustrates the very purpose of sovereign immunity. The court explained that immunity in civil rights claims arising under federal law and immunity under section 768.28(9) are also immunity from suit and protect similar interests to those underlying sovereign immunity. Id. at *6. Therefore, the court concluded, an expanded interlocutory review should also be afforded to the denial of such claims.

The amended rule that took effect January 23, 2020, with the publication of the amendment, creates a new subdivision 9.130(a)(3)(F) that allows appeals of nonfinal orders which deny a motion that:

  1. asserts entitlement to absolute or qualified immunity in a civil rights claim arising under federal law;
  2. asserts entitlement to immunity under section 768.28(9), Florida Statutes; or
  3. asserts entitlement to sovereign immunity. In re Amendments to Florida Rule of Appellate Procedure 9.130, SC19-1734, 2020 WL 370367, at *1, *2 (Fla. Jan. 23, 2020). The new version of the rule removes the requirement that the orders determine “as a matter of law” that a party is not entitled to the asserted immunity.  Id. at *1. Thus, whenever a trial court denies a motion claiming entitlement to immunity, the appellate court has jurisdiction to review it, and “may review as much of the record as is necessary to resolve the question presented in the appeal.” Id.

Stay tuned: the changes might not end with this amendment. The Florida Supreme Court has asked the Florida Bar’s Appellate Court Rules Committee to consider whether the subdivision that allows for review of orders denying as a matter of law worker’s compensation immunity should benefit from the same expansion. Id.