UNIVERSITY OF MIAMI, A NONPROFIT CORPORATION, ET AL., PETITIONERS,
v.
ROBERT J. MILITANA, RESPONDENT
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The University of Miami sought to overturn a trial court's preliminary order requiring immediate admission of a medical school applicant as a fourth-year student pending resolution of a mandamus proceeding. The appellate court quashed the preliminary order, holding that while circuit courts have authority to issue provisional orders in mandamus cases, such orders must serve to preserve status quo or protect the court's jurisdiction—purposes this order did not satisfy.
While circuit courts possess constitutional authority to issue provisional mandatory or prohibitory orders during mandamus proceedings to preserve status quo or protect jurisdictional interests, the preliminary order here was without legal basis because it did not serve any of these authorized purposes and was therefore quashed.
“The issuance of provisional mandatory or prohibitory orders during the course of mandamus proceedings is not without authority or precedent. Such orders are authorized for the preservation of the status quo, to protect the court in the complete exercise of its jurisdiction or to effectuate its final judgment.”
Establishes that preliminary orders in mandamus are authorized but only for limited purposes of preserving status quo or protecting jurisdiction.
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Join FLexlaw to unlock all legal intelligenceRespondent Militana sought mandamus relief against the University of Miami to compel his admission to medical school as a fourth-year student. During …
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In a mandamus proceeding below, the trial judge, after return had been made to the alternative writ but before final hearing, entered an order pendente lite, requiring the petitioners to admit the respondent forthwith to the medical school as a fourth year student. A petition for writ of certiorari has been filed in this court seeking the review and quashal of the order pendente lite.
The merits of the mandamus proceedings are not before us for decision. By order of this court the effectiveness of the order pendente lite has been stayed pending disposition of the petition for writ of certiorari. Oral argument was heard by the court on the petitioners’ motion for supersedeas or stay and after the submission of briefs by both parties, the court, pursuant to Rule 4.5 (§') (2), Florida Appellate Rules, 31 F.S.A., has considered the merits of the petition for writ of certiorari.
The Constitution of Florida, Article V, Section 6(3), F.S.A., grants to circuit courts “ * * * power to issue writs of mandamus * * * and all writs necessary or proper to the complete exercise of their jurisdiction.” See City of North Miami v. Engel, Fla.App.1959, 109 So.2d 33. The order pendente lite requiring the petitioners to forthwith admit the respondent was mandatory in character and for all practical purposes, effectuated the command of the alternative writ and the return thereto. The issuance of provisional mandatory or prohibitory orders during the course of mandamus proceedings is not without authority or precedent. Such orders are authorized for the preservation of the status quo, to protect the court in the complete exercise of its jurisdiction or to effectuate its final judgment. See Article V, Section 6(3), Constitution of Florida; City of North Miami v. Engel, supra; 21 Fla.Jur., Mandamus, § 128; 55 C.J.S. Mandamus § 329; and Tobin v. Serna, Tex.Civ.App., 277 S.W.2d 176. The order under review does not purport to accomplish any of these purposes.
Since the order entered September 22, 1964, recorded in Circuit Court Minute Book 657, page 577, was without legal basis and a departure from the essential requirements of the law, it follows that the same should be and is hereby quashed.
It is so ordered.
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Citator
Cited By
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Univ. OF Miami v. Militana, 184 So. 2d 701 (Fla. 3d DCA 1966)…order pendente lite requiring the respondents, who are the appellants here, to enroll the appellee in the Medical School as a fourth year student. This interlocutory order was reviewed by this Court in University of Miami v. Militana, Fla.App.1964, 168 So. 2d 88, in which we held that the order pendente lite requiring that the petitioner be admitted forthwith to the Medical School was without legal basis. We quashed the order. Subsequently, upon the entry of the order granting the peremptory writ, a notice…
Authorities Cited
- City OF N. Miami v. Engel, 109 So. 2d 33 (Fla. 3d DCA 1959)