In what I consider one of the few really bad decisions that I've ever seen from the pen of Judge Sharp, the 5th DCA ruled today that prohibition was generally not available to prevent abuses by local commissions acting quasi-judicially and in particular to deal with the need to recuse commissioners for bias. Instead, the petitioner has to go before the quasi-judicial body, present its bias complaints, and then raise the matter as a due process concern in a later cert petition.
FLORIDA WATER SVCS. CORP. v. ROBINSON, 5D02-2071 (Fla.App. 5 Dist. 2003) Get a copy by clicking : FlaWaterSvcs_v_Robinson.doc
This is not only bad policy, it doesn't track with common-law principles that are well established in Florida. The Court ignored the very clear language in State ex rel Rowlett, 170 So. 311 (Fla 1936), which adopted the following language from Justice Davis' concurrence in State ex rel Williams v Whitman, 156 So. 705 (Fla 1934) holding that prohibition was available as against a quasi-judicial tribunal:
"To the extent, therefore, that an administrative statutory tribunal or agency is vested with statutory power to make decisions having a judicial character or attribute, as distinguished from mere exercise of delegated legislative or executive functions under the law, resort may be had to the courts of the land for the purpose of review, whether any special method of appeal be provided or not, and in such cases the courts of general jurisdiction to whom complaint is addressed against an alleged improvident, erroneous, or unjustified administrative decision shown to divest or impair some vested legal right, unless abrogated or modified, will grant an aggrieved party relief against quasi-judicial decisions of such administrative agencies, by means of those available common-law processes adapted and designed to be used by the courts to restrain excessive or unauthorized exercises of powers on the part of subordinate jurisdictions or quasi-judicial tribunals." And in State, ex rel. Swearingen, v. Railroad Commissioners of Florida, 79 Fla. 526, 84 So. 444, this Court said that the writ of prohibition "lies against any person or persons assuming to exercise judicial or quasi-judicial powers, although not strictly or technically a court." It must also be borne in mind that in Curtis v. Albritton, 101 Fla. 853, 132 So. 677, we said that the writ of prohibition is the counterpart of mandamus in the manner in which it operates, being negative, while mandamus is positive in its commands, and that in the following cases, writs of mandamus against the Respondent Board have been sustained: State, ex rel. Tullidge, v. Hollingsworth, 103 Fla. 801, 138 So. 372; Idem, 108 Fla. 607, 146 So. 660; State, ex rel. Page, v. Hollingsworth, 115 Fla. 851, 156 So. 286; Idem, 117 Fla. 288, 157 So. 887. So that we hold that in cases where the Respondent Board is acting without jurisdiction or is exceeding its jurisdiction in not proceeding in accordance with the essential requirements of law, those common law processes adapted and designed to restrain such lack of jurisdiction or excessive exercise of power, including the remedy by prohibition, are proper. State, ex rel. Crabtree, v. Porter, 111 Fla. 621, 149 So. 610
It is clear from this case and others, such as Greenberg v Bd of Dentistry, 297 So. 2d 628 (Fla 1st DCA 1974) and the famous State v Falls Chase Taxing District424 So.2d 787 (Fla. 1st DCA 1982), that the courts do have and must have plenary power to control the quasi-judicial activities of agencies and local governments. In the absense of a general law creating a local government APA, the courts should use all of these tools to prevent miscarriages of justice, not force litigants into the unfair position of having to bear the risk and expense of multiple arenas of litigation in order to get fair and proper treatment before a local administrative body.
Here are some of those opinions:
I can only hope that the decision of the 5th was made without the benefit of these cases being cited and that the issue here makes its way before the Supreme Court sometime soon.