Tuesday, May 11, 2004

Getting proper findings - you may need to ask for them

Here is a case (albeit in a divorce setting) addressing the need/use for written findings and the need to ask for them.

As frequent readers are aware, it is my firm belief that due process requires that quasi-judicial decisions be accompanied by findings of fact (see the cases cited by Justice Pariente in GBV or even just try searching quasi-judicial plus findings plus due process in Lexis or Westlaw).

In the civil trial context, findings are not absolutely required but are strongly "recommended." I cited a federal court case for this a bit ago, and now here's a Florida case for the same proposition from the 5th. While it found that the findings it needed for effective review were contained or implicit in the opinion, it also held that if they were not, it would have jurisdiction to remand to the lower court to supplement the decision with those findings.

CRITICAL POINT: The 5th agreed with the 3d that the absence of findings was not in and of itself reviewable if the attorney did not object to the order through a motion for rehearing.

PRACTICE POINT: While this case (and the 3d's) doesn't govern quasi-judicial issues on its face, it's an important consideration and I wouldn't trust them NOT to apply it. If you get a decision from a quasi-juidicial panel with no (or cursory) findings, you probably should ask for a rehearing and clarification if you want to challenge the decision later on the grounds that the actual decision and findings aren't supported by CSE. Be specific. If the board doesn't provide them, you may have a slam dunk for a remand issue (unless it's a rezoning and they cite Snyder and GBV with approval). BUT also remember that while a quasi-judicial body has the authority to grant a rehearing or to reconsider its decision within the 30 day challenge period unless the decision has been challenged(see Smull), filing such a request doens't stay or toll the 30 day window for your cert petition.

A more difficult tactical question - if you win the QJ hearing but have no findings and expect that opponents will challenge in cert, do you ask for findings or not? Probably depends on whether you think that there is a CSE issue they can pick at.

Tx to Matt at Abstract Appeal for picking up on this one.

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