Wednesday, July 20, 2005

Revised - More War on Standing

Whoops - first go round on this case, I read the recommended order against the 1st DCA opinon instead of the Department's final order - changes a lot of context b/c the Dep't rejected the judge's attack on non-profit standing. which means that the 1st DCA didn't go along with the attack on non-profit standing. So this post is being heavily revised below, though many of the points are, I believe, still valid because the 1st DCA did adopt without analysis the flawed (I believe) analysis from last years O'Connel and Melzer opinions.

There's a war going on against standing in environmental and land use regulatory cases, and the rights of organizations - whether they're "responsible growth" organizations or the local home builders - to represent the interests of individuals and businesses has been the target of carpet bombing opinions. Administrative Law Judge Don Alexander has been in the forefront of this attack on the historic understanding of the standing provisions of the Growth Management Act.

The 4th DCA joined last year in the O'Connel and Melzer opinons, which (mis) applied the earlier LEAF case to hold that being aggreived enough to challenge a plan amendment in an administrative proceeding didn't guarantee that one would be adversely affected by a loss enough to have standing to appeal. In other words, no judicial review for you!

The most recent case is Florida Wildlife Federation and Friends of the Mantanza v. St. Johns County & the Dep't of Community Affairs. Here's Judge Alexander's recommended order, finding that having members, sending them information, and representing their interests doesn't make a non-profit a "business" with standing. While the logic is surficially complete, it's completely inconsistent with the intent of the statute and earlier cases (see the footnote that tries to distinguish the Lee County case).

Here's the Dep't of Community Affairs Final Order rejecting Judge Alexander's position on non-profit business standing as inconsistent with prior decisions. As a friendly but anonymous poster pointed out, it was this (not the recommended order) that was the subject of the appeal. It's good to know (yeah, Shaw) that the Dep't rejected the analysis.

And here's the 1st DCA opinion dismissing their appeal because the organizations don't have standing. In one paragraph. With no analysis of the statute, legislative history, earlier administrative precedents - just cites to O'Connel and Melzer. What this means is that the organizations didn't satisfy the 1st DCA that they would be adversely affected (enough) to have standing to appeal.

I wrote about why I think the O'Connel and Melzer cases weren't right - it's disheartening to see the 1st DCA not only adopt that logic, but to do so with no analysis of what showing would have to have been made below.

Let's be clear: stupid and ill-founded attacks on comprehensive plan amendments don't do the process any good, eat up huge amounts of time and money and need to be dismissed early and often. But simply making it impossible for citizens to have standing to attack them is only going to fuel the fire for even more destructive and ill-considered forms of action like the Hometown Democracy Amendment.

If the process is too long and expensive, let's amend the APA to having the agency make the transcript again, keep short time frames on hearings, simplify further the rules of evidence, simplify and shorten discovery, and eliminate the need for filing recommended orders and exceptions in order to preserve rights. Make the system faster, cheaper and easier to deal with. But stop screwing around with standing - it's only going to backfire in the end.

When the government gets more freedom to act without effective oversight, we're ALL worse off over the long run.

THANKS to the anonymous poster for getting me on the right order under appeal.

Wednesday, July 06, 2005

I like electronic filing, but this may be going too far

The 4th DCA just posted new electronic filing rules - here's the link.

In addition to requiring all pleadings and transcripts to be filed by email or disk (Word, WordPerfect or PDF), the court is requiring all appendices to petitions to be filed electronically! So now you'll have to get all the stuff that was introduced into the lower record scanned into PDF format if it wasn't electronic to begin with - and there's no exemption for oversize things like maps.

IMHO, that's going a bit overboard, even today. It means that a party to a cert appeal has to go to the official record, get documents that the party did not create or produce and make electronic versions in order to file a cert petition. Some board clerks might not let you do it.

BUT the lesson and direction are clear folks: start putting all of your presentation materials together electronically and burn them to CDs as you're going. File the CD with a paper index for the clerk's benefit that can be used to indicate what documents did or did not actually get entered. Not a big problem in court practice, where the clerk and judge usually do a good job of tracking such things, but generally not (to date) part of practice before local quasi-judicial bodies.

Good case for rules of construction and when they are (and are not) applied

The First DCA posted this opinion on July 5 in Dep't of Revenue v. Lockheed Martin. It's a pretty boring tax case, but it turns on an issue of statutory construction. The opinion includes this very good paragraph on when plain meaning makes it appropriate for a reviewing court to intepret a statute (or ordinance, or comprehensive plan policy) itself, rather than resorting to either the rules of construction or deference to an agency interpretation:

The issue of statutory construction is subject to de novo review. State v.
Burris, 875 So. 2d 408, 410 (Fla. 2004) (citation omitted). Legislative intent
is the polestar that guides a court’s statutory construction analysis. State v.
J.M., 824 So. 2d 105, 109 (Fla. 2002) (citations omitted). When a statute is
clear, a court may not look behind the statute’s plain language or resort to
rules of statutory construction to determine the legislative intent. Burris, 875
So. 2d at 410; see also Overstreet v. State, 629 So. 2d 125, 126 (Fla. 1993)
(noting that legislative intent must be determined primarily from the language
of a statute). This is so because the Legislature is assumed to know the meaning
of the words used in the statute and to have expressed its intent through the
use of the words. Id. It is only when a statute is ambiguous that a court may
resort to the rules of statutory construction. BellSouth Telecomms., Inc. v.
Meeks, 863 So. 2d 287, 289 (Fla. 2003). “‘Ambiguity suggests that reasonable
persons can find different meaning in the same language.’” State v. Huggins, 802
So. 2d 276, 277 (Fla. 2001) (quoting Forsythe v. Longboat Key Beach Erosion
Control Dist., 604 So. 2d 452, 455 (Fla. 1992)). Administrative construction of a statute, the legislative history of the statute’s enactment, and other extraneous matters are properly considered only when the construction of a statute results in a doubtful meaning.
Donato v. Am. Tel. & Tel. Co., 767 So. 2d 1146, 1153 (Fla. 2000); see also Fajardo v. State, 805 So. 2d 961, 963-64 (Fla. 2d DCA 2001) (explaining that although virtually every English sentence contains some level of uncertainty, rules of statutory construction are reserved for cases in which a fair reading of the statute leaves a court in genuine doubt about the correct application of the statute).

So, no deference to a local agency construction of a zoning code or comprehensive plan unless the language is ambiguous (not just vague!).