Sunday, September 25, 2005

Formalizing QJ Processes: You Must Object to Preserve Right to Review

The 3d DCA issued this opinion in Clear Channel v. City of North Bay Village, involving a cell tower. Clear Channel lost before the City Commission, and petitioned for cert, which was denied by the trial court based on waiver (really short, useless lower court opinion, which I'll append below). Clear Channel took it up to the 3d DCA which upheld the lower court, finding that Clear Channel's questioning of a witness did not establish and preserve their objection.

Now, it has long been the law that ANY party must raise issues in the hearing in order to preserve them for review. What this case seems to add is that you must use the magic words during the hearing. Here's the relevant paragraph from the opinion:

Appellate review is confined to issues decided adversely to appellantÂ?s position, or issues that were preserved with a sufficiently specific objection below. Ferguson v. State, 417 So. 2d 639, 642 (Fla. 1982)(holding that objections must be made with sufficient specificity to apprise the trial court of the potential error and to preserve the point for appellate review; general objections are insufficient); State v. Barber, 301 So. 2d 7, 9 (Fla. 1974)(holding that Â?[a]n appellate court must confine itself to a review of only those questions which were before the trial court and upon which a ruling adverse to the appealing party was madeÂ?); Leonard v. State, 423 So. 2d 594 (Fla. 3d DCA 1982); Moore v. State, 418 So. 2d 435 (Fla. 3d DCA 1982); Snead v. State, 415 So. 2d 887 (Fla. 5th DCA 1982). The purpose for requiring a contemporaneous objection is to put the trial judge on notice of a possible error, to afford an opportunity to correct the error early in the proceedings, and to prevent a litigant from not challenging an error so that he or she may later use it for tactical advantage. Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182 (Fla. 3d DCA 2005); Crumbley v. State, 876 So. 2d 599 (Fla. 5th DCA 2004); Fincke v. Peeples, 476 So. 2d 1319, 1322 (Fla. 4th DCA 1985). (emphasis added)

Leaving for a moment the problems raised by tabsencense of formal findings to determine whether a decision was or was not effected by an error, this opinion's inclusion of the "contemporaneous objection" language is clearly indicating that a party (or attorney representing a party) in a quasi-judicial proceeding must have and use the opportunity to object to evidentiary or other errors as the proceeding progresses.

Does this extend to objecting that evidence from neighbors is not relevant, is hearsay, or is otherwise incompetent? Probably.

Does this extend to objecting or raising the claim that a denial (which you don't know that you're going to get) would be contrary to prior decisions of the board and therefore a violation of due process or equal protection? Again, I'd say so.

Ok, so how does this work when the hearing is conducted by people coming up to the podium one at a time to speak, with no "table" for the applicant and staff to sit at and comment "contemporaneously?" Basically, you have to continually jump and down from the seats and not only interrupt the witness but also get the attention of the chairperson at the same time.

Where the local rules or ordinances don't provide the means and manner for cross examination, objection and the resolution of issues, you'd also better object to that at the outset as well. The bottom line is that most local quasi-judicial processesess are constitutionally deficient because the processes are not well defined or described in this areas, but the ordinances are a) valid until challenged, and b) as we see here, deficiencies aren't reviewable if you don't object on the record.

BTW - Here's the order below. In neither this nor the DCA decision do we ever get to find out what the error complained of was.

CLEAR CHANNEL COMMUNICATIONS, INC., and FANE LOZMAN, Petitioners, v. CITY OF NORTH BAY VILLAGE, a municipal corporation, and CASA MARINA DEVELOPMENT, LLC, Respondents. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 04-456AP. L.C. Case No. S630-556-55-243-0. June 15, 2005.

(Before SIEGEL, SCHWARTZ, COHEN, JJ.)

(Per Curiam.) The Petition for Writ of Certiorari is denied. Petitioners failed to preserve the error about which they now complain during the commission hearing. There was no departure from the essential requirements of the law since the record is replete with competent substantial evidence to support the commission's decision.
(SIEGEL, SCHWARTZ and COHEN, JJ. concur.)

1 comment:

  1. David Foley, Orlando4:19 PM

    Is it possible the 3rd DCA violated Article V, Section 2(a) of the Florida Constitution – "The supreme court shall adopt rules for the practice and procedure in all courts"?

    Is it not "soley within the province" of the supreme court to make rules of procedure for appellate review, even of quasi-judicial action? State v. McFadden, 772 So.2d 1209 (2000)

    Can the 3rd DCA usurp that authority by citing jury trial cases to support its contention that objections before a quasi-judicial board must be contemporaneous?

    And how is it the appellate court can determine that a litigant is on notice of the requisites of contemporaneous objection, the consequences of failure to object, or the proper method for obtaining a reviewable ruling on an objection, if the quasi-judicial board has enacted no procedure for its hearings, or in particular for contemporaneous objection?

    DWF, Orlando

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