Wednesday, December 28, 2005

Very Important Decision on Initiating Certiorari Review

A must read for all land use litigators:

In Concerned Citizens of Bayshore et al v. Lee County & US Homes, et al, here's the opinion, the 2d DCA did us all a favor by clarifying a few key issues in initiating certiorari review.

Concerned Citizens filed a cert petition challenging a rezoning granted to US Homes, but did not name US Homes as a party (in the caption) or serve them within 30 days. US Homes moved to dismiss for failure to name an indispensable party and the trial court granted the motion, even though petitioners were willing to amend to name US Homes, and had served them by mail.

WRONG. Under a number of cases (cited in the opinion), the landowner is not an indispensable party, as the opinion correctly points out.

But the opinion went beyond that and held that R Civ P 1.630 governs the caption, parties and service of a common law cert petition, not R. App P. 9.100 (b) -- which as near as I can tell was a case and opinion of first impression, even though the rules have been around for a long time. Under that rule, you file your writ (and record), and if the petition sets forth a prima facie case, the court enters a "summons," which then must be served as provided by R. Civ. P. 1.080 (b) (the general service by mail, hand, fax rule - rather than the service of process rule). The comment to R. 1.630 indicates that if the record isn't available, the petitioner may request additional time to file it - a position held in case law under the appellate rules, but not explicit.

One reason this is important is that R. App. P. 9.100 (b) provided that all parties to an action below are to be named as respondents; this created the petard on which the court hoisted Citizens in the action below.

But the court went even further and noted that R. App. P. 9.100 (f) does apply and that US Homes was a party respondent under R App. P. 1.020 (g)(4), and therefore entitled to participate with or without service by Citizens. NOTE: this implies that anyone who participates in a quasi-judicial hearing and establishes a record basis for standing (common law/special injury or by local ordinance) can pile into a cert case as a respondent - even if they're actually supporting the petitioner, and be a party regardless of the caption and initial service.
The opinion does leave a couple of critical holes: first, whether cert petitions, responses and replies are governed for length, format, etc. by F R App P 9.100 f-l; for example, is the "record" that must be transmitted according to R Civ P 1.630 an "appendix" as required by R. App. P. 9.100(g)? So we still have a ways to go before all of the kinks are worked out.
I've been very frustrated by a number of PCA/PCD opinions from the 2d that dodged important issues and was afraid that the court was going to do that in this case as well (I know all of the private party litigators in this one, so knew about the case). So, thanks to the panel and the court for issuing an opinion that clarifies and simplifies what had emerged as a bit of a trap for petitioners in this area. It's a MUST READ.

Just for fun, here's the text of the appliable rules:

(a) Applicability. This rule applies to actions for the issuance of writs of mandamus, prohibition, quo warranto, certiorari, and habeas corpus.

(b) Initial Pleading. The initial pleading shall be a complaint. It shall contain:
(1) the facts on which the plaintiff relies for relief;
(2) a request for the relief sought; and
(3) if desired, argument in support of the petition with citations of authority.

The caption shall show the action filed in the name of the plaintiff in all cases and not on the relation of the state. When the complaint seeks a writ directed to a lower court or to a governmental or administrative agency, a copy of as much of the record as is necessary to support the plaintiff’s complaint shall be attached.

(c) Time. A complaint shall be filed within the time provided by law, except that a complaint for common law certiorari shall be filed within 30 days of rendition of the matter sought to be reviewed.

(d) Process. If the complaint shows a prima facie case for relief, the court shall issue:
(1) a summons in certiorari;
(2) an order nisi in prohibition;
(3) an alternative writ in mandamus that may incorporate the complaint by reference only;
(4) a writ of quo warranto; or
(5) a writ of habeas corpus.

The writ shall be served in the manner prescribed by law, except the summons in certiorari shall be served as provided in rule 1.080(b).

(e) Response. Defendant shall respond to the writ as provided in rule 1.140, but the answer in quo warranto shall show better title to the office when the writ seeks an adjudication of the right to an office held by the defendant.

Court Commentary
1984 Amendment. Rule 1.630 replaces rules and statutes used before 1980 when the present Florida Rules of Appellate Procedure were adopted. Experience has shown that rule 9.100 is not designed for use in trial court. The times for proceeding, the methods of proceeding, and the general nature of the procedure is appellate and presumes that the proceeding is basically an appellate proceeding. When the extraordinary remedies are sought in the trial court, these items do not usually exist and thus the rule is difficult to apply. The uniform procedure concept of rule 9.100 has been retained with changes making the procedure fit trial court procedure. The requirement of attaching a copy of the record in subdivision (b) may not be possible within the time allowed for the initial pleading because of the unavailability of the record. In that event the plaintiff should file a motion to extend the time to allow the preparation of the record and supply it when prepared. The filing of a motion to extend the time should be sufficient to extend it until the motion can be decided by the court.

(a) Service; When Required. Unless the court otherwise orders, every pleading subsequent to the initial pleading and every other paper filed in the action, except applications for witness subpoena, shall be served on each party. No service need be made on parties against whom a default has been entered, except that pleadings asserting new or additional claims against them shall be served in the manner provided for service of summons.
(b) Service; How Made. When service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the court. Service on the attorney or party shall be made by delivering a copy or mailing it to the attorney or the party at the last known address or, if no address is known, by leaving it with the clerk of the court. Service by mail shall be complete upon mailing. Delivery of a copy within this rule shall be complete upon: (1) handing it to the attorney or to the party, (2) leaving it at the attorney’s or party’s office with a clerk or other person in charge thereof, (3) if there is no one in charge, leaving it in a conspicuous place therein, (4) if the office is closed or the person to be served has no office, leaving it at the person’s usual place of abode with some person of his or her family above 15 years of age and informing such person of the contents, or (5) transmitting it by facsimile to the attorney’s or party’s office with a cover sheet containing the sender’s name, firm, address, telephone number, and facsimile number, and the number of pages transmitted. When service is made by facsimile, a copy shall also be served by any other method permitted by this rule. Facsimile service occurs when transmission is complete. Service by delivery after 5:00 p.m. shall be deemed to have been made on the next day that is not a Saturday, Sunday, or legal holiday.

Tuesday, December 27, 2005

A Search and Seizure Opinion (Relevant to Land Use) So Bad It's Terrifying - and Ethical Limits Prevent Me From Saying What I Really Think

As an attorney, I have an ethical obligation not to disparage courts or judges in a manner that is prejudicial to the administration of justice. That obligation doesn't prevent me from criticizing bad opinions, but does require me to avoid overheated rhetoric.

This opinion from the 4th DCA, in Vaughn v. Dep't of Agriculture et al, tests my self-control. The 4th upheld a trial court's dismissal of s.1983 damage claims against individual inspectors of the Dep't of Agriculture and a Broward County Deputy Sheriff. The inspectors invaded Vaughn's property without a warrant and had him arrested for demanding one. They tore down sections of Vaughn's fence and gate, cut down and ground his citrus trees, and had him arrested for objecting to this. The Deputy handcuffed and arrested Vaughn for insisting that the inspectors needed a warrant to enter his property.

The 4th, INCREDIBLY, (see Judge Farmer's dissent, which got the law right) found the inspectors and deputy entitled to immunity on the basis that the law requiring a warrant to engage in these activities wasn't sufficiently clear to justify maintaining suits against the individuals. The majority basically takes the position that until a specific law, regulation or practice has been specifically found to violate the Fourth Amendment (or presumably any other constitutional right), you can't hold an executive actor personally responsible for violating that right. This is a gross distortion of the underlying doctrine from Harlow v. Fitzgerald, and an even worse interpretation of the relevant 4th Amendment rulings.

Basically, this decision completely destroys any integrity to the Fourth Amendment. Sure, any evidence that the officers got through this invasion would be excluded from a criminal proceeding - creating an institutional incentive not to invade and abuse Fourth Amendment rights. Sure the Department and Sheriff's office are still on the line. But without individual liability and responsibilty, there's no reason for the actual perpetrators of what the court agreed was a constitutional violation to avoid those violations. In other words, watch out - cops, code enforcment officers, anyone with the "color" of authority has free reign to break down your fence, arrest you, and generally abuse you, and you have no action against them personally. Where's the disincentive for these folks to abuse you?

It's also telling that in some 4th amendment cases, the courts have limited the scope of the exclusionary rule, in part based on arguments that personal liability for abuses would provide a deterrant to the bad conduct without the social penalty of allowing a criminal to go free. So the constitution now gets squeeezed from both sides.

The "the law said I could" argument didn't fly at Nuremburg for German sargents who abused the human rights of Jews and others, but apparently it's good enough for American agriculture inspectors and deputies. While invading someone's property and cutting their trees down doesn't in any way rise to the same level of human rights abuse that the Holocaust represents, if these administrative and law enforcement officers don't respect the 4th Amendment, if there isn't a personal sense of limitation and respect for individidual rights on the parts of these individuals, then the constitution is dead.

Read the dissent to get the full flavor of the attitude, behavior and tactics of the "public servants" involved and choose your own adjectives to describe them. Taste and ethics constrain me, because if I described the behavior as I'd like, I'd also end up noting the way that the court has permitted and perhaps even facilitated such behavior, and that might cross the line.

Clearly, in search and siezure as in other violations of our constitutional rights by public officials, we cannot rely on the federal civil rights laws (and the US Constitution and Bill of Rights) to provide adequate protection.

What to do? We need a Florida version of section 1983 that holds state and local agencies and actors liable for violations of the Florida constitution, with sections that make it clear that it is to be interpreted liberally to protect the rights of citizens - not like the cramped readings of s.1983 and the core rights that the federal courts have put on section 1983, basically to avoid hearing the cases.

Saturday, December 17, 2005

Improving Growth Managment through Better Procedures, Standards and Judicial Review

Last year, I posted and circulated a suggestion for a set of minimal standards for the conduct and review of quasi-judicial decisions at the local level.

Here's this year's draft.

I've tweaked a few things, including making this part of Chapter 163 instead of Chapter 120 - maybe it'll get better play as a growth management bill.

I've also added a few suggested changes to complement the 2002 legislation which gave landowners/developers standing, over-ruling the Parker case. Biggest tweaks to the substance of Chapter 163: clarify the understanding that the denial of a development order that is consistent with the comprehensive plan is inconsistent with the comprehensive plan - which was the intention but not the reality. I also suggest clarifying that development orders must be consistent only with those elements of the plan that provide clear standards or objective criteria - the general rule in proper delegations, but again difficult to enforce. Finally, I suggest getting rid of the useless administrative challenge to land development regulations and replacing it with a proper de novo action in circuit court.

Please provide comments -- I'll be sending it along to the house GM committee and also to Sen. Mike Bennett.