LAW OFFICE OF ROBERT K. LINCOLN, P.A.

Land Use and Local Government Law and Litigation

The Law Office of Robert K. Lincoln, P.A.  provides legal services to private and public entities involved in complex land use disputes.  Hiring an attorney is an important decision that should not be based solely upon advertisements.  Before you decide, ask and I will provide free information about my experience and qualifications. 

More cert confusion - and a simple remedy

The 2d DCA released a case last week that demonstrates just how convoluted the standards of review are in cert cases. The case involved an eviction trial by the Tampa Housing Authority. At the end of the trial the tenant lost and moved to set aside the judgment. The judge issued an order for a new trial - sua sponte - on the basis that one of the jurors had slept through parts of the trial.

Cert to the circuit court ensued and the Housing Authority lost.

Cert to the 2d ensued and the Housing Authority lost again - Tampa Housing Auth v Burton

What's interesting is to compare the court's analysis here with the analysis in the recent Sarasota County case. Ulitmately, the court found that because the result of the order was the Authority would still get its (second) day in court, there wasn't any fundamental miscarriage of justice - here's the scary paragraph:

Unlike application of incorrect law, misapplication of correct law by a circuit
court sitting in its appellate capacity generally does constitute a violation of clearly
established law resulting in a miscarriage of justice. Ivey, 774 So. 2d at 682. Thus,
even if there is legal error in the circuit court's decision that the trial court did not abuse
its discretion in granting a new trial, we are unable to conclude that this is one of "those
few extreme cases where the appellate court's decision is so erroneous that justice
requires that it be corrected." See Combs v. State, 436 So. 2d 93, 95 (Fla. 1983).


So, essentially, the 2d DCA is saying that in the case of 2d tier cert review, circuit court errors in applying the law should only be corrected if the are SO erroneous that justice requries them to be fixed. But that's not really consistent with what happened in Sarasota, where the effect of the circuit court's quashal of the denial of the rezoning wouldn't have been to force the County to rezone the land, but to require the County Commission to re-open the hearing and redecide the matter based on the application of the correct law (e.g. just the plan as it existed on that date) and also to apply the proper facts.

What we really come to is that the whole "miscarriage of justice" type argument on 2d tier review - which technically applies to first tier review as well - has produced what amounts to unfettered discretion on the part of courts faced with a petition for cert to deny them on completely subjective grouds, regardless of how badly screwed up the proceeding or determination was below.

The fix? Really simple: the LEGISLATURE should provide a uniform basis for APPEALING local administrative determinations to circuit courts. It should provide for appeals from quasi-judical decisions with the same remedy provisions as are found in 120.68 (so the court can actually get the situation fixed), and for de novo review of local administrative decisions that don't have the full panolply of due process protections from the local government. It could provide for expedited discovery and adminstrative type rules of evidence in the latter cases to speed the process and lessen the expense; it should also allow the circuit court to refer those de novo cases to a special master for determination. Then we'd get much more consistent review for legal error and a clear and consistent set of playing rules for all.

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Hiring an attorney is an important decision that should not be based solely upon advertisements. Before you decide, ask and I will send you free written information about my qualifications and experience. Additionally, the comments, statements and articles contained herein are general in nature and should not be relied upon as a basis for any legal opinion, action or conclusion on the part of the reader with respect to any particular set of facts or circumstances, or to establish an attorney-client relationship between us.