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. 

Due Process/Bias Issues When Bd or Staff Attorney Does Findings

It's a common practice in local qj hearings for the board attorney (we'll get to board/staff role problems in a minute) to prepare a set of "canned" findings for the Board to adopt. Almost no local procedures have a process (like in the FAPA) where the parties file proposed findings/conclusions.

Well, here are a couple of cases that support the idea that the FAPA proposed order process (both sides get to do them, get to comment) may be a due process requirement and that common practice here is improper. In this case the Florida Supreme Court held that it was improper (uncon/bias/no basis for review) for a judge to adopt findings proposed by one party when the other party had neither the opportunity to review and comment on the proposed findings nor an equal opportunity to present its own. This case has a lot of meat for the proposition that a judge has an obligation to render a complete, independent decision and not simply accept proposed findings/conclusions wholesale. Justice Pariente's concurrence points out that one of the key policy comments in Canakaris demanded that the deference to and discretion of judges needed to be balanced by review that would ensure that decisions were consistent.

And in this case out of the 2d, the Court held that to adopt one side's proposed order without change and without making independent findings on the record created a severe reviewability problem and the conclusion that the judge had delegated his decision making authority to one of the parties.

What are the implications - well, first, these decisions point out the due process basis in many of the FAPA statutory procedures that are all too lacking in the quasi-judicial proceedings before most local boards.

Second, the policy in these cases clearly indicates that it's improper to have a an adjudicatory process that provides for recommended findings from staff without having a chance for the applicant or opponents to put in recommended findings, etc. It is also clear that it is improper for a decision maker to simply vote to accept on (or another) recommended findings: the board must establish an independent basis for its determinations on the record. So there needs to be a process by which the proposed orders are considered fully and fairly before the decision maker issues an opinion.

[Comment - it's also clearly improper in a case where the attorney for the Board is supposedly independent from the staff to have prepared findings ahead of time in an adjudicatory proceeding. How could findings based on the record at the hearing be prepared by the finder of fact or its representative until the close of the evidence? This is one of the areas where there needs to be a clear distinction in process before city/county/special dist commissions between quasi-judicial decisions where this would be completely improper and quasi-legislative decisions where prepared findings would be OK]

Finally, as I've stated elsewhere, where the local procedures are inadequate to protect a party's rights, the party must make its objections known on the record.

PRACTICE POINTS:
1) for all the gov't attorneys out there: start regularizing your quasi-judicial processes and provide for a) either no proposed findings from anyone, or a fair route for all parties to provide them; b) processes by which the Board makes independent findings on the record that would support/explain it adoption of any findings/orders that are proposed.
--- for all the folks out there screaming "my board can't do this" (see all the complaints about Snyder, etc.; the answer is simple: if you can't provide for quasi-judicial hearings and decisions from your boards that comply with due process and review requirements, adopt a hearing officer model. Due process doesn't go away just because there are five or seven judges, so either start having full three day hearings that are serious due process hearings or delegate the authority.

2) for landowner/applicants and 3d parties:
a) prepare a recommended order and give it to the other side(s) at the end of the hearing. The more detailed, the harder time they will have doing something summary and justifying it on review.
b) demand that any and all proposed findings be given equal consideration by the finder of fact.
c) object on the record if the staff has proposed findings but you're not given the same opportunity, or if the Board doesn't discuss them equally, etc. At the very least demand the right to review the findings and present oral or written objections to the Board BEFORE it makes any decisions.
d) object on the record if the Board's attorney has prepared findings before the close of evidence - such findings either are unsupportable or are clear evidence of bias and collusion between the "independent" board attorney giving advice and the "prosecution" role. See Cherry and similar cases.

Local government attorneys I've talked to often operate under the belief that because Matthews v Eldridge states that the formality of due process that must be afforded is dependent on the circumstances, they can avoid the fairness and reviewability standards demanded of due process hearings. Cases like these (and others I've been citing) demonstrate that this is NOT the case: both the "opportunity to be heard" and "fundamental fairness/lack of bias" are CORE due process principle and must be respected.

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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.