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. 

Cutting off evidence from one side a DP violation

In another interesting case from family law, the 2d released this opinion - quashing a circuit court decision in a "shelter" case.

Essentially, the judge cut off the father during the informal hearing provided for by statute and rule, and didn't allow him to enter evidence. Rationale: 1) he was allowed to rule on written or hearsay evidence, and 2) "we don't do 3 hour shelter hearings here."

Gosh that sounds like the rationale that county/city commissioners (or actually the local government attorneys) use to justify using non-competent records (non-sworn or cross examined testimony or documents received by the planning department or planning commission) and limiting the time that an application - or 3d party - gets to present their case.

The 2d analysed this petition as one that implicated due process and held that even though the language of the rule was permissive in terms of the evidence the judge could consider, the statute was clear that every interested party could introduce evidence at the hearing. It held that:

Section 39.402 and rule 8.305 afford parents due process in judicial
proceedings in matters involving the State's temporary removal of children from the
home. In this case, the circuit court erred by disregarding the statutory and rule
provisions affording the parents a right to be heard and to present evidence at the shelter
hearing


So - here the judge erred in not interpreting the statute and rule so as to preserve the due process provided. But court clearly is holding that the failure to properly interpret the statute was a due process violation.

Implication? Where due process rights are implicated, you can't scimp on the right to be heard, even if due process allows a "less formal" hearing. I believe that commission rules that limit one side (or the other) to 20 minutes in a rezoning hearing - or 5 minutes to opponents - violate the right to be heard and to present evidence. If the commissions don't want to provide a proper due process hearing, let them use hearing officers.

Oh - that goes for the Gov and Cabinet, too, when they sit in an adjudicatory role.

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