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. 

1st DCA - statute can create "established law" for mandamus

In this opinion , issued last week, the 1st DCA held that in the context of a mandamus action, the court can look at and interpret an applicable statute to determine whether "established law" (i.e., the statute) creates the clear legal right and legal duty that must be present.

Seems that there's a statute that requires (shall languge throughout) the Dep't of Corrections to help inmates being released get the paperwork together that's necessary for the restoration of their civil rights.  They just didn't do it and in fact appear to have refused to comply with the statute.  (for those of you old enough to remember early Steve Martin:  Whoops, I FORGOT to pay my taxes; well excuuuuseee meeee!) The Florida Caucus of Black Legislators went in on behalf of the inmates to get an order compelling the Dep't to do its duty under the statute.

Department argued that they didn't have to, (nyah nyah nyah - you can hear the temper of the Department's brief in eh Court's opinion):  the statute has some ambiguities and they apparently claimed that because they were part of teh executive branch and because the governor and cabinet have sole (consitutional) authority over grants of clemency/restoration of rights, they didn't have to follow this statute and the legislature and courts would be violating the seperation of powers if they meddled.

The Court held that 1) it's OK for a reviewing court to resolve ambiguities in order to determine whether a statute provides clear legal duties, etc. -- the existence of DISCRETION, not ambiguity is what would relieve the Department of a duty.

It also instructed the Department that as part of the executive branch it was under the rule of the legislature and that even if clemency was discretionary and vested with the Gov, ensuring that inmates got applications and help in filing them was NOT any kind of violation of the seperation of powers.

Good case for land use attorneys to put under your belts for two reasons:  1) mandamus is not like a 1983 action where you need a court case dead on point before an official is going to be liable; if a statute, rule or ordinance create a "shall" kind of duty, that's enough; and 2) a mix of contingent and obligatory duties in the law doesn't negate the duty, even if a court is going to have to interpret the statute to resolve ambiguities or contingencies (example:  "if the application is found to be complete, the xxxx shall make a determination within 15 days" - contingent but mandatory).

2055 Wood Street, Suite 206, Sarasota, FL 34237      Phone (941) 681-8700

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.