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. 

History - the strange case of Dr. Mack

So in one of those situations where you're researching something else and hit an unexpected opinion, last week I ran into the strange case of Dr. Roy Mack and his long, long fight with the Florida Bd. of Dentistry. Seems that Dr. Mack was accused back in the '60s of advertising low prices (oh, and maybe taking unfair liberties with a female patient) and was subjected to a discplinary "hearing" before the board.

The 3d DCA denied cert with
this opinion, reciting competent, substantial evidence and DeGroot v. Sheffield. Florida Supremes deny cert. (this was pre-the amends to Art. V)

Then it gets interesting - Dr. Mack goes to federal court under s. 1983 - and this is before a bunch of the cases under which the federal courts avoid policing the state courts where ever possible.

The federal district court overturns on due process grounds in
this opinion, citing a number of deficiencies, but focusing on the highly problematic role of the Board's lawyer (Cherry, a number of years early), who was doing things like making objections and then telling the Chair how to rule on them.

The 5th Circuit (yes, these cases are that old), then upholds the District Court's reversal, but on different grounds in
this opinion. It declines to hold that the lawyer problem was "per se" a due process violation, but basically says that the whole hearing was a farce and did not comply with due process. More and more facts come out regarding the "irregular" conduct of the hearing.

The Board then appeals to the US Supreme Court, complaining about the federal courts meddling in such matters. The Supremes deny cert, but with
this dissent written by White, who asks the question (answered shortly thereafter) of whether s. 1983 should operate to provide a kind of "civil habeus corpus" review of civil decisions in federal court.

The real lesson here comes from the comparison of the 3d DCA case with the federal case. It's a complete whitewash, using policies that support the discretion of agencies and quasi-judical boards. When you then read the federal cases and realize what happened, one can't help but believe that it might be a good thing to have effective federal court oversight over state court decisions in civil rights matters.

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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.