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

Land Use and Local Government Law and Litigation

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4th DCA Eats Away at Due Process Right to Competent Judge

In Dep't of Motor Vehicles v Griffin, the 4th held in this opinion that there is no due process right to a lawyer-judge in these quasi-criminal hearings. It overturned several circuit court cases that held to the contrary, based on the circuit judge's far greater experience with the extremely poor record of the Department's non-lawyer judges in providing fair hearings and decisions.

I'll get to the land use implications in a minute. But basically, the core of the case is bad for due process. The court completely misinterprets Article V, s 8 and Treiman v. State ex rel. Miner to hold that the use of non-lawyer judges does not implicate due process. In fact, the opinion in Treiman greatly restricted the use of non-lawyer judges in criminal cases:

We hold that those [elected non lawyer] judges who properly complete the educational program, including examinations to test their proficiency, may preside over criminal misdemeanor cases as described above. Our ruling operates prospectively only, following the date this opinion becomes final. The use of recently elected nonlawyer county judges in criminal proceedings depends upon their being properly trained and educated in the law. The completion by the newly elected nonlawyer county judges of a training program similar to the current program is
constitutionally necessary for them to be able to discharge their criminal constitutional duties. Anything less fails to meet our construction of relevant due process safeguards.

Treiman v. State ex rel. Miner 343 So.2d 819, *824 (Fla. 1977)


The Florida Supreme Court therefore in fact held that there must be a demonstration of competence on the part of a non-lawyer judge in order to meet due process concerns.

That was a criminal case, and the driver's license cases here are merely penal/quasi-criminal (loss of right to driver's license), but the due process issue is the same: under what circumstances may a non-lawyer conduct penal hearings. Moreover the court in Griffin basically holds that the only way to demonstrate a failure of due process in the administrative judge's competency is to show that due process was violated in the hearing. Great.

The problem is that there is a long record of completely abysmal performances by these administrative "judges," who have repeatedly been held to conduct shoddy hearings and reversed for failure to be a neutral advocate. These "judges" are Department employees and clearly view their role as applying or upholding suspensions at all costs.

I challenge anyone to review the Florida Law Weekly Supplement regarding DMV suspension cases and come to a contrary conclusion. The end of this decision demonstrates it: it reverses all of the lower court determinations that the use of non-lawyer ALJ's violate due process, but upheld the court in Griffin's determination that the judge improperly acted as an advocate for the Department by halting the hearing to go and retrieve evidence for the Division's witness. There are probably a dozen reported cases where cert has been granted based on the hearing officer abandoning the impartial role required and querying witnesses directly, interfering with the presentation of the petitioner's case, and otherwise behaving as an advocate for the DMV. There are whole sets of cases where the DMV "judges" have suspended driver's licenses despite the failure of the local agency to demonstrate that the Breathalyzer's were properly maintained in accordance with Rules and Statutes.

In Lovely v. DMV the circuit court sanctioned the Dep't and the hearing officer under its inherent authority for accepting a probably cause affadavit when previous decisions of the circuit court had determined that the form of the affadavit was legally insufficient. In Walker v DMV, attorneys fees were levied because, again after several previous remands, the hearing officer refused to review the tape of the encounter between the citizen and the officer.

This goes on in the context of what would be contemptuous behaviour in any other setting. Officers and the DMV technicians routinely fail to comply with subpoenas to produce relevant documents at the hearings. The "judges" routinely allow this and don't dismiss the cases; sometime continuances are offered; and if one is not demanded, the appellate courts won't overturn the decision. So the game by the DMV and the officers is to drag the process out by refusing to comply with the law and to place the extreme economic burden on the citizen of paying a lawyer to attend multiple hearings - basically force an economic decision to waive their rights. It's an absolutely clear pattern of conduct and completely abhorrent to any sense of propriety or justice, but it's effectively sanctioned by these DMV "judges" and the courts.

What's the link to land use? Well, how many penal proceedings do boards of zoning appeals/adjustments/code enforcement boards/contractor licensing boards hold every day? Without impugning at all the motivations of the citizens who volunteer to serve on these boards, the due process provided at these hearings is spotty at best.

Citizens who appear before hearing officers or boards that impose penal sanctions should be guaranteed the right to a trained and impartial tribunal. While it may be that the use of appropriately trained non-lawyers is appropriate, as the Florida Supreme Court held in Treiman, the Fourth's cavalier and incomplete treatment of the due process issues in this case does no one a service.

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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.