Why Cert Fails: You Have to Let the Agency Violate Your Rights Before Complaining

In Florida Department of Highways v. Tidey, the 4th DCA overturned the circuit court's grant of a writ of prohibition that prevented the Department from using its "hearing officers" to sit on Tidey's case. The circuit court heard the testimony of at least 4 attorneys who practice before the Department regarding pervasive, consistent, and orchestrated violations of due process before the Department's non-lawyer hearing officers.

No matter, says the District Court. Even if they are completely incompetent, prejudiced, and directed by their employer to conduct hearings in a manner that violate the rights of those before them, your only remedy is to go to the hearing before the unfair and incompetent hearing officer, wait for them to violate your rights, and try to raise your issues on a case and fact specific basis for later certiorari review. Don't forget to raise specific objections on the record, and don't forget to keep asking for continuances, even if the Department fails to produce suppoena'd records or the police officer fails to show up. In other words, every procedural trap will be laid before you and you must litigate your case perfectly in order to maintain any abilty to receive judicial review, while the Department can screw around with your case at will.

What it comes down to is that drivers in Florida face about the same due process challenges as accused terrorists held in Guantanamo Bay. Well, maybe more, 'cause our courts of appeal are on the state's side.

What's the link to land use? Well do you think the average city/county commissioner cares any more about due process than these DMV hearing officers? Do you think that the due process violations that occur on a daily basis are any less pervasive and invidious?

WOW - 4th Circuit Judge Finally Has Enough of Unfair DMV Hearing Officers!

OK, here's a due process and judicial review showdown in the making.

Our local government attorney friends LOVE citing G.B.V. on the point that a reviewing court can only quash in a petition for cert. But what about when the lower tribunal fails to adhere to the law of the case, or - as in the case below - continually fails to provide fair hearings?

In this opinion, the 4th Circuit Judge takes on the Division for the unprofessional and unfair behavior of its (non attorney, clearly not qualified) hearing officer, and not only quashes but orders the Division to restore the Petitioner's license.

So when the 1st DCA quashes this, will we finally get a case before the Supremes where they can reconsider their position in light of the clear failure of so many, many, many lower tribunals to play by the rules? The "remand only" rule was created in, and supported by, the context of FORMAL quasi-judicial proceedings, with real rules, staffs with attorneys, and formal fact finding and general good behavior. That is, the entire rule is predicated on the idea that the lower tribunals generally try and do provide due process, and are committed to implementing the rule of law.

Unfortunately, that's just not true with these Division "magistrates" and local quasi-judicial tribunals.

Anyway, here's the opinion:

13 Fla. L. Weekly Supp. 756a
THOMAS MATTHEW BELL, Petitioner, vs. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent. Circuit Court, 4th Judicial Circuit (Appellate) in and for Duval County. Case No. 16-2005-CA-7538, Division CV-E. May 15, 2006. Counsel: David M. Robbins, Epstein & Robbins, Jacksonville, for Petitioner. Kathy Jimenez-Morales, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for Respondent.
OPINION
(BERNARD NACHMAN, J.) This cause came before this Court upon the Petition for Writ of Certiorari filed by the Petitioner, Thomas Matthew Bell on December 5, 2005. The Petitioner seeks review of the Final Order of License Suspension of the Respondent, Department of Highway Safety and Motor Vehicles sustaining the administrative suspension of his driver's license. This Court has reviewed the briefs filed by the parties and has considered oral arguments presented. This Court, having jurisdiction, finds that the Petition for Writ of Certiorari was timely filed.
In his petition, the Petitioner has raised two (2) issues. The Petitioner alleges first, he alleges that there is not competent and substantial evidence in the record to uphold the findings of the hearing officer that he was lawfully arrested. This Court finds to the contrary as to this issue. Second, he contends that he was denied due process as a result of the actions of the hearing officer. This Court agrees with that contention and concludes that the Petition should be granted as to those grounds.
The transcript of the two separate hearings conducted by the hearing officer support Petitioner's assertion that the hearing officer departed from her role as a neutral and detached magistrate and failed to preserve the impression of impartiality to which Petitioner was entitled. See Department of Highway Safety and Motor Vehicles v. Pitts, 815 So.2d 738 (Fla. 1st DCA 2002); Ducre v. State, 768 So.2d 1159 (Fla. 2d DCA 2000) (“Whether appearing before a hearing officer or the court, a litigant should have the same confidence in the impartiality of the fact-finder”).
The hearing officer's lack of neutrality was evident. At the beginning of the hearing, Counsel for Petitioner noted that an officer whom he had subpoenaed failed to appear. Counsel moved to invalidate the administrative suspension due to the failure of this law enforcement officer witness to appear. Counsel advised Hearing Officer (hereinafter “HO”) Labbe that he had been present when Hearing Officer Supervisor (hereinafter “HOS”) Wright had denied this witness's request to be excused from the hearing. Setting the tone for the entire proceedings, HO Labbe insisted that Counsel was in error as to whether the witness had been excused. HOS Wright had to be brought into the hearing at which time she confirmed that Counsel was correct. After HOS Wright left the room HO Labbe overruled the supervisor's decision and announced that she was excusing the witness herself. HO Labbe requested that Counsel proffer the relevance of the witness she had just excused. When Counsel proffered what the witness had told him, HO Labbe then accused Counsel of engaging in an improper ex parte conversation with the witness. In addition to accusing counsel of this improper conduct, HO Labbe continuously interrupted counsel throughout the hearing.
The Petitioner had served a subpoena duces tecum for the original DVD recording to be brought to the hearing. The recording that was brought to the hearing was a copy. There were obvious gaps in the recording. When it became apparent that there was a problem with the copy, the Petitioner requested a continuance so that the original could be brought. The hearing officer responded by questioning Officer Blackstone about what was missing from the DVD. HO Labbe set out her purpose for these questions stating, “[w]hat I'm trying to determine is if I even have to be worried about this other original cassette. If there's something that's going to be on that cassette that's going to have caused you to not have arrested him.” HO Labbe improperly focused on whether Officer Blackstone believed that the recording was beneficial to the Petitioner instead of recognizing the Petitioner's due process right to present evidence.
Near the end of the first hearing, Counsel attempted to file a motion to disqualify HO Labbe based upon what had occurred during the hearing. Counsel handed the written motion to the hearing officer. The hearing officer began to write on the motion and improperly disputed the factual assertions. The motion was subsequently denied and the hearing was continued with HO Labbe.
The hearing was continued to October 28, 2005. Officer Blackstone was served with a subpoena duces tecum to appear at this hearing with the original DVD. Officer Blackstone appeared with a copy again. Officer Blackstone testified that the decision to bring a copy was based upon an ex parte conversation between counsel for the Sheriff's Office and the Bureau of Administrative Reviews. The Petitioner was not advised of this ex parte communication or the decision to effectively alter the subpoena duces tecum until arriving at the hearing.
The overall atmosphere and cumulative impact of the above examples as reflected in the transcripts evidences a failure to afford the Petitioner the fair hearing and due process to which he was entitled. As a result, the administrative suspension of the Petitioner's driver's license cannot be sustained.
Furthermore, although this Court has remanded these matters in the past, in this case the Court chooses not to do so. As noted by Judge Haldane Taylor in Gonzales v. Department of Highway Safety and Motor Vehicles, [9 Fla. L. Weekly Supp. 75a] (Fla.4th Cir. Ct., Nov. 30, 2001), “. . .a failure to preserve an appearance of neutrality seems to be a problem with the Respondent's hearing officers. Numerous Orders from this Circuit have had no apparent effect on the conduct of hearing officers in this regard. Therefore, this Court concludes that remand would serve no purpose in this case, and that the only appropriate remedy is to quash the Final Order of License Suspension.”
Upon consideration, it is hereby,
ORDERED AND ADJUDGED:
1. The Petition for Writ of Certiorari is GRANTED;
2. The suspension of the Petitioner's driver's license entered by the Department effective November 3, 2005, is hereby QUASHED;
3. The Department shall immediately reinstate the Petitioner's driving privilege, if otherwise eligible, and remove from the Petitioner's permanent record any entry which reflects the administrative suspension that was sustained by the administrative order.

Due Process in Driver's License Proceedings - NOT

The 3d DCA overturned the quashal of a DMV driver's license suspension in Fla DMV v. Jones, here's the link. The Department (in a hearing before a non-lawyer, department employee) apparently suspended the license based only on the officer's arrest report. The issue was probably cause for the stop, and the appeal was over whether the lower court had reviewed the statements in the report using a "subjective" versus "objective" test.

But the real issue is that people's licenses are being suspended based only on documentary evidence without the right to confront. The idea that these arrest reports are self-documenting and can be introduced without the sworn testimony of the officer (absent one of the various exceptions to hearsay, etc.) flies in the face of any kind of democratic justice.

Think about it: an administrative agency suspends your license based on a document, then gives you a "hearing" in front of one of its employees - who has no training in the law -- and then rests its case on the document, with no meaningful opportunity to challenge the contents of the document. In other words, in any meaningful way, the arresting officer IS the sheriff, judge, jury and executioner (since the officer siezes the license), because there is no meaningful way to challenge the officer's action.

Good bye justice and freedom. Hello Gulag.