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.

Another Takings Case that Everyone Should Read

The Fourth DCA released a VERY interesting opinion (here's the link) on August 31. The summary paragraph says its an inverse condemnation case, but the text makes it appear that the controversy is over valuation in a straight condemnation case.

The key issue: whether the lower court properly held that experts could not testify regarding proper valuation of lands that were unbuildable because permits to properly address drainage had been denied by SFWMD, the Corps and the County. Expert engineers would have testified that the permits had been denied because the various agencies wanted the area for a wildlife corridor. Appraisers would have testified that the proper "comps" were lands outside the district that were buildable, and that the difference in value reflected "condemnation blight" from the County's earlier purchases and condemnation efforts.

The lower court had excluded the testimony on the basis that it was improper because those issues should have and could have been raised in direct challenges to the permit denials. The appeals court overturned that decision (though limited some of the language that the experts could use in describing the effects of the government actions). The substantive law on this would take a multi-page essay. But here are some of the interlocking policies:

1) It would have been improper for the agencies to deny the permits for the purpose of suppressing land values prior to condemnation; if proven in a challenge, this would result in overturning the denial (and presumably allowing the lands to be developed)

2) It would have been improper for the agencies to deny the permits for the purpose of establishing a wildlife corridor on private lands; if proven in a challenge, this would result in overturning the denial (and presumably allowing the lands to be developed). If it were found a valid reason, it would have established a taking insofar as it denied the ability to use the property.

3) However, there may have been a proper technical basis for denying the permits; this would have resulted in a proper limit on the use of the land.

4a) However, even a proper denial of the permits could have results in a taking if all economic USE was lost; here, the County appraised the property values at $6,000 per acre, but there is no evidence that the property could be used for anything. There is still an open question as to whether property that can't be used, but still has economic value (for purposes other than use) falls under the categorical Lucas rule.

NOTE, however, that if the denial was based on the fact that the requested use would be a nuisance, the denial wouldn't create a taking. The 5th DCA in the Best case (below), held as much last month.

4b) In valuing the property after "proper" denial, the caselaw is unclear as to what use should be used in assessing value, but there is reason to believe that it should be based on the premise that at least a single family home could be built on any lot; there is a presumption that a single family home is not a nuisance, and therefore that probably establishes a ground floor valuation. HOWEVER, this also appears to be one of the yet to be finally established points of law.

5) In the inverse condemnation context, it appears that a landowner can "concede" the validity of a permit denial to establish the loss of all economic use, and then sue based on the taking and get the value of the property. The question then becomes whether the purpose and effect of the denial can be used to bolster a claim that the proper valuation of the land would reflect the ability to build under the denied permit, rather than the value of the land without the permit. That is, if the permit denial was proper, what is the right use of the land for valuation? Is there a minimum use that reflects the ability to build a single family home? We would not expect so in the case of, say, a submerged lot, or a parcel that clearly lies completely in a protected wetland, or for a property located somewhere inherently unsafe (floodway in the First English case) but I don't think that this question has been clearly answered; it's obviously a key question in this case, and this opinion may establish the answer: the Fourth would have allowed expert testimony that claimed that the proper valuation for the lands without the permits was based on developable property outside the area in question. On the other hand, the Fifth's decision in Best seems to indicate that the landowner would have to lititgate the issue of the permit denial seperately, especially if there was any claim that the denial would be a nuisance.

6) However, if this was a condemnation/valuation case (as stated in the text), rather than an inverse condemnation/valuation case (as stated in the introduction), these policies seem to play differently. If the government is trying to take the property, government action that improperly suppresses the value should be taken into account; the government can't regulate just to make its purchases cheaper. But again, I'm not sure whether (historically) it would be right for the landowner to claim the "value" of the land as though the denied permits had been granted where the permit denials weren't challenged (that is, can the landowner effectively collaterally attack the purpose of the denial). Again, the question is: what is the right comparable, land that is developable under a permit, or land without those rights? Here, the court is allowing expert testimony that the lands SHOULD have been able to get permits absent improper government motives, and that the lands should be valued like developable lands. But again, this seems to run contrary to the Fifth's position in Best.

I'm not sufficiently expert in some of the issues to be able to point out the relevant cases, exceptions and controversies, and I hope we'll get some other commentary on this soon.

A case we'll all be reading for a long time to come - Bert Harris AND takings together!

In another very strange case and opinion, the 5th upheld an inverse condemnation claim against Osceola County, but not against DEP (gosh, they keep getting away with stuff in this court) in a case that involves the application of clearly vague and illegal rules to force a construction and debris (C&D) landfill to cease operating, but not really close. A jury found BOTH inverse condemnation and damages under Bert Harris (after the judge found undue burden) , but the landowners had taken the risk of electing and defending the inverse condemnation award (presumably because it came with better provisions for attorney and expert witness fees). Here's the opinion.

The facts are pretty simple. Best ran a landfill since the 60's. In the early 90's it was made subject to both state permitting requirements from DEP and also to an Osceola County conditional use ordinance. Neighbors complained about odors and DEP and the County acted (both illegally) to deny the landfill the permits it needed to continue operation. Best was also denied (but read the dissent, the two agencies didn't get their acts together to tell Best what it needed to do) the ability to bring in other fill to close the landfill and use it for other purposes.

The complications are twofold. First, on the DEP permit, the agency denied Best a renewed operation permit by creating a non-rule policy just for them that a C&D landfill couldn't create any objectionable odors. It also made a "finding" that the operation of a landfill was a public nuisance - a fact that the court relied on in part on letting them off the hook. That was complete nonsense because an agency doesn't have and can't have the authority to declare anything a "common law" public nuisance -- a clearly judicial function and determination (though an agency can find and enforce rules against nuisances if those are defined by statute or ordinance).

The problem is that, at a certain point, Best dropped the case against the agency and proceeded under the Bert Harris Act and inverse condemnation.

At the same time that the DEP denied the permit, the County denied Best a continuation of its conditional use permit. Best tried a second time and was denied again. Rather than continue in the (very stacked) litigation on this permit, Best went to court on the inverse condemnation and Bert Harris claims.

When it did so, it dismissed its APA appeal of the DEP permit denial and filed an "acceptance of the validity of the action" with a reservation of rights to pursue the Bert Harris and inverse condemnation claims. The County and DEP claimed that the Best's failure to pursue attacks against the validity of the denials precluded the takings and Bert Harris claims.

The County and DEP win in their claim that the denial wasn't a taking because, even if it denied all economic use of the property, the use was a public nuisance based on the agency's finding, and therefore fell under the nuisance exception to Lucas. This is REALLY problematic. Since First English, takings doctrine has recognized that a valid regulation or permit denial can create a taking. Moreover, it should be clear that an agency is without authority to simply determine that something is a "public nuisance," and that a trier of fact in the takings case should be able to reject that determination if it is examining the effect of the agency's action (as both the judge found and the concurrence accepted). The 5th's decision here (but read the concurrence w/regard to Bert Harris rather than inverse condemnation) is a real problem for takings claims.
Despite the loss of the more meaningful part of the case, Best wins against the County on another theory: the County prevented it from closing the landfill by claiming that Best needed a permit from DEP that DEP didn't have and couldn't give. The inability to close the site then precluded any other use and was a taking. The dissent hates the facts with respect to this, but the majority wins.

Note that this is a BAD case for takings and probably a good case for Bert Harris law.

The majority opinion held that the trial court erred in finding a taking based on the effect of the permit denials because the plaintiff didn't continue to attack the "propriety" of those decisions in the administrative forums, but then made it a centerpiece of the taking case. The 5th rejects the idea that denials of permits based on "odors" could be the basis of a taking suit - essentially holding that if a government claims any basis for a denial that might be a "Lucas" exception, you've got to litigate the denial down before you can have a taking. [The facts found by the trial court indicate that these findings were pretextual, not supported by the evidence and really a cover for a political decision.] All of us who practice in this area know that the court's holding here is just an invitation to local government and agency attorneys to draft completely bogus "nuisance" findings into their denials [even if they are not authorized by any rule, statute or ordinnce], because the 5th has held that you can't litigate the validity of those findings in the context of the takings suit.

Of course, one of the key differences in Bert Harris litigation as opposed to traditional takings law is that both the "undue burden" test and the "burden on the individual that in fairness should be born by the public" test invite scrutiny of the purpose and nature of the decision as well as its effect. And the concurrence complains about letting the Department off the hook, noting that this is a Bert Harris case if there ever was one. But the plaintiff had already elected the takings remedy rather than the Bert Harris remedy, so this is just dicta.

What we don't know is what would have happened if the plaintiff had elected the Bert Harris remedy. Clearly the concurring judge would have upheld it against not only the "closure" problem, but also against the permit denials. Clearly, the dissent thought the "closure" argument was bogus. The dissent also gives short shrift to the notion (see the findings in the concurrence) that the County and DEP basically conspired to jointly adopt rules that would "get" this particular landfill, and acts as though the denials were completely normal and valid responses to the "decaying, gas and odor producing landfill." What we don't know is what Judge Sharp (the author) would have done with the findings if the case had been a Bert Harris rather than a takings case and she didn't have the "nuisance" exception to fall back on. Would she have read a "nuisance" exception into Bert Harris? Would she have held that the plaintiffs had to litigate the "propriety" of the denials in other forums? We just don't know.

But we can be absolutely sure that this case will generate lots more Bert Harris cases. Clearly, the facts and history here demonstrate that judges will consider the language of the statute and find "undue burdens" in cases where traditional takings may fail legally. What we may see is that Bert Harris can be used to open up real remedies for landowners who get caught on the tail end of abusive, unfair and arbitrary local government actions -- the types of actions from which the 11th Circuit has cut off landowners from due process and section 1983 damages. What I'll predict is that a lot of land use lawyers will be trying it.

5th DCA-Agencies have no duty to prevent their staff from imposing and enforcing illegal, unauthorized and unadopted rules

Most lawyers familiar with local government law know the Triannon Park rule on government liability - the government isn't liable for protecting you in its enforcement of rules, even rules for public safety. Triannon Park involved a case where a property owner tried to sue a local government for being negligent in inspecting a building during construction when it turned out that the construction was faulty.

In DEP vs. Hardy, here's the opinion, the 5th distorted the Triannon Park decision beyond all reason to overturn a jury verdict for $1.5 million against the Department based on negligent failure to supervise (and trespass). The court held that the Department did not have any duty to prevent one of its enforcement officers from applying an unadopted (and therefore illegal and unauthorized) 200 foot wetland buffer requirement against the landowner, even though the agency knew, because of another case, that the guy had a practice of applying the rule and that it was unauthorized! Yes, that's right folks, according to the 5th DCA, the government has no liability when it allows ita employess to make up rules, enforce them against you and drive you out of business, which is what happened to the property owner here when it couldn't satisfy the Department regarding how it would address an illegal fill violation because the equally illegal buffer rule was applied.

Today, of course, the landowner might have recovered at least legal fees by fighting this in an APA hearing. But this holding extends sovereign immunity and tort defenses to agencies that basically let their employees run wild and abuse the public. So the agency can drive you out of business, but at least you may win your administrative case eventually and your attorney will at least get paid.

But that's not ALL the damage the court did. It also distorted trespass law in the process, at least for businesses. The jury had found that the agency employee trespassed when "inspecting" the property without a warrant. The court held that because a business (chipping trees) was run on the property, it was open to the public and there was no trespass. SO, the 5th has taken the position that any property owner that runs a business on part of a property opens the entire property to the public. Think about it - a junkyard with an office open to the public opens its entire operation to the public. A farm with a farm store - same thing. Basically, under this opinion, anyone who runs a business must post any areas of their property that they don't want the public to enter.

That's not what I remember from torts - I believe that the traditional rule was that the invitation to enter property applied only to those areas to which a reasonable person would expect the invitation to extend. In other words, running an office might invite people to enter the office, parking lots, etc., to transact business, but not to the other areas of the property.

Of course, maybe the 5th is just destroying the constitutional obligation of agencies to obtain a warrant before searching premises. Isn't it nice that our agencies have so much respect for the rule of law, and that our courts ensure that only laws and rules that are properly adopted are enforced against us.

Revised - More War on Standing

Whoops - first go round on this case, I read the recommended order against the 1st DCA opinon instead of the Department's final order - changes a lot of context b/c the Dep't rejected the judge's attack on non-profit standing. which means that the 1st DCA didn't go along with the attack on non-profit standing. So this post is being heavily revised below, though many of the points are, I believe, still valid because the 1st DCA did adopt without analysis the flawed (I believe) analysis from last years O'Connel and Melzer opinions.

There's a war going on against standing in environmental and land use regulatory cases, and the rights of organizations - whether they're "responsible growth" organizations or the local home builders - to represent the interests of individuals and businesses has been the target of carpet bombing opinions. Administrative Law Judge Don Alexander has been in the forefront of this attack on the historic understanding of the standing provisions of the Growth Management Act.

The 4th DCA joined last year in the O'Connel and Melzer opinons, which (mis) applied the earlier LEAF case to hold that being aggreived enough to challenge a plan amendment in an administrative proceeding didn't guarantee that one would be adversely affected by a loss enough to have standing to appeal. In other words, no judicial review for you!

The most recent case is Florida Wildlife Federation and Friends of the Mantanza v. St. Johns County & the Dep't of Community Affairs. Here's Judge Alexander's recommended order, finding that having members, sending them information, and representing their interests doesn't make a non-profit a "business" with standing. While the logic is surficially complete, it's completely inconsistent with the intent of the statute and earlier cases (see the footnote that tries to distinguish the Lee County case).

Here's the Dep't of Community Affairs Final Order rejecting Judge Alexander's position on non-profit business standing as inconsistent with prior decisions. As a friendly but anonymous poster pointed out, it was this (not the recommended order) that was the subject of the appeal. It's good to know (yeah, Shaw) that the Dep't rejected the analysis.

And here's the 1st DCA opinion dismissing their appeal because the organizations don't have standing. In one paragraph. With no analysis of the statute, legislative history, earlier administrative precedents - just cites to O'Connel and Melzer. What this means is that the organizations didn't satisfy the 1st DCA that they would be adversely affected (enough) to have standing to appeal.

I wrote about why I think the O'Connel and Melzer cases weren't right - it's disheartening to see the 1st DCA not only adopt that logic, but to do so with no analysis of what showing would have to have been made below.

Let's be clear: stupid and ill-founded attacks on comprehensive plan amendments don't do the process any good, eat up huge amounts of time and money and need to be dismissed early and often. But simply making it impossible for citizens to have standing to attack them is only going to fuel the fire for even more destructive and ill-considered forms of action like the Hometown Democracy Amendment.

If the process is too long and expensive, let's amend the APA to having the agency make the transcript again, keep short time frames on hearings, simplify further the rules of evidence, simplify and shorten discovery, and eliminate the need for filing recommended orders and exceptions in order to preserve rights. Make the system faster, cheaper and easier to deal with. But stop screwing around with standing - it's only going to backfire in the end.

When the government gets more freedom to act without effective oversight, we're ALL worse off over the long run.

THANKS to the anonymous poster for getting me on the right order under appeal.
RL

I like electronic filing, but this may be going too far

The 4th DCA just posted new electronic filing rules - here's the link.

In addition to requiring all pleadings and transcripts to be filed by email or disk (Word, WordPerfect or PDF), the court is requiring all appendices to petitions to be filed electronically! So now you'll have to get all the stuff that was introduced into the lower record scanned into PDF format if it wasn't electronic to begin with - and there's no exemption for oversize things like maps.

IMHO, that's going a bit overboard, even today. It means that a party to a cert appeal has to go to the official record, get documents that the party did not create or produce and make electronic versions in order to file a cert petition. Some board clerks might not let you do it.

BUT the lesson and direction are clear folks: start putting all of your presentation materials together electronically and burn them to CDs as you're going. File the CD with a paper index for the clerk's benefit that can be used to indicate what documents did or did not actually get entered. Not a big problem in court practice, where the clerk and judge usually do a good job of tracking such things, but generally not (to date) part of practice before local quasi-judicial bodies.

Good case for rules of construction and when they are (and are not) applied

The First DCA posted this opinion on July 5 in Dep't of Revenue v. Lockheed Martin. It's a pretty boring tax case, but it turns on an issue of statutory construction. The opinion includes this very good paragraph on when plain meaning makes it appropriate for a reviewing court to intepret a statute (or ordinance, or comprehensive plan policy) itself, rather than resorting to either the rules of construction or deference to an agency interpretation:

The issue of statutory construction is subject to de novo review. State v.
Burris, 875 So. 2d 408, 410 (Fla. 2004) (citation omitted). Legislative intent
is the polestar that guides a court’s statutory construction analysis. State v.
J.M., 824 So. 2d 105, 109 (Fla. 2002) (citations omitted). When a statute is
clear, a court may not look behind the statute’s plain language or resort to
rules of statutory construction to determine the legislative intent. Burris, 875
So. 2d at 410; see also Overstreet v. State, 629 So. 2d 125, 126 (Fla. 1993)
(noting that legislative intent must be determined primarily from the language
of a statute). This is so because the Legislature is assumed to know the meaning
of the words used in the statute and to have expressed its intent through the
use of the words. Id. It is only when a statute is ambiguous that a court may
resort to the rules of statutory construction. BellSouth Telecomms., Inc. v.
Meeks, 863 So. 2d 287, 289 (Fla. 2003). “‘Ambiguity suggests that reasonable
persons can find different meaning in the same language.’” State v. Huggins, 802
So. 2d 276, 277 (Fla. 2001) (quoting Forsythe v. Longboat Key Beach Erosion
Control Dist., 604 So. 2d 452, 455 (Fla. 1992)). Administrative construction of a statute, the legislative history of the statute’s enactment, and other extraneous matters are properly considered only when the construction of a statute results in a doubtful meaning. Donato v. Am. Tel. & Tel. Co., 767 So. 2d 1146, 1153 (Fla. 2000); see also Fajardo v. State, 805 So. 2d 961, 963-64 (Fla. 2d DCA 2001) (explaining that although virtually every English sentence contains some level of uncertainty, rules of statutory construction are reserved for cases in which a fair reading of the statute leaves a court in genuine doubt about the correct application of the statute).

So, no deference to a local agency construction of a zoning code or comprehensive plan unless the language is ambiguous (not just vague!).

11th: RLUIPA Case Finds As-Applied Violations AND Interesting Vagueness Test

In Konikov v. Orange County, here's the link, the 11th determined that Orange County improperly applied its ordinance requiring special exceptions for religious organizations to a rabbi who held relatively small services at his house.

It held that because the Rabbi could have held Boy Scout meeting or other civic meeting at the home with the same occupancy and frequency as the religious services that he held, the ordinance improperly singled out and discriminated against his religious practices.

Moreover, the court examined the ordinance for vagueness. It instructed the District Court to determine whether the term "religious institution" was impermissibly vague as a definition. More importantly, it found for Konikov on the question of whether the ordinance was subject to arbitrary enforcement. The court looked at record testimony that indicated that two different Code Enforcement Officers had differing views of the frequency of the meetings would constitute a violation. Because the Code was not specific enough to provide a single determination on a matter critical to the enforcement of an ordinance with 1st amendment implications, the panel upheld the lower court's determination that the ordinance was impermissibly vague.

THIS part of the opinion is really important and may have broader application. The court notes that chilling effect issues raise the bar on enforcement standards in ordinances that have 1st amendment implications, but this very simple standard is one that should be recognized in all litigation regarding local codes.

11th: Whoops, Standing to Challenge any Part of Sign Ordinance Gives Standing to Challenge Overbreadth of All Parts

A panel of the 11th receeded from? over-ruled? the earlier Granite State v. City of Clearwater holding, and confirms that a plaintiff who has standing to challenge one part of a sign ordinance can challenge any other part on overbreadth grounds.

The case is Tanner Advertising Group v. Fayette County, GA, and here's the link. It's important because it allowed Tanner to attack the ordinance as a whole, when the off-site regulation section (that prevented Tanner from getting permits for the billboards it wanted) had been upheld as a valid time/place/manner regulation. By getting to go beyond that section and attack the rest of the ordinance's regulation of signs as a whole (which included significant restrictions on on-premises signs and political and other signs on residential property), Tanner had a claim (albeit untested) for enjoining enforcement of the whole ordinance.

What's interesting is that this panel over-ruled another panel's Clearwater holding, which said that the sign company in that case could attack only those portions of the ordinance that directly affected it. This panel essentially said that the earlier case was non-binding becaue it was inconsistent with earlier decisions. Here's the relevant section:

In light of the strong precedent from the Supreme Court and this Circuit
concerning the doctrine of overbreadth which preceded the Clearwater decision,
we are compelled to follow our “prior precedent” or “earliest case” rule and uphold our decisions preceding Clearwater and disregard the narrow approach to the overbreadth doctrine employed by the Clearwater court. The prior precedent rule dictates that:
A prior panel decision of this Court is binding on subsequent panels and can be overturned only by the Court sitting en banc. . . . When faced with an intra-circuit split we must apply the “earliest case” rule, . . . a panel should look to the line of authority containing the earliest case, because a decision of a prior panel cannot be overturned by a later panel.
Morrison v. Amway Corp., 323 F.3d 920, 929 (11th Cir. 2003) (citations and quotation marks omitted). Because this Court sitting en banc has not overruled St. Petersburg, Dimmitt, National, and Solomon, and because they came before the Clearwater decision, we hold that Tanner has standing to make a facial challenge to the Ordinance as a whole.

Interesting case for 1st amendment and local government lawyers, important case for folks doing lots of appellate work in front of the 11th Circuit.

Fla Supreme Ct won't Hear Vanderbilt Beach

Got a note from Larry Sellers today with a link to the Fla. Supreme Court's order declining to hear the appeal in the Vanderbilt Beach case. Too bad that this junk will stay on the books.

Kelo: Public Use = Legit Public Purpose - But what is legitimate?

The headlines are all ablaze with news that the US Supremes have radically expanded the authority to take property. Well, that's an ill-informed and extreme position, but the Court did apply its past precedents to a more broad kind of public program in Kelo v. City of New London - here's the link.

I don't want to delve into the property rights issues here. I think what's more interesting is the basis of Justice Kennedy's concurrence - the "swing" vote on this case.

Justice Kennedy's position is that the use of eminent domain would be improper under a "rational basis" type of test if the record demonstrated that the power was being used to benefit a particular person or corporation, rather than the public. He found that the record here - including the statements made by the dissenting Connecticut justices below - indicated that the purpose was to benefit the City and not Pfizer (the entity that will end up with the land). The fact that the taking was in conjunction with a comprehensive redevelopment plan seems to have loomed large in his consideration.

What's interesting is that his position would require the court's to scrutinize the actual record far more than in due process type rational basis cases. In other words, the actual facts and history, rather than post-hoc rationalizations, would be scrutinized. Flash back to his concurrence in Lingle, where he also opined that he wasn't stating that the statute there could pass due process tests.

SO - I think the big question may be this: Is Kennedy trying to get the Court to establish a new "hard look" type of test for substantive due process issues? If so, will he be able to get some of the conservative/moderate faction on board? The problem is that Scalia, Rhenquist and Thomas are generally legislative power hawks and Breyer - the putative liberal-- is generally with them on such issues. Souter is the skeptic; O'Conner (former state att'y general) tends not to like the substantive due process approach, and Bader-Ginsburg hasn't led on these issues. But it might be interesting to see if a Kennedy/Souter/Ginsburg wing, could swing two of the others to a more stringent view of due process.

It's important to note that Kennedy's view of the facts in Kelo is somewhat at odds with Justice O'Connor's recitation of the facts, which indicate that the redevelopment plan was generated from the point when Pfizer expressed interest in locating there. Seems to me that this indicates that the plan was to accommodate Pfizer. So one wonders what kind of record would "flip" Kennedy - would this case have gone the other way if the facts were more egregious or the public need of New London for redevelopment less obvious? If the four dissenters had taken up the intermediate scrutiny approach resulting in a remand for further factual inquiry into the public vs private benefits of the taking instead of trying to establish a harder line on what "public use" could mean (more principled but less flexible), might Kennedy have joined them?

But on the substance - a majority says that paid takings for "public use" are satisfied where there is a legitimate public purpose for them, even if that purpose is sale to a different private party for building a Ritz Carlton instead of a Motel 6, as Justice O'Connor described.

Personally, I'm a due process and review hawk, and I believe that effective judicial review creates real improvements to the results. In other words, when the government knows that it has to really justify its actions on public policy grounds and the facts, it is a better government. So I'm disappointed that the intermediate scrutiny proposal made by some of the amici didn't fly, because I think that would have better results, regardless of how the substantive standard is articulated. But I'm intrigued by Kennedy's due process arguments in two out of the three takings cases this year -- maybe there's some hope for meaningful review on the horizon if the right case presents itself.

San Remo - You Have to Litigate Fed Takings Claims in State Court - But 4 Justices Want to Review the Core Issue

In San Remo Hotel v San Francisco , here's the link, the US Supremes upheld the 9th Circuit's determination that the plaintiffs were precluded from litigating their takings claims in federal court because the state court had claimed that it had reached the federal issues. The most important and clear holding - if you actually litigate a federal claim inside a state claim, even an England reservation won't preserve your ability to litigate it again in federal court.

The second clear holding - if the state court holds that state taking law is generally co-extensive with federal law, you probably are going to have to argue your federal claims in the state court case and then appeal to the US Supreme Court to resolve the question of whether there has been a violation of the US constitution (Fifth through Fourteenth). You'll want to have the state court clearly indicated its position with regard to what the federal law requires and how that relates to state law.

This is a procedural nightmare case that may be more of a cautionary tale about how not to litigate takings cases. Space and time preclude me from giving you the whole background, but suffice it to say that the plaintiffs were trying too hard to get to federal court, managed to let the state courts try some of the issues, failed to appeal the state supreme court holding (which indicated that federal issues has been tried along with the state issues), and were in a very bad position back in federal district court. Despite their England reservation, the federal issues had been heard (though perhaps not as a federal court would hear them - more on that later), and neither the 9th or the US Supremes were willing to create a massive whole in the full faith and credit statute to allow the plaintiffs to go back to federal court to argue that the state court had either not heard the federal claim or had got it wrong.

The core problem, of course, is that if landowners want to claim that federal law is being interpreted too narrowly, or for an expansion of federal precedents, they can't do it in a federal forum. While this doesn't violate any substantive right (as both the majority and concurring opinions point out), it does prevent the federal courts from engaging the facts and law in what is a pretty dynamic area.

The basis for all of this madness is the part of the Williamson County case that holds that federal takings claims aren't ripe unless a state court has refused to provide an inverse condemnation remedy under state law. This has, in prior cases, been held to apply to the particular facts and plaintiffs, requiring each taking case to be litigated in state court first. And, as this case demonstrates, once you're in state court, it's almost impossible to effectively reserve your federal claims and not try them, especially if the state courts claim that they interpret state takings law co-extensively with federal 5th amendment jurisprudence. Effectively, the state courts can use this to hijack the interpretation of the US Constitution, with cert to the US Supreme Court the only available correcting mechanism.

The four-member concurrence invited plaintiffs to raise anew whether this is the right interpretation of Williamson County. This means that there is a sufficient number (4) on the court to force a hearing on the matter if it comes back.

With only short consideration, I can see that such a case might be predicated one of three ways: either the plaintiff would allege in US District Court that there was no takings remedy at all for the plaintiff under state law, pointing to state precedents (kind of a facial issue), or that state law was claimed to be co-extensive with federal law but did not reach the harm done to the landowner under the facts (a kind of as-applied challenge), again citing precedents. The federal court would then either a) dismiss the case under Williamson for failure to give the state court a chance to conform its holdings to federal requirements, or b) allow them to proceed under the basis that established state law doesn't provide a remedy. Either course would run into standing problems under different interpretations of Williamson, run its way through the Circuit Court and have 4 members of the Supreme Court waiting to grant cert to hear it.

Another way to play this MIGHT be to try to plead both federal and state claims in US court, claiming supplemental jurisdiction to hear the state claim. Again, you'd get bounced (probably) on Williamson, and then bring it up through the appeals process. This may be the quickest way to get to having a cert petition before the high court.

The final approach might be to again try an England reservation and attempt to force the state court to avoid any direct interpretation of the 5th/14th in its rulings, and then go back into District Court to try the federal issues. But after San Remo, I don't give that theory much hope.

Ultimately, I don't see this case as a major blow to property rights, given the 4 member concurrence. I don't see it as the court's last word on the process of litigating takings claims because of the concurrence, and it may be that we'll see a very different kind of case with different results soon. In the meantime, the safest route will be to litigate your federal claims in state court, knowing that you're only remedy for a misapplication of federal law will be the low-probability of cert review by the US Supremes.

A Gross Invitation to Abuse: No Injunction Against Deliberate Gov't Flooding of Property w/out Prior Taking

This is one of those cases where you just shake your head.

Brevard County is admittedly flooding a landowner's property for mosquito control purposes without permission and without commencing an eminent domain action. The landowner sued for injunction and also for inverse condemnation should the flooding be allowed to continue.

The trial court held, and the 5th DCA affirmed, that because the inverse condemnation remedy is available, the landowner has a remedy at law and is not entitled to a temporary injunction against the flooding. The case is DiChristopher v. Bd. of County Commissioners, here is the opinon. It also noted that the public interest is not served by the injunction, because the mosquito control program promotes public health.

First, it's just wrong that the government gets to commit an intentional tort and can't be stopped simply because somewhere down the line a legal remgy MIGHT be available. Trespass is a tort, damages are available for past trespasses, but that doesn't stop a court from being able to order enjoin future trespasses. But more importantly, what we're seeing is the government just going ahead and flooding this land and saying "so sue me." THEY ADMIT THAT THEY ARE COMMITTING THIS TORT AND TAKING, and refuse to do the LEGALLY REQUIRED act of eminent domain. And what happens now if the trial court later finds that because the flooding is periodic, it's a trespass, not a taking? (unlikely, but possible). Does the injunction count get reinstated?

SO - what we have now is a new claim by the government that even absent an emergency, act of war, etc., they can invade and take anyone's property anytime they want, and the only response available is a multi-year, complex suit in inverse condemnation -- no one can order them to remove themselves or do the right thing by initiating a takings claim.

The problem is clear: absent the availability of injunction to restrain the government from trespassing (or even siezing) property, what reason does the government have to bother with eminent domain? Hell, let's just start building roads, etc., over people's property and see who bothers to sue! Maybe we can get away with getting a bunch of free land, and maybe courts will hold that in inverse condemnation you don't get business damages and other pesky substantive and procedural rights that go along with eminent domain actions (like 12 person juries).

And folks wonder why there's such a "property rights" movement in this country.

Just what standard applies to 2d tier review of legal issues?

In Lakewood Travel Park v City of Davie, here's the opinion, the Fourth denied a "2d tier" petition for certiorari against a circuit court denial of cert. The case involved a challenge to a site plan approval issued by the City of Davie.

Apparently, the site plan would be accessed through an off-site drive, and the core issue was whether the site/development standards (like buffering, etc.) applied to that drive.

Without getting to the merits of the case either way (there's really not enough detail in the opinion to help), here's the problem language:

Upon a review of the record, we cannot say that the failure of the Town to
require the owner of the property on which the easement was situated to
authorize the development plan (which would involve paving the easement) or the
failure to apply the Town’s environmental buffer requirements to the access road
clearly violated the town code.

So what, exactly, standard of review did the court apply to the legal interpretation of the Code? If the Code was not ambiguous, then the court should have applied a non-deferential review. If the Code was ambiguous, then it should have deferred to the agency's intepretation unless that interpretation is clearly erroneous. (See the Dixon v. Jacksonville case).

I know of no standard that requires a person attacking the issuance of a development order to show that the action "clearly violated" the code. The action either did or did not violate the Code, which is a seperate issue from what the Code does or does not require. The courts' job is to ensure that the legal standards that have been, are, or will be applied are understood and properly intepreted.

The case may or may not have been properly decided. But without a clear recitation of the standard that was applied, why it was applied, and the language in the Code to which it was applied, we cannot tell the answer.

Sigh.