Monday, April 2, 2012

Sierra Club Florida Asks Gov Scott to Veto SB 1998 and HB 599 Because of Due Process Concerns

Below, please find the letter requesting that Gov. Scott veto SB 1998 Transportation and HB 599 Transportation and Mitigation Programs.  Sierra Club Florida also asked the Governor to veto HB 1263 Department of Health because of the provisions relating to septic tanks.  That veto letter will be found on this site in a separate post.

March 22, 2012

The Honorable Rick Scott, Governor

State of Florida

The Capitol

400 South Monroe Street

Tallahassee, FL 32399-0001

Dear Governor Scott:

Sierra Club Florida urges you to veto SB 1998, titled “Transportation” and HB 599, titled “Transportation and Mitigation Programs.”

Section 42 of SB 1998 and section 80 of HB 599 contain identical language that deprives citizens of access to fair and impartial justice by mandating the summary hearing process on challenges to consolidated environmental resource permits, associated variances, or a sovereign submerged lands authorization proposed or issued by the Department of Environmental Protection in connection with Florida’s deepwater ports.  The legislation is designed to arrive at a specific outcome in a pending lawsuit and makes a charade of the administrative hearing process.
While the section in question is only twenty lines long, its negative impact on the constitutionally guaranteed right of procedural due process outweighs any possible benefits associated with the balance of SB 1998 and HB 599. 

Specifically these bills would:

1) Deny citizens their procedural due process rights.  HB 599 and SB 1988 both mandate the summary hearing process codified in 120.574 F.S., but with significant and detrimental changes. The summary hearing process is designed to expedite matters when both parties agree to its use. However, this section of law retroactively forces citizens into the process without their consent and is fundamentally unfair. It deprives petitioners of their constitutional right to procedural due process because they will be deprived of adequate time to gather and introduce evidence and testimony, (120.574 (2)(a) 2 and (d) 1-7, F.S.) when no other opportunity to do so exists after the hearing.  Since the appellate process is predicated on the presumption that the
summary process is voluntary (120.574 (1)(b) F.S.), the plaintiff  is doubly disadvantaged.  On appeal there is no opportunity to go back and accomplish necessary discovery or any other procedure elided by the imposition of the involuntary summary hearing process (120.68 (4) F.S.). 

2) Unfairly use the power of the legislature to very clearly choose a winner and a loser in a pending legal case – the Deep Dredge project in the Port of Miami.   The target of this legislation is clearly the ongoing Port of Miami case where the issue is whether the proposed dredging will damage Biscayne Bay.  House Majority Leader Lopez-Cantera said: “This project is too important to this state and Miami-Dade County to let it be dragged out any further." (The Florida Current – Feb. 24, 2012) and, ‘"We spent a lot of time and energy in last year's legislative session to secure the funding for the Deep Dredge," Lopez-Cantera tells Riptide. "More delays could kill this project. We're not going to let that loss happen."’ (Miami New Times – Feb. 24, 2012) 

Thus, there is no question that the intent of the section is to result in a specific outcome to the ongoing administrative law proceeding on the Deep Dredge project in flagrant violation of the rule of law.  F.A. Hayek writes in the opening of Chapter 6 of The Road to Serfdom:

Nothing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principles known as the Rule of Law. Stripped of all technicalities, this means that government in all its actions is bound by rules fixed and announced beforehand - rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge. 

To ensure a desired outcome in the specific pending case, the language of the section is crafted to circumvent the explicit protections in current statute.  It both forces plaintiffs into the summary hearing process and retroactively rewrites that process to their disadvantage at the same time.  Specifically the language of the bills states: “…however, s. 120.574(1)(b) and (d) and (2)(a)3. and 5., Florida Statutes, do not apply to pending administrative proceedings.” This act would be retroactively applied to this specific on-going proceeding with the result that:

  • The requirement for consent to the summary process by all parties is voided
  • The availability of the normal 120.569 and 120.70 processes are eliminated
  • The possibility of a continuance is eliminated, and
  • The administrative law judge’s discretion to send the hearing back to the formal adjudicatory process is removed

3) Make a charade of the administrative hearing process. The section in question strikes the provision that the administrative law judge's decision shall be the final agency action (120.574 (2)(f) F.S.) and instead specifies that “the administrative law judge's decision shall be in the form of a recommended order and does not constitute final agency action of the department.  The

 2023  Department of Environmental Protection shall issue the final order within 45 working days after receipt of the administrative law judge’s recommended order.  The Secretary is thereby given a blank check to issue whatever final order he wishes irrespective of the recommendation of the administrative law judge.   This is blatantly unfair and makes clear that the administrative hearing process is merely pro forma.  If the Secretary is authorized to make arbitrary decisions, why bother with hearings?  The section eliminates any pretense of “checks and balances.”

The following paragraph is from a Memorandum of Law prepared by Ralf Brookes:

The proposed bill amendment language is fundamentally unfair, and denies constitutional procedural due process, to parties with substantial interest that have “disputed issues of material fact” by subjecting them to summary disposition without agreement of the parties on those issues of material fact.  Current law provides that, “unless waived by all parties, s. 120.57(1) applies whenever the proceeding involves a disputed issue of material fact.” Keen v. Dept. of Business and Professional, 920 So.2d 805 (Fla. 5th DCA 2006)  Procedural due process requires that “certain standards of basic fairness must be adhered to in order to afford due process,...” Subjecting parties unwillingly, and over their objection, to a summary disposition hearing rather than a full formal administrative hearing would violate both fundamental fairness and curtail the objecting parties right to procedural due process.   Coral Reef Nurseries, Inc. v. Babcock Co., 410 So.2d 648, 652 (Fla. 3d DCA 1982). Jennings v. Dade County, 589 So. 2d 1337 (Fla. 3d DCA 1991), Harris v. Goff, 151 So. 2d 642 (Fla. 1st DCA 1963), Board of County Comm’rs of Hillsborough County v. Casa Dev. Ltd., II, 332 So. 2d 651, 654 (Fla. 2d DCA 1976) (emphasis supplied); Connor v. Town of Palm Beach, 398 So. 2d 952, 954 (Fla. 4th DCA 1981). Summary hearings are not appropriate where there are substantially affected parties with disputed issues of fact that do not agree to summary proceedings. Florida Elections Comm'n v. Davis (Fla. 1st DCA, 2010) (“ …But summary hearings require the agreement of all (original) parties to the proceeding, which would mean here the agreement not only of the Commission, but of Mr. Davis, as well.2 See Sec 120.574 (1), Fla. Stat. … A formal administrative hearing contemplates "the formal adjudicatory process described in s. 120.57(1)," not summary proceedings. §120.574 (2)(a)5., Fla. Stat.).”

We urge you to exercise your authority to veto these bills in order to uphold the fundamental principles of fairness and judicial impartiality – even when they benefit those with whom you may disagree, and to permit the sometimes slow, but necessary system of checks and balances to arrive at a just conclusion in this specific case and in all cases.   


David J. Cullen

on behalf of the Sierra Club Florida Executive Committee

David J. Cullen

Florida Sierra Club Lobbyist

111 Second Avenue N.E. - Suite 1001

St. Petersburg, FL 33701