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?