State, Department of Highway Safety & Motor Vehicles v. Walsh
State, Department of Highway Safety & Motor Vehicles v. Walsh
Dissenting Opinion
dissents.
.. I respectfully dissent.. There is no question that the circuit court erred in concluding State, Department of Highway Safety and Motor Vehicles v. Abbey, 745 So.2d 1024 (Fla. 2d DCA 1999), was not binding upon it.
Mere legal error is not a basis for granting second-tier certiorari review. Custer Med. Ctr. v. United Auto. Ins, Co., 62 So.3d 1086, 1093 (Fla. 2010). It is not the existence of error which matters, but the “seriousness of the error.” Combs v. State, 436 So.2d 93, 95 (Fla. 1983); Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla. 2000) (quoting Stilson v. Allstate Ins. Co., 692 So.2d 979, 982-83 (Fla. 2d DCA 1997)). Thus, second-tier, certiorari is intended to correct “an inherent illegality or .irregularity, an abuse of judicial power, an act of judicial tyranny perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice.” Haines City Cmty. Dev. v. .Heggs, 658 So.2d 523, 527 (Fla. 1995) (quoting Jones v. State, 477 So.2d 566, 569 (Fla. 1985) (Boyd, C.J., concurring specially)).
Admittedly, the concept of “miscarriage of justice” for purposes of granting certio-rari relief under Florida law has not been defined. The Supreme Court has deliberately avoided enumerating errors which would constitute a miscarriage of justice.
The majority mentions the recent decision Futch v. Florida Department of Highway Safety and Motor Vehicles, 189 So.3d 131 (Fla. 2016). I would argue that Futch is instructive of my point. The facts of the case are as follows:
During a traffic stop, Futch allegedly refused to submit to a blood-alcohol test. The Department of Highway Safety and Motor Vehicles (“DHSMV”) suspended Futch’s driver license for one year, effective March 15, 2013. Futch sought review of the driver license suspension. During the administrative review, the hearing officer refused to permit Futch’s counsel to ask more than two questions of Futch’s expert witness. The hearing officer subsequently upheld the suspension. On certiorari review of the administrative decision, the circuit court found thát the hearing officer’s actions denied Futch due process, and invalidated the suspension. On second-tier certiorari review of the circuit court’s decision, the Fifth District agreed with the circuit court that the hearing officer violated Futch’s due process by refusing to allow his expert to testify. However, the Fifth District held that the circuit court was required to remand the case back to DHSMV for another administrative hearing, and “that the circuit court misapplied the law when it directed DHSMV to set aside the suspension and reinstate Futch’s driver’s license.”
Id. at 132. The Florida Supreme Court held in Futch that second-tier certiorari relief was improperly granted by the district court even though the circuit court applied the wrong law thereby granting an improper remedy. While legal error plainly had been committed by the circuit court, it obviously did not constitute a manifest injustice. Id. The instant case is analogous. No other circuit court will be bound by the erroneous decision of the circuit below should it remain standing. While it is true Respondent Walsh would be given a privilege to which,he is not yet entitled should the circuit court’s decision remain undisturbed, the injury that would be suffered by the Department in reinstating a single driver’s license is not wide-ranging.
In Futch, the Florida Supreme Court reaffirmed that “appellate courts must exercise caution not to expand certiorari jurisdiction to review the correctness of the circuit court’s decision.” 189 So.3d at 132' (quoting Nader, 87 So.3d at 723); see also Heggs, 658 So.2d at 526. Indeed, the Florida Supreme Court “has cautioned the district courts to be prudent and deliberate when deciding to exercise this extraordinary power,” and therefore second-tier certiorari jurisdiction should be invoked only when it is necessary to ensure “essential justice” for the parties and the public. Ivey, 774 So.2d at 682. (quoting Stilson v. Allstate Ins. Co., 692 So.2d 979, 982-83 (Fla. 2d DCA 1997)). It seems to me that it is incumbent on the majority to articulate how the error of the circuit court in not applying Abbey was something more than simple legal error. Like Judge Al-tenbernd, I am concerned that the “flexibility” accorded to the miscarriage of justice standard—to the extent .there is .a standard—“may devour the rule of finality.” State v. Wilson, 690 So.2d 1361, 1364 (Fla. 2d DCA 1997) (Altenbernd, J., dissenting).
As this court has said in State v. Pietrasiuk, 197 So.3d 640 (Fla. 1st DCA 2016), a denial of a writ of certiorari does not necessarily connote agreement with a circuit court’s decision. It is obvious that the circuit court below did err in failing to find
. Determining whether we agree with Abbey is unnecessary for the disposition of this case. I would note that alcohol and controlled substances (commonly called "drugs”) are different under Florida’s DUI laws, while Abbey put them in the same set. See §§ 316.193-, 1934, Fla. Stat.
Opinion of the Court
In 2009, Gregory T. Walsh’s driver’s license was permanently revoked because of his DUI manslaughter conviction. Five years later, after his release from prison, he sought early reinstatement of his driving privileges, petitioning for a “hardship license” under section 322.271, Florida Statutes. During the administrative hearing on his petition, he admitted to drinking alcohol in the past five years, including beer in the previous three months. Understandably, the hearing officer denied Walsh’s request for reinstatement, noting that Walsh’s recent imbibing violated the statutory requirement that he must be “drug-free for at least 5 years prior” to a
In the circuit court, Walsh’s initial cer-tiorari petition complained only that the hearing officer’s order failed to cite the relevant statute, but it evolved into a broad attack on various aspects of the reinstatement process, the focal point of which was the legal question of whether alcohol is a “drug” for purpose of determining whether Walsh had been “drug-free”. for five years.
That question had been answered long ago by our sibling court in State, Department of Highway Safety & Motor Vehicles v. Abbey, 745 So.2d 1024 (Fla. 2d DCÁ 1999), which held that the Department’s interpretation was a reasonable one, holding that “drug-free” included “abstinence from the same mind-altering substances, i.e. drugs, that can result in an arrest for DUI” such as alcohol. Id. at 1025. Indeed, in light of statutes and administrative rulings that deem alcohol to be a drug for purposes of drug-free workplaces and related contexts, the Second District concluded that “any other interpretation would be unreasonable.” Id. Abbey made the common sense point that “[w]hen the legislature announced that an applicant must be ‘drug-free,’ it did not intend the applicant to refrain from the use of aspirin.” Id. Instead, the statute was to be “liberally construed to the end that the greatest force and effect may be given to its provisions for the promotion of public safety.” Id. (quoting § 322.42, Fla. Stat. (1997)); see also § 322.263(1), Fla. Stat. (1997) (legislative intent was to “provide maximum safety for all persons who travel or otherwise use the public highways of the state”).
Abbey is a “red cow” case,
Unlike the trial court, we are not required to adopt the Second District’s decision in Abbey, but we do so because it reflects the proper interpretation of the statute. To hold that “drug-free” excludes alcohol would ignore the common understanding that alcohol is a drug, the deference due to the Department’s reasonable interpretation of the broad phrase “drug-free,” and the Legislature’s intent, as clearly expressed in the statute. As noted in Abbey, the Department’s view that alcohol is a drug for purposes of determining the scope of what “drug-free” means under section 322.271(4) is wholly reasonable. Of note, that section relates only to a person “whose driving privilege has been permanently revoked because he or she has been convicted of DUI manslaughter,” and who has “no prior convictions for DUI-related offenses.” It would be an odd result—and a serious error—if persons convicted of manslaughter due to alcohol consumption could have their licenses reinstated despite their continued use of the very substance that caused another’s needless death.
The remaining question is whether a “miscarriage of justice” has resulted. In the ordinary meaning of the phrase, it most certainly has: the Department has been ordered to issue a hardship license to which Walsh is’ not entitled; his prior exercise of driving privileges resulted in the death of another due to his DUI, yet he did not abstain from alcohol use for the requisite five years to become eligible. It is serious error to put a license in his hands, creating the very risk of harm to others that the statute clearly was enacted to prevent. This type of miscarriage of justice need not be systemic or broad; it can be as to a single person or entity, as the decision in Abbey itself reflects. 745 So.2d at 1026 (granting the Department’s petition, quashing the circuit court’s order, and directing reinstatement of the “Department’s denial of Abbey’s application for a hardship license.”); see Vasques v. Mercury Cas. Co., 947 So.2d 1265, 1267 (Fla. 5th DCA 2007) (“We agree that the circuit court’s decision affirming the judgment in favor of Mercury violated clearly established principles of Florida law resulting in a miscarriage of justice for Uas-ques.”) (emphasis added). Absent correction now, the direct result of the trial court’s order is a miscarriage of justice as to society, the Legislature’s intent in restricting hardship licenses, and the protection of the public.
, We appellate judges “must be able to correct serious errors resulting in a miscarriage of justice,” Nader, 87 So.3d at 727, but are simultaneously cautioned that not every error is a “miscarriage of justice” sufficient to warrant the exercise of our power to review matters on second tier certiorari. Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla. 2003) (cautioning that a departure from the essential requirements of law requires more than legal error); see also Futch v. Fla. Dep’t of High. Saf. & Motor Vehs., 189 So.3d 131,
PETITION GRANTED; DECISION QUASHED.
. See Corn v. City of Lauderdale Lakes, 997 F.2d 1369, 1390 (11th Cir. 1993) (“The term ‘red cow' is used in some legal circles, particularly in Florida, to describe a case that is directly on point, a commanding precedent.”).
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