Abstract Appeal -- by Matt Conigliaro

Thursday, July 31, 2003

More Pryor. The AP reports here that the Senate Democrats have successfully blocked a Senate vote on Pryor's nomination to the Eleventh Circuit.

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Pryor Nomination. Feddie and Howard have done an absolutely marvelous job of keeping track of, and offering some contributions to, the coverage of General Pryor's Eleventh Circuit nomination. The eerie negative focus of pols and pundits on Pryor's Catholic faith has been, well, disturbing, to say the least.

The Senate is proceeding this morning with debate on Pryor's nomination, and via Howard, we know that a filibuster is underway as the Senate Democrats attempt to keep Pryor's nomination from coming to a vote. So we wait…

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Meet Me At The Bar. Today's Tampa Tribune has this story on yesterday's bar exam for aspiring Florida lawyers. All 2750 of them -- the biggest group ever to take the test.

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Looking Around. The Orlando Sentinel's Mike Thomas has these views on medical malpractice reform… Meanwhile, the Tallahassee Democrat has this story on how over 1000 Florida doctors have signed affidavits saying they are leaving the state, quitting, or taking other significant steps because of a medical-liability crisis…

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Wednesday, July 30, 2003

Arbitrations. Looking for an arbitration agreement that's sufficiently unconscionable to void the arbitration obligation? The Fourth District today looked here and here but didn't find one.

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Questions, questions. Today, in three cases, the DCA's certified to the Supreme Court of Florida questions of great public importance.

First, in this juvenile case where unpreserved error left the court uncertain how to follow its duties under Anders v. California, the First District certified the following:

NOTWITHSTANDING MADDOX [v. STATE, 760 So. 2d 89 (Fla. 2000)], SHOULD AN APPELLATE COURT CORRECT A SENTENCING ERROR IN AN ANDERS CASE WHICH WAS NOT PRESERVED PURSUANT TO THE APPLICABLE RULES OF PROCEDURE? IF NOT, WHAT STEPS SHOULD AN APPELLATE COURT FOLLOW TO CARRY OUT THE MANDATES OF ANDERS AND [STATE v. CAUSEY, 503 So. 2d 321 (Fla. 1987)] IN SUCH A CASE?

Second, in this case, the same court certified this question:

IS THE FLORIDA STANDARD JURY INSTRUCTION ON "POSSESSION OF PROPERTY RECENTLY STOLEN" AN IMPERMISSIBLE COMMENT ON THE EVIDENCE?

Finally, in this case about client responsibility for counsel's actions, the Fourth District certified this question:

MAY A TRIAL COURT DISMISS A CIVIL ACTION AS THE RESULT OF THE PLAINTIFF'S ATTORNEY'S MISCONDUCT DURING THE COURSE OF THE LITIGATION WHERE A CONSIDERATION OF ALL OF THE KOZEL [v. OSTENDORF, 629 So. 2d 817 (Fla. 1993)] FACTORS POINTS TO DISMISSAL EXCEPT THAT THERE IS NO EVIDENCE THAT THE CLIENT WAS PERSONALLY INVOLVED IN THE ACT OF DISOBEDIENCE?

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Second District. Is a statute that prohibits the admission of traffic citations as evidence in any trial unconstitutional? Judge Altenbernd thinks so in the context of this case because, in his view, the statute is purely a procedural rule of evidence, which can be prescribed only by the Supreme Court of Florida. A majority, however, disagreed. Read the case, including Judge Altenbernd's dissent, for this issue and an interesting discussion on the proper use of the writ of certiorari.

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Eleventh Circuit. Catching up a bit here, the Eleventh Circuit dealt a double blow yesterday to state death row inmates seeking to rely on Ring v. Arizona to avoid capital punishment. The court held that a Florida inmate in a habeas corpus proceeding was procedurally barred from relying on Ring because he had not first raised a Sixth Amendment challenge in Florida's state courts. Further, the court held that Ring's rule that juries alone must make all findings used to support a death sentence is a procedural rule that does not operate retroactively. Read the decision here.

Today, the circuit court joined the Second and Fifth Circuits in holding that s. 502(a) of ERISA does not preempt a state law malpractice claim against an HMO where the claim is based on a mixed coverage and treatment decision. You can read the opinion here. The issue arose in the context of remand to a state court, so removal fans will also want to check this one out.

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It's Great… To Be… A Florida croc? The Gainesville Sun reports here that the University of Florida's 2003 football media guide has a crocodile on the cover. That is, the Florida Gators have a crocodile on their media guide cover. Oops. (Think this isn't law related? Guess how many judges and practicing attorneys in Florida are proud graduates of UF's law school? They can't wait for their copies of the media guide. Chomp chomp.)

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Form Of… A Legislature. A few days ago, I mentioned in this post that the Manatee County School Board was considering abandoning a long-held tradition of reciting a prayer before meetings. At a meeting on Monday, though, board members and local citizens showed their support for the tradition. Also, the constitutionality of the prayer practice is perhaps now being defended by the board's attorney, who believes the board is "a legislative, deliberative body" and that a recent California case found a school board to be a legislative body in which prayer was allowable. See this story from the Sarasota Herald-Tribune for the full report.

If I spot that California case, I'll pass it along. I do know about the United States Supreme Court's 1983 decision in Marsh v. Chambers, which held that Nebraska's Legislature could begin its sessions with a prayer. I also know about a California court's late 2002 decision, which distinguished Marsh and held that the Burbank City Council could not begin its meetings with a prayer.

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Tuesday, July 29, 2003

And More Thanks… to the latest blogs to mention and link to Abstract Appeal: The Curmudgeonly Clerk and Inter Alia. Both are great blogs (er, blawgs), and Tom Mighell (of Inter Alia) gets special thanks for mentioning not only me but my firm.

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Street Life. U.S. District Judge Patricia Seitz issued an order today ruling that the City of Hollwood can ticket street vendors attempting to sell the Sun-Sentinel and the Miami Herald, according to this story from the Sun-Sentinel. The papers had argued that the First Amendment prohibited such regulation.

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In the News. The Tampa Tribune has this story on one business's decision to allow customers to smoke despite Florida's new smoking ban in places of employment… The Palm Beach Post reports here on a Stuart woman's efforts to add a "Trust God" license plate to the many plate options available to Florida car owners. My guess is we'll be hearing about this again…

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Another Judge Passes. The AP reports here that Senior U.S. District Judge Norman C. Roettger, former chief judge of the Southern District of Florida, died of a heart attack over the weekend. He was 72. Last month, Judge Wilkie Ferguson, of the same court, died of leukemia.

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Opinions. Monday's only opinion of note came from the Eleventh Circuit, which decided that a Georgia sheriff is an arm of the state, and thus has Eleventh Amendment immunity in 42 U.S.C. s. 1983 suits, with respect to the sheriff's policies on "use of force." The court split 6-5, with two written dissents criticizing the majority's views on the Eleventh Amendment examination and Georgia law as well as the majority's focus on "use of force" policies in particular, rather than the sheriff's policy-making authority over the county jail. The case is also noteworthy for its notes: Judge Hull's majority opinion contains 54 footnotes, and the dissenting opinions of judges Anderson and Barkett respectively contain 6 and 18 footnotes. Whew. Read the case here.

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Sunday, July 27, 2003

More Thanks. This time to Denise Howell (of Reed Smith) and her always informative and entertaining Bag and Baggage blog, for giving me, my firm, and Abstract Appeal a real nice mention here.

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He Said He Doesn't Want To Be President. At least not if it means trading in his BlackBerry, suggests this story from the Orlando Sentinel regarding Governor Bush. The E-Governor is well-known for his use of email to keep atop all things gubernatorial. Maybe I could email him a version of Abstract Appeal…

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In the News. Tampa Bay Online reports here that, in light of a challenge, the Manatee County School Board appears ready to abandon its longstanding practice of beginning each meeting with a particular prayer… The Orlando Sentinel's Mike Thomas is being prescient in this column about a future legal requirement -- testing for elderly drivers… The Sun-Sentinel has this story on how a 15-minute video explaining jury duty airs regularly on cable for most Palm Beach County residents. (I'm trying not to make the obvious comment about the need for a video explaining a certain biennial ritual we Floridians have)…

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Many thanks to the first blogs to add links to Abstract Appeal, according to Technorati:

How Appealing
The Limit of Its Logic: Ninth Circuit Blog La-Legal Annotated
Southern Appeal

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Saturday, July 26, 2003

That's One… Thanks to Steve at La-Legal for linking the "Police" t-shirt post below. Glad to know folks are already reading this blog.

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The St. Pete Times has this story about how membership associations like the American Legion come under Florida's new smoking ban if they have even one employee. What if the employee smokes?

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What's a Theory, Anyway? In an opinion issued yesterday, the Fifth District relied on Florida's two-issue rule to refuse to consider a defendant's claim of error that related to only one of a plaintiff's four "theories" of liability, all of which were presented to a jury for a general verdict. The theory at issue was a company's alleged failure to provide a safe transportation system between two hotels. The remaining three theories were based on premises liability: failure to maintain property in a safe condition, failure to correct a dangerous condition, and failure to warn of a dangerous condition. The plaintiff pled all four theories in a single count for "negligence." This case is the latest in a series of decisions treating permutations on negligence claims as separate causes of action under the two-issue rule.

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Hey, Legislature! Did you mean…? One party seeks, and obtains, sanctions against the other under s. 57.105. The sanctioned party appeals and argues that, under the statute, the sanctions should have been shared by the party's attorney. (It's probably safe to assume a different attorney handled the appeal.) The Fourth District rejected the argument, holding no such request was made below by either party.

Interestingly, the court also suggested that the Legislature revisit the statute to consider the conflict that might arise whenever counsel receives a sanctions motion against a client -- should counsel tell client that the sanction may be shared? Or suggest the client retain independent counsel to evaluate how to proceed? Can it help that the fees will not be shared if the attorney acted in good faith based on representations of fact made by the client? The court spoke only to the client/counsel pair on the receiving end of the motion. One might wonder whether additional conflicts could exist… Read the case here.

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For Economic Loss Rule Fans. The Fourth District released the latest economic loss rule decision Wednesday. The case involved the sale of commercial property, and the parties' contract included a representation (presumably attributable to the seller) that certain drainage requirements were met. They were not, and the buyer sued for fraud and negligent misrepresentation. Focusing on the fact that the representation was historical -- the seller had nothing to perform in this regard -- the court held the representation was an inducement to the contract, not a term, and that the tort claims were not precluded by the contract. Read the case here.

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Friday, July 25, 2003

The Orlando Sentinel has this story today on state officials' decision to restore some felons' right to vote.

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Litigation is Addictive? Though it predates the official start of this blog (sort of like the case discussed below), Kathleen Parker's column this week on litigiousness is worth a mention.

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Good News for Those Wearing "Police" Shirts. On Wednesday, the Third District reversed a man's conviction under s. 843.085(1), for wearing a shirt with "Police" on its front and back. The court held that the statute (which prohibits wearing all sorts of indicia of law enforcement authority) is a content-based restriction on speech and fails the First Amendment's strict scrutiny analysis. The court also found the statute overbroad because it criminalizes conduct where a person wears some indicia of law enforcement authority but has no intent to deceive the public into believing the display to be official. The court gave an example of a Halloween costume. You can read the opinion here.

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Thursday, July 24, 2003

A Sad Start for Substantive Posts. The AP reports today that Justice Pariente is currently undergoing chemotherapy treatment, following surgery to remove cancer. I'm confident I speak for many when I say our thoughts and prayers are with her and that we wish her a speedy treatment and a complete recovery.

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Welcome! This post is the first post on Abstract Appeal, a web log that will closely follow matters relating to Florida law and the Eleventh Circuit. To my knowledge, Abstract Appeal is the first to do so in either respect. Credit is due, though, and must be given to the many bloggers -- or, better put, blawgers -- who have long been blogging away on web logs devoted to other regions, or to the national scene, or to specific legal topics. The blawgs I read regularly are listed near the top of the right column as "Big Blawgs." To that list I could add some of the state-based blogs listed below the Bigs, but I've not, simply to avoid duplication. Also, many blawgs I read infrequently are no less Big. The authors of all of these sites are pioneers. I'm just trailing along with my contribution to the sunshine.

And off we go.

Those of you familiar with Florida law might think I've picked a convenient time to start blogging the subject. The Supreme Court of Florida is currently enjoying its annual recess, and the Legislature has adjourned its second special session. Inevitably, there is and will be much to cover. The district courts of appeal continue to release decisions, a third special session is on the Legislature's horizon, and our high court's summer break should give me a chance not only to get into the swing of things before new opinions start arriving but to take some time to recap the court's more significant decisions of the past year. Of course, the Eleventh Circuit remains active, and the proceedings surrounding the nomination of William H. Pryor, Jr. to that court are generating national attention.

Florida is a wonderful place to live -- I say it's the best -- and it never lacks for interesting legal news. Should that situation ever change, then there would be no need for Abstract Appeal. Until then, I'll have something to discuss.

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