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Tuesday, September 30, 2003
DNA Deadline Ordered Extended. Today, the Supreme Court of Florida indefinitely extended the October 1, 2003 deadline for DNA testing under Rule 3.853 of the Florida Rules of Criminal Procedure and § 925.11(1)(b)1. According to the order, which you can read here, the extension is to permit the court to consider pending petitions challenging the deadline as unconstitutional.

Two important points:

First, here's the essence of what's going on. The rule and statute opened a two-year window during which convicted persons could apply for free DNA testing if it might exonerate them of their crimes. The window closes tomorrow and with it goes the requirement that DNA evidence be kept. The court's order prevents destruction of DNA evidence while the court considers petitions challenging the constitutionality of the two-year deadline.

Second, there is a substantial disagreement among the court's justices over whether the court has the authority to do what it did today. Three of the seven justices signed on to a vigorous dissent, written by Justice Wells, which maintained that Florida's Constitution does not permit the court to halt the expiration of the statutory window. Instead, Justice Wells asserted, only the Legislature can extend the deadline, and only a trial court can enjoin the destruction of evidence.

Find Someone Dead? Just Report It. There's no sign of murder in the case of a Satellite Beach woman who placed her dead husband's body in their garage and left him there for two weeks, according to this story from the Bradenton Herald. The story notes that the woman may still be charged with failing to report her husband's death.

Did you know there's a law on that? Florida requires that deaths be reported to the local medical examiner in many cases, depending on the cause of death. You can read the statute listing the circumstances under which deaths must be reported (e.g., accident, suicide, criminal violence) here, and you can read the statute that requires reports to be made here.

Cleaning For Time. With his sentencing just over a month away, a Seminole County man found guilty of felony littering for the condition of his yard has been given permission to leave jail during the daytime -- but only to clean up his yard, according to this story from the Orlando Sentinel. Any cleaning he does may affect the severity of his sentence. During his trial, the man claimed that his yard's condition was a constitutionally protected political protest.

Adding Judicial Weight… If you're following the news on the suicide that's supposedly going to occur at a rock concert this weekend in St. Pete (see several posts below), you'll be interested to know that yesterday a trial court enjoined promotion of the show until a hearing can be held Thursday. Read about it here in today's St. Pete Times.

Monday, September 29, 2003
To the Top! The publisher of the Florida Alligator is taking the Dale Earnhardt autopsy photo case to the United States Supreme Court, according to this story tonight from the AP. I will definitely be having more on this later.

But Apparently Not Difficult Enough… The AP reports here that the band intends to go forward with the show, albeit as a private one, at an as-yet-undisclosed location in St. Pete.

Suicide Stunt Gets More Difficult. St. Petersburg's city council passed a law today that prohibits conducting a suicide for entertainment purposes, as well as hosting or promoting such an event. The new law, detailed in this on-line story from the St. Pete Times, is meant to help stop an alternative rock band from carrying through with its announced intent to stage a terminally ill person's suicide at a St. Pete concert this weekend. You can read an earlier post giving more info on this story here.

More On Invasions of Privacy. Craig Williams, of the May It Please The Court blog, has wondered aloud about my thoughts on the Florida Supreme Court's recent decision in this case, where the court held that allegations of offensive touching do not state a claim for invasion of privacy under Florida law. You can read Craig's post here. In short, Craig makes the commonsensical observation that unwanted physical touching sure sounds like an invasion of privacy. Here's a somewhat brief response.

In a sense, Craig's right. Many people would consider unwanted physical contact to be an invasion of their privacy. But we're not discussing everyday parlance here -- we're talking about carefully defined common law causes of action. Many people would consider a clenched fist to the jaw to be an assault, but they'd be wrong, at least with respect to how we define common law claims. Legally speaking, an assault is basically putting someone in fear of unwanted, imminent physical contact. The contact itself is a battery. So if you see the fist coming, that's an assault. If it hits you, that's a battery.

Common law claims have long been an evolving set of concepts. Florida's Supreme Court first recognized a common law cause of action for invasion of privacy in 1944. The case involved a publication that exposed very private facts about a person to the public. No existing common law claim covered the situation, and so the court, perceiving an injustice that required a judicial remedy, expanded Florida's common law to include the tort "invasion of privacy."

The case decided just over a week ago involved physical touching. The defendant in the case wanted the plaintiff's claim to be seen as a claim for invasion of privacy because his insurance policy covered that tort. Skipping through the case's convoluted procedural history, when the Florida Supreme Court was presented with the question of whether unwanted physical touching constituted an invasion of privacy, the court said no. Invasion of privacy includes four things: (1) unauthorized use of a person's name or likeness, (2) physically or electronically intruding into one's private quarters, (3) public disclosure of private facts, and (4) publicly portraying someone in a false light. The "private quarters" mentioned in (2) do not mean a body part. The court explained that it did not create the invasion of privacy tort to be duplicative of other torts. Presumably, the court was thinking of battery, since the touching at issue in the case was almost surely a battery.

The bottom line is that the court made a policy decision not to expand a rather recently developed common law tort to cover something that a long established tort already covered. By the way, my original post on this case, which went into none of this detail, is here.

More Schiavo. Mary Jo Melone's weekend column covered the case as well.

Schiavo News. More today on the Terri Schiavo saga from the St. Pete Times, which has this story. It highlights how some people have misdirected their feelings over the case.

Saturday, September 27, 2003
So Everyone's Able. In the opening paragraph of this decision released yesterday by the Fifth District, the court stated that it agreed with the decision of "the able trial judge." Interestingly, the trial judge in the case was Judge Vincent Torpy, who has since been appointed to the Fifth District. (No, he wasn't on the panel in this case.) That's amusing, but not as amusing as this footnote in Judge Winifred Sharp's dissent:

I too agree with the majority that this trial judge, and all of our trial judges, are "able," but I respectfully differ in my interpretation of the statute.
Sounds like a partial concurrence…

Settling for Ice Cream. The AP has this story on the settlement of a Broward County class action brought against an ice cream manufacturer for mislabeling the fat content in the product. Under the settlement, class members can receive -- what else? -- free ice cream.

The Price of Ambulance Chasing. The Florida Bar's ethics battle with an attorney over using a "runner" to solicit clients is described in this story in today's Tallahassee Democrat.

Fifth District: Timely Unemployment Appeals. The Fifth District appears to be sticking with the position that where an unemployment compensation applicant swears never to have received a determination denying an application, and thus seeks to bring a belated appeal from the determination, the date printed on the determination is not, standing alone, competent evidence from which it can be determined that the determination was mailed on that date. You can read the court's latest decision on this here. Generally, a person has 20 days to appeal from the date on which an adverse determination is mailed.

Fifth District: Notetaking. This decision yesterday from the Fifth District reminds us that criminal trial judges have broad discretion in determining whether to allow jurors to take notes or submit questions to witnesses.

Friday, September 26, 2003
Ouch. Mike Thomas, columnist for the Orlando Sentinel, has this piece today offering some harsh criticism of the recent public appearance of the mother of the Orlando-area retarded woman who, after being raped while in state care, recently gave birth. The daughter made national headlines when Governor Bush and others unsuccesfully pushed for the appointment of a guardian for her then-unborn child. Now the mother -- who apparently hasn't seen the daughter in years and had her parental rights terminated by the state in 1995 -- is making headlines because she's arrived on the scene just in time to try to sue the state on her daughter's behalf.

Blog Threats Are Outside School's Jurisdiction. Today's Times-Union has this story on how Duval County school officials have determined that a student's web log comments threatening another student cannot be the subject of school board discipline. The board apparently concedes that it cannot punish students for anything they do, anywhere -- including home and the Internet.

Homeowners Association Still An Oxymoron. I previously mentioned in this post the pending sale of the home of the Jupiter man whose front yard flag flying brought out the worst in his local homeowners assocation. None other than the association is foreclosing on the property to collect its legal bills from the flag fight. Well, according to this story in this morning's Jupiter Courier, the sale is on hold while the man and Attorney General Crist appeal whether the home is protected from sale under Florida's homestead laws.

By the way, the story mentions that this dispute last year prompted the Florida Legislature to pass a law permitting flag flying despite homeowners association rules to the contrary. You can read that law here (look at subsection (3)).

Thursday, September 25, 2003
Eleventh Circuit: Arbitration Agreements. The Eleventh Circuit decided this arbitration case today. Can you tell from the tone of the opening paragraph how it turned out? Try:

This is another arbitration dispute in which the parties are litigating whether or not they should be litigating. The familiar scenario is that the parties agree in writing to arbitrate any disputes between them, but then one party files a lawsuit taking the position that the agreement to arbitrate is inapplicable, invalid, or unenforceable for one reason or another. Here the plaintiff contends the agreement to arbitrate does not cover his federal statutory claims, is unenforceable because he cannot afford to arbitrate, and is invalid because it does not afford him the remedial relief to which he is entitled under the statutes.
As you may have guessed, the case is headed to arbitration. Note that the court disposed of the second issue based on the defendant's offer to pay the arbitration costs to the extent necessary to make things fair for the plaintiff. Brilliant.

Supreme Court. Finally, in this case, the Supreme Court held that a negligently made misdiagnosis does not itself constitute concealment of the misdiagnosis for purposes of § 95.11(4)(b), which extends the usual 4-year statute of repose on medical malpractice claims to 7 years when "fraud, concealment, or intentional misrepresentation" prevents discovery of the injury. Concealment doesn't exist absent intent to conceal. Interestingly, the court's decision was unanimous.

Supreme Court. Today in this case, the Florida Supreme Court reinforced the limits on a district court's reviewing authority when conducting a second-tier certiorari review. Perhaps more interestingly, the court took a moment to note that granting relief on a petition for writ of certiorari means simply quashing the order on review and not directing the lower tribunal to take some action. There's nothing terribly new there, but it's a point often overlooked. The district courts regularly issue writs of certiorari and, in doing so, order various actions to occur in the lower tribunal.

Supreme Court. This week's offerings from our high court include this decision, in which the court held that a trial court has discretion in whether to stay a plaintiff's claim under FUFTA, the Florida Uniform Fraudulent Transfer Act, while the plaintiff pursues a claim that, if successful, will make the plaintiff a creditor of the defendant. The court disapproved a Third District decision that required a trial court to stay a FUFTA action until the plaintiff obtains a judgment against the defendant.

Schiavo News. Well, not news -- a column. St. Pete Times columnist Mary Jo Melone's thoughts today on the Terri Shiavo saga are worth reading. Check out her column here.

Great Idea. This has little to do with law. It's just neat. According to this story in today's Palm Beach Post, the Palm Beach County Sheriff has started installing message boards in the rear windows of patrol cars. They can flash messages like "school zone" and "slow down." The story suggests that the cars must be stopped or parked to display messages, but the possibilities for the signs seem far more interesting if the vehicles can flash messages while moving…

Not So Fast. The presidents of Florida's universities have joined the chorus calling for the repeal of a Florida law enacted last year that permits Florida high school students to graduate a year early, according to this story in today's Florida Times-Union.

Eleventh Circuit. In this decision released yesterday by the Eleventh Circuit, the court set out to clarify how to analyze whether a plaintiff's claim filed in state court is subject to super preemption under ERISA, the Employee Retirement Income Security Act, and thus whether the case can be removed to federal court. In this particular case, the court held that a former employee's claims were not super-preempted and therefore removing the case from state court to federal court was improper for lack of federal jurisdiction.

Perhaps most noteworthy about the decision is that, in a footnote, the court refused to consider the defendant's argument, first raised "tardily" on appeal, that removal was appropriate because the federal district court had diversity jurisdiction. The court acknowledged that the argument may be correct but held that the defendant had the burden of setting forth the jurisdictional basis for removal in the notice of removal.

Fourth District. Including simple burglary as a predicate offense for purposes of Florida's violent career criminal statute permits persons with prior convictions for burglarly of an unoccupied conveyance to receive enhanced sentences for subsequent offenses. If you've thought this might be unconstitutional because such burglaries aren't necessarily violent, you'd better read this decision yesterday from the Fourth District. (The court rejected the argument.)

Fourth District. Can a trial court condition a substitution of attorneys on the client's payment of the former attorney's bill? Not always. For an explanation of the applicable rule and some exceptions, check out this decision yesterday from the Fourth District.

Debating Abatement. That's what the Second District found itself doing yesterday in this tobacco lawsuit in which the plaintiff died during the trial court proceedings. If you're interested in understanding what happens to a personal injury claim after a person dies, or at least what the possibilities are, check this one out. Appellate folks may also enjoy the jurisdictional discussion at the end of the case.

Wednesday, September 24, 2003
The Assisted Self-Murder Is Off. Or at least the show is. Owners of two Pinellas County venues -- the State Theater in St. Petersburg and Club Venom in Pinellas Park -- have apparently taken steps to prevent their stages from being the one the alternative rock band Hell on Earth uses to display a suicide. The AP reports here that the State Theater owner has cancelled the band's scheduled show there and that the Club Venom owner is refusing to allow the band to perform if the performance will involve a suicide. The band had been announcing for weeks that a terminally ill person would commit suicide during the St. Pete show.

This publicity stunt by the band raises not only substantial moral issues but criminal ones as well. Florida has long had a law against assisting suicide, or, as the law puts it, assisting self-murder. The offense is a second degree felony. You can read the law here.

Tuesday, September 23, 2003
Schiavo News. October 10. According to the AP, that's the date that Judge Lazzara is going to hold a hearing on Terri Schiavo's parents' efforts to stop Terri's feeding tube from being removed. As noted in this post below, Terri's parents are claiming that Terri's husband and Judge Greer (the state court judge) have conspired to deprive Terri of her constitutional rights. You can read the latest here.

Judicial Disqualification: Judge Hoeveler. The blogosphere has been buzzing lately with talk of the propriety of Judge Pregerson's reported remarks about the now-vacated panel decision postponing the California recall vote. Bloggers Bill Dyer, Eugene Volokh, and others expressed the popular view that the judge's public comments were improper.

Today, Florida has its own tale of judicial commentary. Many Floridians will recall that, several months ago, Judge Hoeveler of the Southern District of Florida made numerous comments about the Everglades restoration case that he has overseen since 1988. Those comments resulted in the Chief Judge of the district court issuing an order today disqualifying Judge Hoeveler from the case. U.S. Sugar filed the motion, and Judge Hoeveler quite appropriately referred it to the Chief Judge for a ruling.

You can view a copy of the decision from this page on the court's site. For those looking for the highlights, the Chief Judge relied on 28 U.S.C. § 455(a), which provides:

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
Most notable about the order is the court's acceptance of the notions that interviews with reporters are presumptively two-way conversations and that reporters may be the sort of extrajudicial sources that can reasonably be seen to influence a judge's impartiality. So much for newspapers interviewing Florida's federal judges about their cases.

How's My Driving? The Judge Wants To Know!!! That's the bumper sticker message that an Escambia County Judge is requiring convicted drunk drivers to display on their car bumpers, according to this story in today's Sun-Sentinel.

Schiavo News. The latest update in this saga is that yesterday Terri Schiavo's parents filed an amended complaint in federal court. In the complaint, the parents allege a conspiracy between Terri Schiavo's husband and Judge Greer to deprive Terri of her constitutional rights. As you may recall, Judge Greer has currenty scheduled Terri's feeding tube to be removed on October 15. You can read about the latest developments in this story in today's Tampa Tribune.

Toughman Suit. The St. Pete Times has this story today on how the family of a Bradenton woman killed last year in a Toughman fight is now suing everyone involved.

Eleventh Circuit: Chudasama Redux. I'll go out on a limb here and say that corporate defense lawyers in particular will soon be keeping handy a copy of this decision released yesterday by the Eleventh Circuit. Without explanation, a district court had granted a plaintiff complete, unrestricted access to Ford's customer communications databases, despite the fact the plaintiff's suit involved only one alleged defect and despite the auto manufacturer's arguments that it had disclosed all relevant, nonprivileged items from its databases. The appellate court granted a writ of mandamus and vacated the discovery order, using some significant language about trial courts' obligations to make factual findings in the face of bona fide discovery objections. The court relied on its well-known prior opinion in Chudasama v. Mazda Motor Corp.

Eleventh Circuit: Antitrust. So when is entry of summary judgment favored? In a price-fixing case, of course, where the conduct challenged may well be the very conduct the antitrust laws were designed to protect. You can read an extensive discussion regarding the summary judgment standard in such cases in this case decided yesterday by the Eleventh Circuit. The court affirmed a trial court's entry of summary judgment in favor of the tobacco manufacturers in a price-fixing class action. Also, the tail end of the court's opinion addressed the discretion trial courts possess with regard to the admissibility of expert opinions.

Monday, September 22, 2003
Not-So-Abstract Brief. The silence at this corner of the blogosphere these last few days has been the result of an appellate brief that required this blogger's full attention. Fortunately, the brief is nearly on its way out the door. The world is now a better place, and blogging as usual should resume shortly.

Friday, September 19, 2003
Eleventh Circuit: Roberto Duran Fans? You would think so from this decision decided today by that court. The case concerns boxer Roberto Duran's 4 world championship belts, which were stolen some years ago in Panama and subsequently recovered from a Miami businessman by the FBI. The FBI placed them in the hands of a federal district court, which held a trial to determine if the businessman or Duran was the belts' owner. A jury ruled in Duran's favor and the businessman appealed.

A couple of things make this Judge Carnes decision interesting. First, the court writes and publishes an affirmance, and the only points discussed are the admission of a hearsay statement and an unsuccessful motion for sanctions -- rather mundane topics for a published opinion. Second, the court begins the opinion by reciting, with apparent enthusiasm, facts and stories about Duran's life as a fighter -- information that the court appears to concede was obtained from the Internet and news reports and not from the record.

Imagine Another Plate… this one with John Lennon and the word "Imagine" on it. You can read about it here in today's Palm Beach Post.

Abortion Amendment On The Road. A Florida House of Representatives committee yesterday held a public hearing at the University of South Florida to hear citizens' comments on a proposed state constitutional amendment that would require minors to notify their parents before obtaining an abortion. You can read about the comments raised at the public forum in this story in today's Tampa Tribune. You can also look here to read the Supreme Court of Florida's decision from earlier this year ruling that a statute requiring parental notification violated pregnant minors' state constitutional right to privacy..

Confederate Flag Plate. The folks behind the proposed new Florida license plate honoring Florida's role in the Confederacy are serious, and now Governor Bush is not saying whether he would sign or veto a bill authorizing the plate, according to this story from today's Tallahasee Democrat. (Remember how things sounded earlier this week? See this post.)

Keeping the FCAT Under Wraps. The AP has this report on yesterday's oral argument at the First District regarding whether parents have a right under Florida law to obtain copies of the FCAT exams taken by their children.

Florida Supreme Court: Right to Privacy. In this decision from yesterday, the Florida Supreme Court held that a cause of action for Florida's common law tort "invasion of privacy" (which should not be confused with Florida's constitutional right to privacy, a right vis-a-vis the State) is not stated by allegations of sexually offensive remarks and unwanted physical touching.

Those not too familiar with reading case law might be interested to note how a "majority" was formed in this case. Three justices agreed to the opinion that appears first in the decision and which reached the conclusion noted above. Three justices agreed to the opinion that appears second in the decision and which concluded that unwanted physical touching should be actionable as an invasion of privacy. Finally, in the third opinion in the case, one justice agreed with the first trio on the issue of whether an invasion of privacy claim was stated (and thus we have a 4 out of 7 majority on that issue), though he disagreed with the first trio on whether the court needed to resolve additional legal questions in the case.

First District: Arbitration Unconscionable? In this case, the First District reversed a trial court's determination that an arbitration agreement was unconscionable and thus unenforceable. Written by Judge Webster, the decision is an excellent read for anyone interested in arbitration agreements or what makes (and doesn't make) a contract unconscionable.

Thursday, September 18, 2003
Public Access to FCAT Exams? Today, the First District will hear oral arguments in an appeal from a trial court's decision that the State of Florida must release its FCAT exams and answers for parental inspection. You can read about the case in this story in today's Orlando Sentinel.

The case is second on the court's 2 p.m. docket. You can watch the court's afternoon session live on the Internet by going here at 2 p.m. and clicking on the "Live Oral Argument" link.

Schiavo News. The trial court in the Terri Schiavo case has now set a new date to remove Terri's feeding tube: October 15. You can read about that decision, and Terri's parents' resolve to keep trying to keep her alive, in the St. Pete Times, the Orlando Sentinel, and the Tampa Tribune.

Fourth District: Counsel Drafting Orders. The Fourth District yesterday had a good deal to say in this case about the circumstances under which courts should not be rubber-stamping orders drafted by counsel. The court's discussion on the subject is worth reading, especially for those involved in family law cases.

Fourth District: Unpled Claims. It's well understood that a judgment should not be entered based on a claim that was neither pled nor tried by implied consent. This decision released yesterday by the Fourth District held that an unpled claim tried over objection cannot be the basis for a judgment, even if the opposing party can show no prejudice from being forced to defend the claim.

Second District: Raising Constitutional Challenges on Appeal. This decision yesterday from the Second District reminds appellate attorneys that the constitutionality of a law on its face may be raised for the first time on appeal, but an as-applied challenge may not.

Second District: Juveniles Are No Different. In this decision yesterday, the Second District declared § 985.215(6) unconstitutional in certain cases. The statute requires parents to pay $20 per day toward the care of an accused child placed in detention. Because adults who are not convicted are not charged for their care, the court found the statute unconstitutional on equal protection grounds to the extent it imposes charges where children are acquitted or not prosecuted. The court also held the statute unconstitutional on due process grounds where parents themselves provide for a child's care.

Questions, questions. The Fourth District has now joined the Second District in certifying the following to the Supreme Court of Florida as a question of great public importance concerning Florida's Jimmy Ryce Act, which governs the civil commitment of sexual predators:

Look here to read the Second District's decision certifying the same question.

Eleventh Circuit. Right now -- well, maybe later today -- municipal officials from at least three states who deal with evictions should be reading the 50-page, 20-footnote majority opinion in this decision released yesterday by the Eleventh Circuit. The case concerned a decision by the City of Orlando's code enforcement officer to condemn an apartment complex and evict its tenants without providing them contemporaneous notice of their right to challenge the condemnation. The majority held that the tenants had a due process right to notice of their right to appeal the condemnation decision and that under the circumstances of the 36-hour eviction the city's code did not satisfy the notice requirement, but the court also held that the city's code enforcement officer was entitled to qualified immunity in a 42 U.S.C. § 1983 action because a reasonable code enforcement officer would not, at the time, have known the city's code did not provide adequate notice. Judge Birch dissented in part and would not have found the officer entitled to qualified immunity.

Eleventh Circuit. The Eleventh Circuit has certified a question to the Supreme Court of Georgia regarding a City of Macon ordinance that prescribes that a $4.50 fee be charged to telecommunications providers for each foot of fiber optic cable they have installed in the city's public rights-of-way. Whether the ordinance is preempted under Georgia law is at issue, and the certified question is the following:

You can read the appellate court's decision here.

Wednesday, September 17, 2003
Unsanctionable. Recently, Ernie the Attorney had a very good legal writing tip about using the word "significant" instead of more quantitative terms like "most." Another useful legal writing lesson can be learned from this week's online poll offered by the Bradenton Herald, which asks readers this question: "Should the State of Florida sanction a new Confederate Flag license plate?"

The problem with the question is its use of the word "sanction," which is among the more peculiar words in the English language because it can have nearly opposite meanings. As a verb, sanction generally means to approve or encourage (as it's used in the online poll), but the word is also used (improperly, some would say) as a verb meaning to punish or penalize, and sanction as a noun (quite properly) means both approval for an action and a penalty for disobeying a law or rule. So, if you sanction something, or if you receive a sanction, what exactly are you doing or receiving? If you must use the term, hopefully context will aid the reader in understanding your meaning, but it's generally a good idea to avoid the word "sanction" when possible.

Any Way You Put It: We Stink. The Manhattan Institute for Policy Research has just released this study on national high school graduation rates, and according to this chart, Florida comes in dead last -- #51 of 50 states and the District of Columbia. Governor Bush's office disagrees with how the study calculated Florida's rates, according to this story in today's Tallahassee Democrat.

You might wonder what this post has to do with Florida law. Well, to oversimplify things, an uneducated citizenry is unlikely to understand the law -- and especially unlikely to understand the difference between the limits of existing law and what may be seen as the proper result in a given situation. Heck, educated persons often have a difficult time with this distinction, and when citizens do not understand the legal system that governs their lives, dissatisfaction or worse is imminent. To function properly, with the faith and trust of those it governs, Florida law needs educated Florida citizens.

High-Speed Rail, Or Not. In 2000, Florida voters approved an amendment to the state constitution that requires the construction of a high-speed rail system that connects Florida's top metro areas. (You can read the provision here.) According to this story from today's Tampa Tribune, a state legislator has proposed a bill to ask voters to reconsider that amendment, in light of the costs of building the high-speed rail system.

Class Action Certified Against Florida. Today's Tallahassee Democrat has this story on how a federal district court judge in Tallahassee yesterday certified as a class action a racial discrimination case against the State of Florida. The case is about pension benefits for workers at state mental health institutions. According to the story, some "front-line workers" at those institutions claim they are being unlawfully denied the special risk retirement benefits the State gives to police, firefighters, and correctional officers.

Tuesday, September 16, 2003
Small Business Claim. The AP is reporting on a Vero Beach businessman who has filed suit against Wal-Mart for $1 billion in damages. From the story, it appears the suit may be for unfair business practices based on a former employee's successful efforts to redirect Wal-Mart to a new candle supplier. Interestingly, the businessman is quoted as saying "I'm all about the small guy, and I'm about to take on this giant." Now, Wal-Mart is a giant by any definition, but the claim is for $1 billion…

Schiavo News. No substantive changes in the Terri Schiavo saga, but this story from today's St. Pete Times provides an update on the situation and some indications on when various rulings may be made.

No Confederate Flags Here, Either. Two students at Naples High School were sent home yesterday when each refused to remove or conceal the confederate flag he wore on his shirt, according to this story in today's Naples Daily News. Displaying the flag is apparently banned by the school's written student code of conduct. In the story, school officials refer to this decision by the Eleventh Circuit in which the court earlier this year held that public school officials do not violate the First Amendment by banning displays of the confederate flag at school.

Puff Daddy for Sure. A Miami cigar maker is suing P. Diddy and his label for surreptitiously filming the cigar maker's secret rolling process and publishing the footage in a music video, according to this story from today's Miami Herald.

The Judge Isn't Happy… in the case of the severely retarded woman who was raped while in a state-licensed group home and has now given birth. At least, that would appear to be the situation as described in this story in today's Orlando Sentinel. The judge has criticized the Department of Children and Families and, less directly, Governor Bush for how they've handled the case and its publicity.

Monday, September 15, 2003
Eleventh Circuit: Competency to Stand Trial. Did you know that if you are incompetent you can waive your right not to be tried for a crime? You can if you induced your own incompetency, or at least this is a reasonable view of the applicable law, according to this decision today from the Eleventh Circuit.

Eleventh Circuit: Medicaid. Maybe what was originally a $4.2 billion settlement deserves an 84-page, 34-footnote decision on appeal. But then this was an appeal from an order dismissing an intervenor's claims -- specifically, the United States's claims -- in the silicone breast implant settlement out of the Northern District of Alabama. The Eleventh Circuit reversed the dismissal, allowing the government's Medicaid reimbursement claims to go forward.

Eleventh Circuit: Qualified Immunity. Continuing its tradition of giving state actors the benefit of the doubt about whether the unconstitutional nature of certain conduct was clearly established, the Eleventh Circuit today in this case affirmed a trial court's decision that qualified immunity protected two Alabama community college officials from claims under 42 U.S.C. § 1983. The claims were based on the plaintiffs' Fourteenth Amendment right to equal protection and the defendants' alleged conduct permitting the plaintiffs to be victims of same-sex sexual harassment. The appellate court held that, between 1983 and 1988, same-sex sexual harassment was not clearly unconstitutional under the Equal Protection Clause.

Eleventh Circuit: Antitrust/Patent Law. It's a great day when patent law and antitrust law intersect as they did today in this case. The Eleventh Circuit reversed a summary judgment that held, as a matter of law, that certain agreements between three pharmaceutical companies violated the antitrust laws. The court gave an extensive discussion of the issues to be addressed on remand, including how the existence of a subsequently invalidated patent can affect an antitrust analysis. The court acknowledged that a portion of its decision potentially conflicts with a Sixth Circuit decision (this one) from earlier this year.

Eleventh Circuit. Boy, it sure feels good today, especially today, to know that the federal appellate eye watching over Florida (not to mention Georgia and Alabama) is that of the Eleventh Circuit. That court released four scholarly, and perhaps a bit lengthy, decisions today, each of which will be blogged in the posts that follow.

Even the Air in West Palm Is Expensive. West Palm Beach has a law that lets property owners sell the air above their property, according to this story from today's Palm Beach Post. More specifically, to the extent the zoning rules allow a property to be developed higher than it currently stands, the air between the current structural height and the maximum structural height can be sold if the property owner accepts a historical designation for the site. Must be an interesting-looking deed.

When "Homeowners Association" Becomes An Oxymoron. Anyone recall the story of George Andres, the Jupiter man who flew an American flag from a 12-foot pole in his yard to the great dismay of the local homeowners association? Today's Miami Herald has this story on how the man is about to lose his house so the association can collect its attorney's fees.

More on the "Just Ducky" Bartow Display. Today's Orlando Sentinel has this story on why Bartow's monument displaying the Ten Commandments and other historic legal documents will probably survive a constitutional challenge and how one group thinks the challenge is worth fighting anyway.

If You Thought "Choose Life" Could Be Taken Different Ways… The Sons of Confederate Veterans wants Florida to add a license tag honoring the state's southern heritage with a confederate flag, according to this story from today's Orlando Sentinel. The story foretells strong opposition to the proposed plate from Governor Bush and the NAACP, among others. You can also check out this post below for another discussion on Florida's license plate options and a link to the state's current cornucopia of plates.

Saturday, September 13, 2003
Abstract Opinion: My View.

On September 11, 2003, the Florida Supreme Court unanimously ruled that Florida's public records law does not apply to private email found on the computers of state and local public employees. The three-judge district court panel that previously heard the case reached the same unanimous conclusion, as did the circuit judge who originally heard the dispute. The complete agreement among all judges who heard the case should suggest that the losing side simply lacked a valid argument, and yet a September 12, 2003 article published by the St. Petersburg Times derided the decision, directly calling it "a defeat for First Amendment advocates." The story listed a string of quotes from the Times's supporters criticizing both the decision's supposed ill effects and the public records law's inability to accommodate modern technologies. Nothing in the story explained the rationale consistently set forth by each court that heard the case.

Perhaps this should come as no surprise. The Times was the losing party in the case. The newspaper had attempted to use Florida's public records laws to obtain copies of private email from the computers of two City of Clearwater employees, and the courts at every level rejected the Times's efforts. Curiously, the Times's article does not make the paper sound bitter about its loss. Rather, the author and the critics quoted in the story appear to believe that the case was wrongly decided. Unfortunately, their misunderstanding of the law conveys a misimpression that the Supreme Court erred, when it did not.

In the case, the Times wanted the employees' private email to investigate whether the city workers had been using their work computers to conduct a private business. Denying the Times access to that email no doubt frustrated that investigation, and even a cursory glance at the Times's story reveals that it is this frustration that underlies the dissatisfaction with the Supreme Court's decision. In short, the paper and its supporters believe that they should be able to examine a public employee's computer to determine if the employee is using that computer for non-work related activities. I understand and respect the Times's desire here, but this is where the paper and its supporters have gone astray on the law. Whether it is a good idea that they be allowed to conduct such investigations was never the question before the courts. The Times was attempting to use Florida's public records law to gain access to private email, and the only question was whether that law considers a private email on a public employee's work computer to be a public record.

The answer, we now know for certain, is no, and a little historical background helps to show why. The Florida Legislature first enacted a public records law almost a century ago. In 1967, the Legislature formally defined the term "public records" as "all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency." With this definition, the law read very broadly, but in 1992, the Florida Supreme Court determined that, for constitutional reasons, the law could apply only to the executive branch and local government entities. This meant that, just over 10 years ago, nothing in the public records law guaranteed the public any right to access the many documents created or received by members of the Legislature and the judiciary in the course of their official duties.

To correct this problem, the Attorney General at the time, Bob Butterworth, proposed the adoption of a constitutional amendment that would make all three branches of Florida's government subject to a public records law. In the 1992 general election, the people of Florida approved a constitutional amendment giving the public access to "any public record made or received in connection with the official business" of Florida's public bodies. This is the law today, and when someone wants to know whether something can be obtained through the public records law, the critical first step in the inquiry is to determine whether the thing sought was made or received in the course of official business. If it was not, then it is not a public record.

So if you are a public employee and your spouse sends you a birthday card and a birthday email, you will not receive either of them in connection with your official business, and thus neither one will be a public record. You can throw them away or delete them, as the case may be, without breaking the law against destroying public records. The result does not change if the email is social correspondence from a friend, a note to a significant other, or a written plan for how to operate the business you run on the side -- unless there is some connection to your official business as a public servant or the document is later received by a public employee in connection with official business. By the same token, if you send an email about your work from your home email account to your boss's home email account, that email is a public record, even though it never sets a virtual foot down in a government computer. That email must be kept and, if requested, made available to the public.

I have worked in the judicial and executive branches of Florida's government, serving as a law clerk at the Fifth District Court of Appeal and as Deputy Solicitor General of Florida, and I can say from personal experience that Florida's public servants take the public records law very seriously. The law is comprehensive and does an excellent job of capturing what it is meant to capture: all materials reflecting your work as a public employee. The law was not designed to help the public monitor how public employees use government property, though the law can certainly serve that purpose to some extent. If the people of Florida want to make every email in a public employee's possession a public record -- a perfectly legitimate proposition -- then they should support a new statute or constitutional amendment to that effect. In the meantime, public discussions about the current law should acknowledge its benefits, and its limitations, and accurately inform the public of both.

Jury Size: 12, 6, or ? If you've ever wondered why trials in Florida most often have 6-person juries, not 12, or if that's constitutional, or where the "12" number came from in the first place, check out this decision yesterday from the Fifth District.

Eleventh Circuit. The Eleventh Circuit yesterday granted rehearing en banc (meaning by the full court) of the court's earlier 3-judge panel decision in United States v. Frazier. The case concerns the exclusion of expert testimony in a sexual assault case and the deferential review of a trial court's decisions regarding expert testimony. You can read the original panel's decision here, and you can read yesterday's order vacating that decision and granting rehearing en banc here.

First District. Some people just can't get enough case law on standing, as in standing to bring a lawsuit. If you're one of them, check out this decision yesterday from the First District. The court ultimately held an Alachua county resident did not have standing to challenge a county's decision to authorize a nonbinding voter referendum on universal health care. The man's challenges were based on "taxpayer standing," the First Amendment, and the Equal Protection Clause of the Fourteenth Amendment.

First District. Ever wondered how tough it is to modify an original determination about child custody (or as it's now often called, primary residential responsibility)? It's very tough, as seen in this decision yesterday from the First District.

First District. The next time you decide to plead guity to a crime or two, remember that you can waive your constitutional rights in doing so, and that this may not be a bad thing. Take, for instance, this decision yesterday from the First District, where a defendant entered a plea bargain regarding two charges. He could not have been convicted of both charges without violating the constitutional prohibitions on double jeopardy. Nonetheless, the bargain was to the defendant's advantage, and the appellate court refused to reverse the convictions on double jeopardy grounds.

Second District. The Second District reminds us in this decision yesterday that while a contract may entitle you to attorney's fees if you win in the case, you are generally on the hook for whatever additional attorney's fees are incurred in determining the amount of the initial award.

Friday, September 12, 2003
A Sign of the Times. As mentioned earlier in this post, the St. Pete Times yesterday lost its effort to obtain goverment workers' private emails in this 7-0 decision by the Florida Supreme Court. You can read the Times's own coverage of the decision in this story from today's paper. Unfortunately, the Times gives you only one side of the story, and it's the legally incorrect side. Tomorrow, I'm going to post a short piece explaining why the St. Pete Times's view of Florida's public records laws is incorrect and why the paper lost its case 11-0. (The Times lost before the trial judge, a unanimous three-judge district court, and a unanimous seven-justice supreme court.) I hope you'll check it out.

The Bartow Monument. The unveiling of the latest civic monument to portray the Ten Commandments went off without a hitch yesterday in Bartow, Florida. Supporters of the monument apparently feel it may not even be challenged, based on what they see as its balanced presentation of historic legal documents. You can read about the monument and reaction to it in the Orlando Sentinel, the Lakeland Ledger, the Tampa Tribune, and the St. Pete Times.

Jury Verdict. As reported by the Orlando Sentinel in this story, an Orlando jury has awarded a man $668,000 after a waitress at one of the Disney resort restaurants spilled a pot of coffee on his lap.

Eleventh Circuit. If you're interested in constitutional standing issues, or if you're interested in reading about why the Eleventh Circuit believes there's no point in declaring Alabama's "deviate sexual intercourse" statute unconstitutional under the U.S. Supreme Court's decision in Lawrence v. Texas, or if you're wondering about some of the potential limits on the Lawrence decision's application, then you should read this decision released yesterday by the Eleventh Circuit.

Thursday, September 11, 2003
Private Records. State and municipal employees across Florida can stop wondering whether, say, pornographic spam that somehow made its way to their inbox is a public record that must be preserved and, upon request by anyone, disclosed. The Supreme Court of Florida today announced in this case that the mere fact an email is found on a government employee's computer does not make that email a public record, discoverable by a public records request. The case is quite interesting. Wonder which media interest was advancing the argument that all email on a government worker's computer is a public record? Abstract Appeal's hometown paper, the St. Pete Times.

Commandments at Work. The media frenzy that fed on Alabama's Ten Commandments display controversy may be headed to Bartow, Florida, where a monument that includes the religious directive will be unveiled today. Apparently, unlike Alabama's display, the Ten Commandments are merely part of the Bartow monument, which also includes excerpts from the Magna Carta, the Bill of Rights, and Hammurabi's Code. Read about the display here in today's Orlando Sentinel.

Schiavo Case. The latest update, available here from the Tampa Tribune, is that Terri Shiavo's parents' motion asking Judge Greer to recuse himself has been denied. The motion alleged that the judge was biased in favor of Terri's husband.

Real Video. Ever hear one of those stories about a plaintiff who brings a lawsuit, claiming he's injured, and the defense comes up with a videotape showing him doing all sorts of outdoor activities? Should the court just "throw the case out"? Well, the Fourth District didn't think so in this case, where the appellate court reversed a trial judge's decision to dismiss a case with prejudice. The plaintiff claimed his back was so injured that he couldn't climb stairs without pain or change a tire but the defense obtained a video of the plaintiff changing a tire, climbing a ladder to his roof, lifting a motor to the roof, and cleaning his roof's gutters. The appellate court held that whether the plaintiff's claims and the video were truly inconsistent was debatable under the circumstances of the case, and thus a jury should determine the merits of the plaintiff's claims. Should be a fun trial.

Hey, Legislature! Election law fans will enjoy reading this decision yesterday in State Senator Alex Diaz de la Portilla's appeal of $311,000 in fines imposed on him by the Florida Elections Commission in connection with his 1999 senate campaign. The Third District held that a candidate cannot be vicariously responsible for a campaign treasurer's reckless conduct, at least not where the candidate shouldn't actually know of a discrepancy in the treasurer's reports. The court found, however, that candidates can be personally responsible for approving some items, such as ads, that don't meet election law requirements. The court ultimately called on the Legislature to revisit and clarify the law regarding a candidate's certification of campaign reports.

Sexual Predator Act. Florida's Sexual Predator Act does not violate a "predator's" rights to due process or privacy, nor does it infringe on the judiciary's independence, according to this decision yesterday from the Fourth District.

Horseshoes, Handgrenades, and… Contracts. This decision yesterday from the Third District reminds us that under the contract doctrine of substantial performance, close can be good enough.

Bernice Bowen. Those who recall the high profile case of Bernice Bowen, who was charged with being an accessory after the fact to murder and escape in connection with the cop-killing crimes of her boyfriend, Hank Earl Carr, may be interested in reading this decision yesterday from the Second District. The court affirmed Bowen's convictions.

A Pair There. And a pair of decisions yesterday on the relatively rare subject of tax law. First, the Third District released this decision regarding when real property is conveyed to a "purchaser" for purposes of Florida's documentary stamp tax. And in this case, the Fourth District returned to the increasingly common subject of taxing "Cruises to Nowhere," with the court holding that a cruise to nowhere qualified for a partial tax exemption because of its involvement in foreign commerce.

A Pair Here. A pair of decisions yesterday on attorney's fees. First, in this decision from the Second District, the court looked at whether an 18-month postjudgment delay in seeking attorney's fees under the former version of § 57.105(1) was unreasonable, and the court held it was. And in this decision from the Third District, the court reminds those working for contingency fees that the amount of the fee can't be based on a total that includes the amount of a statutory fee award.

Opinion Day. That seems a fitting title for yesterday, since four of the five DCA's released opinions. The new decisions cover a variety of subjects, as you'll see in the next several posts.

Wednesday, September 10, 2003
Buying Power. In what appears to be a first for Florida, residents of Winter Park yesterday approved a referendum that permits city officials to buy Progress Energy's local electric lines, poles, and substations and run the city's power themselves -- with an amazing 49 percent of eligible voters voting. All that according to this story in today's Orlando Sentinel.

More News. Are Florida's campaign fundraising laws a bit lenient? Yes, suggests this story in today's Tallahassee Democrat on how that will change for federal elections if the United States Supreme Court upholds last year's federal election reforms.

Schiavo Update. This story from the Tampa Tribune has the latest news on the Terry Shiavo situation -- which apparently includes a pending motion for the trial judge to recuse himself, more harsh words exchanged by the attorneys in the case about each other, and what appears to be a motion filed by the husband with the Second District asking the court to enforce its mandate that his wife's feeding tube be removed.

In the News. Florida State University is cracking down on students using campus computer networks to conduct illegal file-sharing, according to this story in today's Tallahassee Democrat… And the Tampa Tribune has this story about a Tampa attorney who's suing his ex-wife for breach of fiduciary duty, intentional infliction of emotional distress, assault, and battery.

Tuesday, September 09, 2003
Eleventh Circuit. In this case decided today by the Eleventh Circuit, the court examined the constitutional standing of Focus on the Family to sue a Florida transit authority for supposedly denying the group the right to place ads on bus shelters, ads concerning a conference the group holds that addresses homosexuality as a preventable condition. The decision also touched on the state action requirement of 42 U.S.C. § 1983 and the procedural rule on failure to join an indispensable party.

Monday, September 08, 2003
Tip. If a friend asks you to hold $940,000 in cash and says he's simply hiding it from his wife, just say no. In this story from earlier today, the AP reports on a South Florida attorney who claims he just didn't say no. Turns out the friend was a drug dealer and the money was drug money. The lawyer received a four month prison sentence for conspiring to avoid financial reporting requirements.

Eleventh Circuit. Warning: If you experience an adverse reaction when you encounter lengthy, in-depth, footnote-laden statutory construction analysis, then you should avoid this decision released earlier today by the Eleventh Circuit. In the 50-page decision, with 37 healthy footnotes, the court decided that the Americans with Disabilities Act, 42 U.S.C. § 12203, imposes individual liability on persons who engage in prohibited discrimination in the provision of public services. The plaintiff in the case was an inspector who, according to his complaint, reported ADA violations to the City of Plantation at the city's request, following which certain city officials retaliated against him by digging up private information on him and releasing it to the media.

In the News. The Times-Union has this story about the trial of a Jacksonville foster care parent charged with drowning a child in her care. Note that the defense may be that the woman "was too heavy to have committed the crime"… The Orlando Sentinel has this story on a proposal to "re-energize" Orlando's downtown by extending the drinking hours past 2 a.m.… And the Tampa Tribune's Daniel Ruth has this, well, annoyingly written column criticizing Governor Bush and his recent boasting about his One Florida plan.

We Noticed. American Lawyer's Law.com is carrying this story on how the Eleventh Circuit's "About Face In Immunity Case Shocks Lawyers." The article is about how the circuit court, on a sua sponte motion for rehearing, recently reversed course from its earlier decisions in a qualified immunity case. You can read the first decision here, you can read the second decision here, and you can read the latest decision here.

Sunday, September 07, 2003
Abstract Improvements. A Google search function is now added, along with two RSS options. (An RSS page generated by this site would be best, but, well, let's just say I'm waiting patiently for Blogger Pro to be "retooled.") Perhaps the most amusing addition to the page is the BlogShares button. Who knew that shares of Abstract Appeal were being bought and sold? The blogosphere is certainly vast, and in many ways peculiar.

There's also an updated About page.

To those of you who've been reading this blog, and to those of you who are new to it, thanks very much for stopping by.

Saturday, September 06, 2003
The "Chuck E. Cheese Exception." The Daytona Beach News-Journal has this story about a gambling investigation into two Ormond Beach casino-like establishments. The story explains that these businesses, and others like them, may fit within a "loophole" in Florida's gambling laws that a Volusia County Sheriff's Office spokesman calls the "Chuck E. Cheese Exception."

In the News. The Florida Times-Union has this story on how the U.S. Department of Education is investigating complaints that Florida's FCAT exam discriminates against disabled students… The Orlando Sentinel's Darryl Owens has this column suggesting that the NAACP's strategy of suing over standardized tests is the wrong way to go… Finally, the AP has this Q&A report regarding Florida's class-size constitutional amendment and this story on how Florida law permits high school students to forgo their senior year of school.

Fifth District. This decision yesterday from the Fifth District is notable for two reasons. First, the court walks through the numerous steps necessary to preserve for appeal an objection to a trial court's decision not to strike a prospective juror for cause. Trial counsel in the case failed to preserve the issue. The other reason the case is notable is the eloquence with which Chief Judge Sawaya rejects an argument that a juror's expressed uncertainty about her qualifications to sit in judgment on the case justify an inquiry into the jury's deliberations:

A trial represents the expenditure of valuable public and private resources. Jurors, as private citizens, are called upon to invest their time and energy in judicial proceedings for little financial remuneration with the expectation that fulfillment of their civic duty will be sufficient reward for their service. Summoned as they are from all walks of life, most jurors are not trained in the judicial process and many find it difficult when confronted for the first time with the niceties of the law and its array of procedures. The jurors hear the evidence and the legal instructions and then struggle to sort through it all as they search for the truth. Often times they must make extraordinarily difficult decisions in cases that have very serious consequences for all of the participants. To allow inquiry into the jurors’ emotions and feelings of inadequacy as they go through this often difficult process is to expect something closer to perfection than they and our judicial system can legitimately be expected to give. Although there will always be disappointed litigants in search of a reason to undo what a jury has done, to allow improper inquiry of individual jurors in furtherance of that effort poorly serves the ends of justice, obstructs finality in judicial proceedings, and cheapens the investment made by those who are willing to search for the truth through the judicial process and proclaim it through their verdict.
A long quote, but words well spoken.

Fifth District. Appellate practitioners may be interested in this decision, where a party sought a writ of certiorari from the Fifth District quashing a trial court order permitting depositions of the party's attorneys. The depositions were to be taken in connection with a post-judgment motion for attorney's fees under § 57.105 (1997). The interesting part is that the appellate court granted relief not by issuing a writ of certiorari but by treating the proceeding as a nonfinal appeal under Rule 9.130(a)(4). The court made no mention of the line of decisions restricting post-judgment appeals under Rule 9.130(a)(4) to appeals of orders that effectively end the judicial labor with respect to the post-judgment matter at issue.

Questions, questions. In 2001, amended § 90.404(2)(b)(1) loosened the formerly stringent rules on introducing evidence of prior abuse by a defendant charged with child molestation. In this case, the Second District examined the statute and held it constitutional, though the court certified the following to the Supreme Court of Florida as a question of great public importance:


Fifth District. In the first of several noteworthy criminal law decisions decided yesterday, the Fifth District held that, under the circumstances of this case, Florida's 10/20/Life law does not violate the Eighth Amendment's Cruel and Unusual Punishment Clause.

Friday, September 05, 2003
Going Blackberry! According to this story in today's St. Pete Times, Florida's House of Representatives may be on its way to giving a Blackberry to each member for wireless email communications. That makes me feel way ahead of the game. My firm has been using Blackberries since January 2001, and I can attest to how valuable -- and how addictive -- they can be. They're pretty much as bad as this whole Internet thing. Maybe worse.

Sooner Bet On The Snowball. A couple days ago, Abstract Appeal offered this post about an Orlando lawsuit challenging -- on equal protection grounds -- state and local laws that prohibit women, but not men, from exposing their breasts. Mike Thomas, a columnist with the Orlando Sentinel, offers his thoughts in this column today about just how unlikely it is that the suit could succeed.

In the News. The Tallahassee Democrat has this story on Governor Bush's comments yesterday favoring repeal of the class-size constitutional amendment Florida voters passed last year… The Orlando Sentinel has this story on how an administrative law judge has rejected as premature a challenge to the Fish and Wildlife Conservation Commission's new policy to treat feral cats as a potential threat to Florida's wildlife… And the Miami Herald has this story on Germans' furor over a Miami Beach-area man who's receiving the German equivalent of welfare to live in sunny South Florida -- because it would be too depressing for him to move back to Germany.

Thursday, September 04, 2003
More On That ELR Case. The economic loss rule case posted below, with its certified questions to the Florida Supreme Court, offers the Florida high court a chance to define, or redefine, the law governing the fascinating area where tort law and contract law converge. You could write a book on the subject, and if you did, you might begin it with this thought: "The economic loss rule is no rule at all. It is a doctrine, a series of principles that operate together to determine whether the law recognizes an actionable duty in tort between two parties." That would probably be a good start.

Supreme Court. Abstract Appeal's first post of a Florida Supreme Court decision is going to be a pithy one: Today, in this case, the court (recently back from its summer recess) decided that stormwater fees that the City of Gainesville intends to charge are valid user fees, not special assessments, and thus are valid collateral for a proposed bond issue.

Questions, questions. If you're an economic loss rule fan (who wouldn't be?), then you're going to love the set of questions certified to the Supreme Court of Florida today by the Eleventh Circuit in this case. Here are the questions:





More on the case later.

Don't Call Us Before October 1, Either. Floridians should remember that we have our own "Do Not Call" list, maintained by Florida's Department of Agriculture and Consumer Services. This reminder is prompted by this story today from the AP, which describes how the State is currently prosecuting a Sarasota company for making numerous calls to persons on Florida's list.

Fourth District Can you recover attorney's fees for litigating the amount of an attorney's fees award when entitlement to that award is based on § 57.105's mutuality of contracts provision? In this decision released yesterday, the Fourth District said no. Chief Judge Farmer dissented.

Fundamental Error. The Second District yesterday released this decision on fundamental error in the context of jury instructions in a criminal trial. Relying on what it viewed as controlling Florida Supreme Court precedent, the Second District utilized a narrow interpretation of the fundamental error concept. The court also certified conflict with the First District's decision in this case, where that court applied a more expansive interpretation of the concept.

Third District. Yesterday, in this case, the Third District reversed a trial court's decision not to permit a late but potentially dispositive amendment to the pleadings in the case. Interestingly, appellate counsel conceded that "pure negligence" delayed the effort to amend below. There goes honesty again, being the best policy. Also, the Third District's opinion is chock full of other authorities on the amendment point.

Eleventh Circuit. Two quick notes on opinions released Tuesday by the Eleventh Circuit… First, if banking's your thing and you're interested in the distinction between presenting a check for payment and presenting a check for collection, and how the distinction affects the midnight deadline rule under Florida law, you'll want to see this decision. Also, if you've been charged with a murder-for-hire scheme under 18 U.S.C. § 1958, or you just like a good old-fashioned down-in-the-details debate over statutory construction (like the currently vacationing Statutory Construction Zone), then you'll want to look at this decision by Judge Barkett and the counterpoint by Judge Marcus.

Wednesday, September 03, 2003
In the News. Florida executed Paul Hill within the last hour, according to this report from the AP. Abstract Appeal is not going to speak to the politics or the morality of Hill's actions or the State's punishment. Many bloggers are taking up those issues. Suffice it to say here that Florida law unambiguously imposes the death penalty.

Speaking of Equal Protection… The AP reports today in this story that 10 women have filed a lawsuit asking a federal court in Orlando to declare unconstitutional two state statutes and a Brevard County ordinance because they prohibit women, but not men, from exposing their breasts in public.

The story notes that the women range in age from 14 to somewhere in the 70s. Yes, that's right. Fourteen.

Abortion-Related Decision. Earlier today, the Third District issued an opinion that will likely be noticed by the mainstream press for one holding but may be overlooked for another. In this decision, the court rejected challenges to certain rules of Florida's Agency for Health Care Administration. The Florida rules at issue permit Medicaid reimbursement for abortion-related services only when the life of the mother is threatened or the pregnancy is the result of rape or incest. Florida's rules essentially track the federal law that limits to those same situations the circumstances under which the federal government will reimburse states for their Medicaid costs.

The plaintiffs challenged the law based on the equal protection guarantees found in the federal and Florida constitutions. The plaintiffs argued that the limitations on reimbursement for abortion-related services amounted to discrimination against women "because funding exists for all necessary medical services for men."

The court rejected the federal challenge based largely on the United States Supreme Court's decision in Harris v. McRae. More interestingly, and more likely to be overlooked, the court also rejected an argument that the Florida Constitution's equal protection provision requires a strict scrutiny analysis of any difference in how men and women are treated, an argument based on the 1998 amendment to Florida's provision adding the words "female and male alike" to its guarantee. The court held that the addition of those words to the constitutional provision does not require that a scrict scrutiny test be used to examine all gender-based differences in treatment.

One Florida. Yesterday, Governor Bush released this statement saying that his One Florida plan has resulted in an increase in the number of minority students attending Florida's universities. You can read more about the release, and some responses to it, in today's Tallahassee Democrat.

Tagging Up. Ever wonder if Florida's law enforcement officers are bothered by the number of specialty license plate tags available in Florida? You might think the number of different designs could make it more difficult to identify quickly whether a tag is a Florida tag. Well, this story in today's Miami Herald reports on just such criticism by law enforcement.

If you're curious about what Florida's cornucopia of tags looks like, you can access the whole display -- all 54 of them -- from here. Note that, according to the story mentioned above, the Legislature has given the go-ahead for an additional 40 plates that remain in the approval process.

Destination Center. What county's residents have a fifty percent chance the Constitution prohibits them from running for President? According to this story in today's St. Pete Times, one out of two people living in Miami-Dade County was not born in the United States.

Schiavo News. Today's St. Pete Times has this story on how Terry Schiavo's parents have now turned to a federal court for assistance in their battle against Terry's husband, and how Judge Lazzara yesterday questioned whether federal courts have any jurisdiction in the matter. The story quotes Judge Lazzara as stating that the complaint in the parents' new federal lawsuit is "a 'quintessential shotgun pleading' designed to delay proceedings." The court apparently gave the parents leave to amend their complaint.

Tuesday, September 02, 2003
Killer Yewts. The AP is running this story about an oral argument this morning at the Fourth District. According to the story, Judge Hazouri questioned "whether some children might be too young to be locked away with no hope of parole." The court was hearing an appeal in the case of a young man who, when he was 12, killed a 6-year-old child; he received a life sentence for the crime.

In the News. Today's St. Pete Times has this story about the looming October 1, 2003 end to a two-year window in which convicted criminals can seek DNA testing in old cases… The Miami Herald has this story entitled "Politicians' Farming Interests Lead To Drought Of Laws For Workers"… And the Sun-Sentinel has this story about what's motivating the legislator who's pushing for a constitutional amendment to permit direct enforcement of Florida's seat-belt laws.

Monday, September 01, 2003
Ouch! It's not often that a Florida newspaper columnist refers to a law and its passage with words like these:
The process was not fair. It was not democratic. It was stacked, greased and paid for. The process was corrupt. And they thought that if they timed it to happen exactly between elections, you, the voter, would be a sucker and forget.
But Howard Troxler had these words to say in today's St. Pete Times. You can read his column here. You can read the law Howard's talking about here. And you can read a FAQ on the law, from Florida's Public Service Commission, here.

Many thanks… to Matt Stein of Schteino.com for adding Abstract Appeal to his blogroll. Matt is a 1L this year at the University of Miami Law School. His blog, which considerably predates his law school experience, is well done. It's also the first blog I've seen by a Florida law student. It certainly won't be the last. Good luck in school, Matt.

Questions, questions. Does Florida law require a 12-person jury, rather than a 6-person jury, where the crime charged is a capital crime but under the circumstances of the case the defendant cannot receive the death penalty? In this decision from the First District, released Friday, the court answered this question in the negative but certified the following to the Supreme Court of Florida as a question of great public importance:

Judge Benton dissented.

Review Tip. In the context of an appeal from a nonfinal order regarding the entry of a temporary injunction, this decision released Friday by the Fifth District reminds appellate lawyers that an appellate court will not consider materials that were not presented to the trial court for use in making the decision on review. See footnote 2 at the end of the opinion.

Testing DUI Tests. What do you think? There appears to be no disagreement that the following statute -- commonly known as Florida's "implied consent law" -- permits law enforcement to use blood and breath tests for DUI exams only if the tests have been approved by the Florida Department of Law Enforcement:

Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath, and to a urine test for the purpose of detecting the presence of chemical substances as set forth in s. 877.111 or controlled substances. . . .
Here's the question: Does the approval-required language in this statute also apply to urine tests? The DCA's are now split on the answer. In this decision released Friday, the Fifth District said no. Previously, in this decision, the Second District said yes. Expect the Supreme Court of Florida to resolve the conflict.

Fifth District. If you're interested in a good Fourth Amendment analysis regarding the seizure of incriminating evidence by police, or if you're just looking for proof that the OnStar system works at finding stolen vehicles, check out this decision from the Fifth District.

Discussions On Abstract Appeal Are (At Best) Academic and Are Not Legal Advice. Consult an Attorney in Your Jurisdiction if You Require Legal Advice.

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