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Friday, October 31, 2003
Friday Florida Trivia Answer. There are two current Florida appellate judges who share this rare appreciation. First, Judge Robert L. Shevin, of the Third District, previously served as the Attorney General of Florida and as a member of both the state House and Senate. Judge Charles T. Canady, of the Second District, previously served as a member of Florida's House of Representatives and the United States House of Representatives, and he served as general counsel to Governor Jeb Bush.

Friday Florida Trivia! The constitutional principle of separation of powers has been much discussed of late because of recent events in the Terri Schiavo case. Which current Florida appellate judge can appreciate this principle from the rare perspective of having served in the legislative, executive, and judicial branches of Florida's government?

I'll post the answer today around 4:45 pm.

More Schiavo News. So what exactly did Michael Schiavo argue in the brief he filed Wednesday to support his constitutional challenge to the new law that permitted Governor Bush to order Terri's feeding tube reinserted? He made the following arguments, though the brief devoted the most attention to the first two:

-- the law violates Terri's right to privacy
-- the law violates the constitutional principle of separation of powers
-- the law violates Terri's right to equal protection
-- the law is an impermissible bill of attainder
-- the law is an invalid special law
-- the law is unconstitutionally vague

You can read Michael's brief here. I encourage everyone to read this brief and to read the opposition briefs that will be filed next week. I'll link to them after someone posts them on the Internet.

This is a great opportunity for people who rarely or never get an opportunity to see written legal arguments in an appellate brief-style format. Unfortunately, most people never see such things, which is why when I tell non-lawyers that I'm an appellate lawyer, they usually look at me and just say, "Oh. Okay."

Appellate lawyers basically write legal arguments in the form of briefs and present them to appellate courts at what's called an oral argument. The Schiavo case is not presently on appeal, but the parties and the judge are treating it as an appellate case even at the trial level -- in the sense that they're referring to the parties' legal memos as briefs and in the sense that Michael's attorneys wrote his "brief" in the format of a formal appellate brief. Why are they doing this? Probably because the issues at this point are purely legal ones -- there are likely not going to be factual issues that will require a trial. The trial judge will probably read the parties' briefs, hear argument from the attorneys, research the law on his own, and decide which side is correct on the various issues.

Since I'm encouraging folks to read legal briefs, I'll add this caveat: Remember that a brief is legal argument by only one side. Always read the briefs from all sides if you want to gain a full understanding of the arguments and the issues. Most importantly, to understand which side is actually correct, read the decision by the court that resolves the arguments and decides the issues.

Schiavo News. The Schindlers have asked Judge Baird for permission to intervene in Michael Schiavo's case against the Governor, which would allow them to file a brief in opposition to the one Michael filed on Wednesday. The Schindlers have also been joined by the American Center for Law and Justice. Read about it all in this story from today's St. Pete Times.

Also, Miami Herald columnist Jim DeFede has this piece today on the ethics surrounding Terri's case.

Extortion!?! Tampa Tribune columnist Daniel Ruth is really, really upset about the recent decision to run Florida's planned high-speed rail line from the Orlando International Airport to the Disney area. You can read his latest column here, and you can read my earlier post on the decision here.

Education Concerns. The Orlando Sentinel has this story today, entitled, "Black activists blast effects of FCAT."

Water Fight. Escambia County officials are going to sue some major oil companies for allegedly polluting drinking supply water wells. Read about it in this story in today's Times-Union.

No More Power Gliding. Delray Beach has prohibited certain types of extreme water sports near its municipal beaches, according to this story from today's Sun-Sentinel.

Extra Charges. Palm Beach County officials are recommending that the county not alter its practice of charging some members of the public more than the cost of copying to obtain technical property and mapping information. That practice may be contrary to Florida law, as Florida's Attorney General explained to the county last month in an advisory opinion, because public records are required to be available to the public at the cost of reproduction. Read about it here in today's Sun-Sentinel. You can also read the Attorney General's advisory opinion here.

Puppy Problems. The Sun-Sentinel has this story on two lawsuits filed against a puppy store for fraud and breach of contract based on alleged misrepresentations about the health and source of puppies the store sells.

Police Admit Arresting Wrong Man. Bradenton police have acknowledged that they arrested the wrong man for a murder charge. The man had been picked from a set of photos by an eyewitness to the murder, but the witness apparently made a mistake. Read about it here in today's Bradenton Herald.

Thursday, October 30, 2003
Schiavo News. You can read a copy of Michael's legal brief, described in the preceding post, here.

Schiavo News. Yesterday, Michael Schiavo filed a legal memorandum in the trial court (Judge Baird's court) detailing his arguments against the constitutionality of the new law that permitted Governor Bush to order Terri's feeding tube reinserted. Read more about it all in today's St. Pete Times and Orlando Sentinel. Memoranda in opposition to Michael's position -- presumably from the Schindlers, the Governor, and the Attorney General -- are due next Wednesday.

More Dead Wood Voters… Some 6,600 out of 100,000 ballots mailed to Broward County residents by the county elections supervisor have been returned as undeliverable, and some think such "dead wood" voter problems are avoidable. Read about it here in today's Miami Herald.

Class Size Redux. The AP has this report on how efforts are now formally underway with a drive to give Florida voters a chance to repeal the constitutional amendment they approved in 2000 to limit school class sizes. You can read the amendment here.

Fourth District: Disqualification of Trial Judges. If you've been following the Terri Schiavo case and noticed that reports occasionally reference the Schindlers' numerous efforts to have Judge Greer recuse himself or be disqualified, you might be interested in reading this decision issued yesterday by the Fourth District. While it has nothing to do with the Schiavo case in particular, it does review some of the law involved in resolving disqualification issues.

Fourth District: Wasting Resources? In this decision issued yesterday, the Fourth District reversed a $79 restitution order in a criminal case because the state failed to connect the crime to the victim's loss as required by law. Judge Polen offered this take on the case's consumption of resources:

I agree with the majority’s reversal of this restitution order. Having said that, I write separately to note this entire appeal is about $79.00. This writer’s cynicism, bolstered by 23 years of experience in dealing with the juvenile justice [sic] system, emboldens me to suggest it is $79.00 which under most circumstances would not be paid by J.R. even had we affirmed.

My point is the alarmingly disproportionate value of the legal system’s resources – notably resources of the citizens of Florida – 4 judges, 2 public defenders, 1 assistant state attorney, 1 assistant attorney general, numerous clerks and other court personnel, plus the costs of transcripts, files, etc. – which have been expended to secure this reversal. All this leads me to the unsettling, and not too rhetorical question: Is it worth it? Put another way, even knowing that J.R. can bring such an appeal, and he is technically correct, in this age of shrinking budget dollars and overworked lawyers and judges, is it entirely appropriate to bring such an issue to an appellate court? For $79.00?
By the way, that "[sic]" is Judge Polen's, not mine.

Second District: Certiorari. This decision yesterday from the Second District is noteworthy for its discussion about the limited circumstances under which a defendant's attorneys can speak with a plaintiff's treating physicians. There is a much more interesting aspect to the case, however -- Judge Canady's dissent. Judge Canady argued that writs of certiorari should not be issued where the departure from the essential requirements of law is not "clearly established" under existing law and that an appellate court's mere disagreement with a trial court's view of the law is an insufficient basis to find this requirement satisfied.

Fourth District: Arbitration. In this case decided yesterday by the Fourth District, the court held that an arbitrator's discovery order was not reviewable by the courts, or at least not immediately reviewable. Interestingly, the issue of whether to arbitrate had previously been litigated in the case and the Fourth District viewed the courts' inability to review the discovery order not as a matter of subject matter jurisdiction but as a matter of enforcing the earlier mandate ordering arbitration.

Fourth District: Settlement Proposals. If you've been following the case law developments regarding whether a particular settlement proposal meets the requirements of Rule 1.442 of the Rules of Civil Procedure, then you'll want to take a look at this decision issued yesterday by the Fourth District. The case involved an offer that made no mention of punitive damages or attorney's fees and which was found to comply with the procedural rules.

Wednesday, October 29, 2003
Schiavo News. Today, in the case before Judge Baird, Michael Schiavo filed a legal memorandum challenging the constitutionality of the new law that permitted Governor Bush to order Terri's feeding tube reinserted. Read about the legal arguments contained in the memo in this update from the AP.

Schiavo News: Another Law? Today's roundup of local coverage on the Terri Schiavo case can be found in the St. Pete Times, the Tampa Tribune, and the Orlando Sentinel.

Perhaps the most significant item from these stories is that Florida Senator Bill Nelson has announced a proposed bill that would expand Medicare coverage to include a single doctor's visit to discuss end-of-life treatment issues. Don't expect any immediate constitutional challenges to that law. Meanwhile, though, back in St. Pete, briefs are due today from Michael Schiavo on arguments against the new Florida law's constitutionality.

You Can't Stop A Good Idea… When that band whose name I now refuse to mention was promoting its supposed suicide show in St. Pete late last month, St. Pete quickly passed an ordinance that banned conducting or promoting a suicide for entertainment purposes. I posted about that here. Pinellas County then passed a similar ordinance, and I posted about that here. Now it seems the folks in Tallahassee are considering a state-wide ban on such events, and you can read about that here, in today's St. Pete Times.

Boca Preps For Republicans. Anticipating demonstrations when Republican governors meet next month at the Boca Raton Resort & Club, Boca Raton officials have changed the city's laws on protests: no more paint, balloons filled with anything but air, or carrying detached wood or plastic longer than 12 inches. Read about it here in today's Palm Beach Post.

Separation of Powers at Work. A Tallahassee trial court yesterday ruled that a complaint against Florida's House of Representatives could contain allegations about a private, secure web site that the House allegedly wanted to create but could not contain allegations about how the House supposedly intended to use the site, since the latter deal too closely with how the legislative branch does its job. Read about the ruling and the lawsuit in this story from today's Tampa Tribune.

Preferential Treatment. Ward Connerly was in Tallahassee last night, and he explained to a group at Florida State University his views against racial preferences and for criminalizing discrimination. Read about it here in today's Tallahassee Democrat.

Questions, questions. If you find yourself involved in litigation with insurance companies over PIP coverage, you may be interested in the question that the First District certified yesterday to the Florida Supreme Court as a question of great public importance. The question, which concerns whether an insurer can recover attorney's fees pursuant to a settlement proposal where the insurer is being sued by an insured for PIP coverage, reads:

May an insurer recover attorney's fees under rule 1.442, Florida Rules of Civil Procedure, and section 768.79, Florida Statutes, in an action by its insured to recover under a personal injury protection policy?
You can read the First District's rather terse decision here.

First District. Appellate judges are always reminding us that motions for rehearing serve only limited purposes, as where the court has overlooked something. Attorneys and clients, however, often take a more broad view. This decision yesterday from the First District represents the former position -- the court denied a motion for rehearing based on the fact that the ground raised was not previously presented to the court, and thus the court had not overlooked anything.

Cases! I've been caught up in a series of things for much of the last day, so I haven't yet been able to post about some decisions released yesterday. I'll get to them -- and some news -- now.

Tuesday, October 28, 2003
Schiavo News. President Bush commented at a press conference today that he believes his brother "made the right decision." The Associated Press reports on the comment here. You can also read a transcript of the entire press conference here.

I'm going to take issue with one aspect of the AP story, and it has nothing to do with the President or Florida's Governor. The story concludes with these words:

Terri Schiavo suffered severe brain damage in 1990 when her heart stopped. Some medical experts have testified she is in a persistent vegetative state with no hope of recovery; others disagree. Her parents have argued their daughter could improve with therapy.
Reporting like this has no doubt contributed to many people misunderstanding that the issue of whether Terri has any likelihood of regaining some cognitive functioning has been litigated -- Michael Schiavo, the Schindlers, and others, including experts for both sides and a court-appointed independent medical expert, have already fought this battle in the courts at a trial and on appeal. The trial judge heard all of the evidence from all sides and concluded that Terri is in a persistent vegetative state and that there is no treatment option that could significantly improve her quality of life. Yet this AP story describes the situation as if two groups simply disagree on an issue that no court has resolved, as if justice and a day in court were still a day away. That's just not true. Check the Terri Schiavo Information Page if you'd like more details.

Capital Ideas. Quick -- where's the capital of Florida? If you said Tallahassee, you were right yesterday, and you'd be right tomorrow, but you're wrong today. Read about it here.

Schiavo News. After Michael's appearance on Larry King Live and the Schindlers' attorney then appearing on Greta Van Susteren's show, there are plenty of new quotes and comments to absorb.

Read the local coverage about it all at these links to today's St. Pete Times, Tampa Tribune, and Orlando Sentinel. For a glimpse of the national coverage, check out this story at cnn.com.

Tobacco Appeal. The plaintiffs in the Engle class action have filed a notice saying they will ask the Florida Supreme Court to review the Third District decision from earlier this year that reversed a $145 billion verdict in their favor and ordered the class decertified. Read about it in this story from the Miami Herald.

You can read the plaintiffs' notice here.

You can read the Third District's decision here.

Counting Voters. Guess which high ranking South Florida legislators skipped the final vote for last week's special session to watch the Marlins from the invitation-only owners' box? Read about it here in today's Miami Herald.

Smaller Classrooms? School officials in South Florida are glad that state officials have backed off on orders to require smaller rooms for classes, not just smaller classes. Read about it here in today's Sun-Sentinel.

Jury Verdicts. A Manatee County jury has awarded over $22 million in a medical malpractice case against HCA Health Services of Florida, through Blake Medical Center, and Doctors Sanford Elton and Bartholomew Vereb, according to this story in today's Bradenton Herald. The jury apportioned 24 percent of the fault in the case to HCA, 75 percent to Elton, and 1 percent to Vereb.

Monday, October 27, 2003
Schiavo News. According to this update from the AP, Judge Baird -- the trial judge hearing the constitutional challenges to the new law that permitted Governor Bush to order Terri's feeding tube reinserted -- has clarified that legal memoranda may be filed through Wednesday challenging the new law. Opposing memoranda (from the Schindlers, the Governor, and, presumably, Florida's Attorney General) are due one week later.

Mouse-bound. The AP reports here that the Florida High Speed Rail Authority has voted in favor of running the high speed line from Orlando International Airport directly to the Disney complex, rather than through or to the International Drive-area convention center. This rail will be taking shape over the coming years and could be a fantastic development for Florida, though there are still rumors that voters will be asked to rescind the constitutional amendment they approved in 2000 that requires construction of the high-speed line.

Abstract Thanks! Many thanks to the good doc at Family Medicine Notes, who, in this post, stated that "Abstract Appeal -- The Terri Schiavo Information Page is one of the few unbiased resources on the Internet that describes this tragic case."

That's my goal with regard to the Schiavo case -- to describe it accurately, from a legal perspective.

Slated! Greetings to all those who've found this blog through links on Mickey Kaus's kausfiles blog, over at Slate.

The Slate piece is extremely refreshing because it credits Abstract Appeal's Terri Schiavo Information Page with helping clear up what I view to be a popular misconception about this case: that Michael made the decision and the courts have simply allowed him to do it. As the Info Page explains, that's not what happened. Helping clear up misunderstandings about Florida's legal system and the events of this case is exactly why I've created that page.

Still More Schiavo News. This is just a reminder that Michael Schiavo, who has been silent in the media throughout this saga, will appear on Larry King Live tonight at 9 p.m.

More Schiavo News. The Tampa Tribune ran a column yesterday by Gary D. Fox, the attorney who represented Terri and Michael Schiavo in their 1992 medical malpractice suit. The column is interesting because it covers a point not discussed in the media lately: the reason Terri suffered the heart attack that led to her current condition.

I was unable to find a link to the column online, but here's an excerpt:

By all accounts, Terri was a fine young woman. She had a good job, a good marriage and many friends. Most who knew Terri, however, were unaware that she was sick. Terri suffered from an eating disorder known as bulimia nervosa, commonly called bulimia. The disease causes its victims to overeat ("binge") and soon thereafter vomit ("purge"). The cycle of binging and purging is extremely dangerous. The human heart, to work properly, requires a balance of the body's electrolytes. Vomiting can upset the electrolyte balance and cause abnormal heart rhythms that can lead to heart attack. That is what happened to Terri. One night, Terri purged, which caused her potassium level to drop low enough to cause a heart attack. Before fire rescue arrived and took her to the hospital, Terri's brain had been deprived of oxygen long enough to produce catastrophic brain damage.

The trial of the medical malpractice case established that the health care providers who treated Terri should have figured out that she had an eating disorder and referred her to the appropriate specialists for treatment.
The column also explains that a jury assessed the Schiavos' damages at over $6.8 million but found Terri to be at fault, too, leaving the Schiavos with about a $2 million award. The column does not mention but other reports indicate that the case later settled for half that amount.

Update: The St. Pete Times ran Fox's column as well, and you can access it online here. Many thanks to the reader who forwarded this link.

Schiavo News. First up, some stories from today's papers. This story from the Orlando Sentinel attempts to explain the differences between the popular perception of Terri's consciousness and the opinions of medical experts and the courts that Terri's movements are reflexive only.

Also, the Sun-Sentinel has this story, entitled, "Schiavo Case Rekindles Debate On Reviving People With Severe Brain Damage." The story examines medical views of Terri's case from all sides.

Tracks, Frontons On Way Out. The Palm Beach Post's Tom Blackburn has this interesting piece on the decline of Florida's pari-mutuels: horse racing, dog racing, and jai alai.

Clerk Fix. The Broward County Clerk of Courts may have finally cleared up the glitch that's prevented some arrest warrants from being cleared from records, resulting in erroneous arrests when persons were, for instance, stopped for minor traffic offenses. Read about it here in today's Miami Herald.

Line Troubles. What does it take to get a few miles of power lines moved underground? Some Boca Raton residents are finding out that the answer includes a special taxing district and a little help from the neighbors, as told in this story in today's Sun-Sentinel.

Right is Right. Remember, failing to yield the right of way in Bradenton will get you at least a $34 citation, even if you're 8 and riding your bike. Read about it here in the Bradenton Herald.

More Moore. Alabama's suspended chief justice Roy Moore was in Ft. Lauderdale this weekend, as reported in this story in the Tampa Tribune, and, among other things, he foretold that if his opponents succeed in blocking his efforts to display a Ten Commandments monument in his home state, they will go after acknowledgments of God in state constitutions.

Sunday, October 26, 2003
Schiavo News: Michael Breaks His Silence. Terri Schiavo's husband, who has been silent in the media through much of this saga, will appear on Larry King Live at 9 p.m. Monday night.

Schiavo News. I'm a lawyer, not a doctor, so while I can help debunk misperceptions about how the judicial system has handled the Terri Schiavo case, I'm as clueless as the next person about the medical aspects of the case. That's why I find this article from today's St. Pete Times so interesting -- it explains that, contrary to popular perception, medical science uniformly believes that removing a feeding tube from a patient does not cause a painful death.

Schiavo News. The AP has this report on Judge Greer, who for years has presided over the Schiavo case at the trial level.

Saturday, October 25, 2003
Schiavo News. The St. Pete Times has this update on the Schiavo case. The story discusses both the ACLU's entry into the case to challenge the constitutionality of the law passed earlier this week and renewed claims from the Schindler family and their doctors that Terri is responsive and alert.

In the interest of full disclosure regarding the procedural history of this case, I will point out that the doctors quoted in the story are the same doctors who testified for the Schindlers before Judge Greer at the last trial in this case. Their testimony was contrary to that of the doctors hired by Michael Schiavo and the independent doctor hired by the trial court. You can read Judge Greer's order rejecting the Schindlers' doctors' testimony here, and you can read the appellate court decision affirming Judge Greer's order here.

Also, the Sun-Sentinel has this story about how Governor Bush has gained support from the "religious right" as a result of his intervention in the Schiavo case.

Illegal Backing. A woman who backed her sport utility vehicle over a sunbather at a Volusia County beach has been ticketed with illegal backing, according to this story from the AP. The civil offense carries a $72 fine. The injured woman is recovering in a local hospital.

Class Action Certified. The Tallahassee Democrat has this story on how a Palm Beach County court has certified a class action of apartment residents who were "illegally" charged termination fees by the nation's largest landlord. No word in the story on what supposedly made the termination fees unlawful.

Murder Mistrial. A woman shows a guy revealing pictures of her with other men, and as a result he strangles her to death. The guy admits as much in court, where he's on trial for second degree murder, and the judge declares a mistrial because the jury, asked whether he is guilty of second degree murder, manslaughter, or nothing, could not reach a verdict in six hours. Only six hours and a mistrial? I don't get it, but you can read about it in this story from the Sun-Sentinel.

Gay Student Expulsion. The Palm Beach Post has two articles today relating to the student at Jupiter Christian School who was expelled after he acknowledged he was gay. The first is a lengthy look at this particular case, and the second is a broader look at the issue of gay students in religious schools.

Friday, October 24, 2003
Friday Florida Trivia Answer. The answer is 70 if you meet the requirements of § 626.9701, which the Legislature enacted in 1976 and provides:

Noncriminal violations solely for excessive speed less than 70 miles per hour on highways which are outside business and residential districts and which have at least four lanes divided by a median strip at least 20 feet wide and on highways which comprise a part of the national system of interstate and defense highways shall not be considered by insurance companies in rate increases for individuals or surcharges for insurance premiums.
Of course, in 1976, we didn't have 70 mile per hour speed limits on any of our roads, so this statute was probably a bit more forgiving then than it is today.

Finally, to repeat my general disclaimer for this site, commentary, including trivia questions and answers, is not legal advice. Consult a lawyer in your jurisdiction if you require legal advice.

Friday Florida Trivia! If you get a ticket for speeding while driving on a four-lane divided highway with a 20-foot median, or on an interstate highway, how fast do you have to have been going for your insurance company to count the violation in calculating your rates?

I'll post the answer -- or at least the relevant law that speaks to this issue -- today after 5 pm.

Schiavo News. Today's St. Pete Times has this update on the the coming constitutional challenge to the new law that allowed Governor Bush to stay the removal of Terri's feeding tube. The story includes some financial information that has not recently been published, such as that only $50,000 remains of Terri's trust fund and that rumors that Michael Schiavo will collect an insurance award when Terri dies are false -- there is no policy.

The Sun-Sentinel has this story about how the ACLU intends to aid Michael Schiavo in his constitutional challenge to the new law and how other groups, such as the AARP, are considering doing so as well.

The Palm Beach Post has this story about the resignation of Terri's treating physician.

The Tampa Tribune has this story on how publicity from the Terri Schiavo case has prompted a surge of interest in setting up living wills. (I don't give out personal legal advice on Abstract Appeal, but I will say that, as a general matter of prudence, we all should have clearly expressed living wills. I'll have more on this subject in a lengthy piece to be posted over the weekend.)

Finally, for now, the Tallahassee Democrat has this story about how calls to "save Terri" have been pouring into Tallahassee, including the office of Craig Waters, the Florida Supreme Court's spokesperson.

Jury Verdicts. The head official at a college track and field meet has been awarded $811,000 for damages resulting from being struck in the head by a javelin. Read about the Palm Beach County verdict in this story in today's Sun-Sentinel.

Just Not In His Name. A Pompano Beach resident, offended at city commission meetings beginning with an invocation in Jesus's name, has prompted city officials to adopt a policy of not permitting mention of specific religions or deities during meeting invocations. Read about it in this story in today's Sun-Sentinel. The story also mentions that, on Wednesday, a Calvary Chapel pastor filed a federal suit against Broward county for prohibiting the display of a large cross with the words "Jesus Is The Reason for The Season" at the annual Holiday Festival of Lights at Tradewinds Park. You can read more about that federal lawsuit in this story in today's Tallahassee Democrat.

Thursday, October 23, 2003
Schiavo News. Michael Schiavo has considered, and rejected, giving up his efforts to allow his wife to die, according to this story tonight from the AP. He's going to pursue a declaration that the law enacted earlier this week to permit Governor Bush to stay the withdrawal of Terri's feeding tube is unconstitutional.

Florida Supreme Court. Just one case this week from the Florida Supreme Court -- this one, in which the court affirmed Duane Owen's death sentence for the 1984 murder of 14-year old Karen Slattery. Karen was babysitting when she was attacked and killed. I don't normally mention death appeals that are affirmed, but I mention this one because Karen was from Delray Beach, literally just up the street from where I grew up in Boca Raton. She and I were the same age, and I remember the craziness that haunted the area for months after her death.

Schiavo News. There has been a discernible change in the reporting concerning the new law passed this week to allow the Governor to intervene in the Terri Schiavo case. I noticed yesterday in the local television and radio coverage that the media have begun qualifying their comments on the law by discussing its potential unconstitutionality as a bona fide possibility, rather than simply a claim by Michael Schiavo's attorney. This morning's papers likewise include numerous quotes from "legal experts" who declare that the law is simply unconstitutional.

Check out the local coverage in today's St. Pete Times, which has articles here and here; Tampa Tribune, which has articles here and here; and Orlando Sentinel.

Personally, I find the constitutional issues (discussed briefly in this post yesterday) to be fascinating, not only as legal issues but as means to educate the general public about some very important constitutional principles.

To provide a brief update on events, Michael has announced that he intends to sue any doctor providing assistance to his wife, as explained in the second Tampa Trib story linked above. If you recall the new law's language, though, it provides immunity to doctors who act pursuant to a stay issued by the Governor. Presumably, Michael's position is based on his view the law is unconstitutional for the reasons mentioned earlier, but there may be an additional constitutional arrow in his quiver: he may assert that the immunity portion of the new law also violates Terri's constitutional right of access to courts, since in the absence of the new law Terri would have a common law cause of action for battery against doctors treating her against her will (recall that the courts have determined that Terri would not wish to live under these circumstances), and Florida's courts are traditionally reluctant to permit the Legislature to eliminate claims that could be brought under the common law. This explains why, as the Trib story mentions, Terri's treating physician resigned from her care Tuesday evening -- likely in an effort to avoid a battery suit.

Finally, I'll note that the first St. Pete Times article linked above explains something I had not appreciated about Tuesday's events: Late Tuesday, Michael Schiavo filed an action separate from the guardianship proceedings to declare the new law unconstitutional. That case has been assigned to Judge Baird. It's not clear at this point whether the two proceedings will continue as separate cases, but it seems unlikely.

Sexual Predator Law. We have a full-fledged conflict in the district courts over whether the Florida Sexual Predator Act violates the due process rights of persons previously convicted of one or more various sexual offenses. You may recall that, last term, the United States Supreme Court upheld Connecticut's version of Megan's Law against a due process challenge in Connecticut Department of Public Safety v. Doe and Alaska's version against an ex post facto challenge in Smith v. Doe. Yesterday, however, the Third District held in this case that Florida's law is punitive where the Connecticut and Alaska laws were not, and thus the law's automatic application based on prior convictions violates due process. As the court notes, this result is in conflict with the Second District's decision earlier this year in this case. Also, the Third District could not know this, but its decision also conflicts with this decision, which the Fourth District released yesterday.

By the way, you can access Florida's sexual predator database here.

First District: Religious Impeachment. In this case, a defendant charged with various sexual offenses attempted to attack the victim's credibility by cross-examining her on her prior statements that when she told her mother what happened, she saw Jesus standing in the room, demons were cast out of her, and she rolled on the floor and “spit out the evil that Uncle Dan put in me.” The First District held that such evidence is inadmissible under § 90.611 of the Evidence Code, which prohibits evidence that discloses a witness's practice of "unconventional or unusual religion."

Fourth District: Due Process. Do you have a substantive due process interest in your government job? What is substantive due process anyway? Answers to both these questions are found in this scholarly decision issued yesterday by the Fourth District. (By the way, the answer to the first question is no, as the police officer plaintiffs in the case now know.)

Fourth District: Splitting Causes of Action. If you enjoy legal theory, and, in particular, the basic concepts of res judicata and the rule against splitting causes of action, or if you're just intersted in how the law defines "claims" or "causes of action," then this decision issued yesterday by the Fourth District is a must-read. The case includes a dissent by Judge Gunther that highlights how there are at least two different approaches in this area -- and how she believes Florida law requires an approach different from that of the majority.

1/14/05 Update: The decision referenced here is no longer good law. Look here.

Questions, questions. It's been a while -- September 18, by my count -- since a district court of appeal has certified a question to the Florida Supreme Court as a question of great public importance. Yesterday, though, the Fourth District certified this question:

A similar question was previously certified by the Fourth District, in a case that the Supreme Court has accepted for review, but I include this question here because the prior case predated the start of this blog.

First District: Warrantless Search of Motel Room. Ever wondered about when police can search a home (or in this case a motel room) without a warrant? This decision yesterday from the First District does a good job of working through the analysis in the course of explaining why evidence seized from a motel room bust must be suppressed because the warrantless search was unconstitutional.

First District: Workers' Comp Fraud. This case is just a small reminder from the First District that giving any misleading information, whether oral or written, in the course of a workers' compensation application can be grounds to deny benefits.

Decision Day. Wednesdays are the busiest day of the week for Florida's intermediate appellate courts when it comes to releasing opinions, and yesterday was no exception, as four of the five district courts of appeal issued decisions. Several of them are noteworthy, and I'll give some details and links to them in the posts that follow.

Wednesday, October 22, 2003
More Schiavo News. Keep in mind, I'm not taking sides -- just working at shedding some light on the law and the legal process here -- but I have to point out the oddity of this story tonight from the Associated Press. The story, titled "Doctors Say Suffering Unlikely for Brain-Damaged Woman," is about how physicians reject Michael Schiavo's attorney's claim that reintroducing Terri's feeding tube would bring her more suffering before she dies. The basis for their refutation? "Since the woman, Terri Schiavo, is in a persistent vegetative state, she will not feel discomfort. . . . 'She is not aware of her environment or what is happening.'" Guess how many such stories were run with respect to claims about Terri's suffering when the tube was removed?

Public Suicide Ban. Following a similar move by the City of St. Petersburg, Pinellas County today passed an ordinance banning public suicide and the promotion of public suicide. Of course, this is in response to the publicity stunt earlier this month by that band I'm not going to name. Read about it in this story from the AP.

Gay Student Suit. A student expelled by Jupiter Christian School because he is gay has filed suit against the school, according to this story from the Sun-Sentinel. Interestingly, the suit is for breach of contract.

Schiavo News. The AP has this update, which not only notes that Michael is not allowing Terri's family to see her in the hospital where she is being treated but includes some interesting quotes from well known constitutional scholar Lawrence Tribe.

Schiavo News. Let's try to wrap up what happened yesterday. The House and Senate passed a law that gives the Governor the ability to stay the removal of a person's feeding tube in cases where the court system has found that person to be in a persistent vegetative state, the person has no written advance directive, and the person has had nutrition and hydration withheld. The power to issue such stays ends 15 days from yesterday, but the effect of a stay is perpetual unless the Governor finds revoking the stay to be warranted by a change in circumstances. Once a stay is issued, the chief judge of the local circuit court is to appoint a guardian ad litem to advise the Governor.

Armed with this new law, which you can read here, the Governor last night ordered Terri's feeding tube reinserted. She was taken to a Clearwater hospital where that process was begun.

Meanwhile, Michael Schiavo attempted to have the local circuit court enjoin the new law's effect -- which would leave the feeding tube removed -- based on arguments that the new law is unconstitutional. Not surprisingly, the circuit court rejected that effort and said that the law would be effective until the court can have a full opportunity to review the constitutional arguments.

So where are we headed? Assuming Michael can and wishes to continue his battle with the Schindlers, the constitutionality of the new law will be litigated, perhaps all the way to the Florida Supreme Court. I note that the constitutional dimensions of these arguments will give the Florida Supreme Court an opportunity to hear the case, whereas that court had no legal authority to review the earlier appellate decisions in the case. More on this later.

What are the constitutional challenges? At this point, it seems there will be two: First, that the law violates Terri's constitutional right to privacy, since the courts have determined that she would choose not to continue with life-prolonging measures under these circumstances. Second, that the law violates the constitutional principle of separation of powers (which in essence leaves each of the three branches of government to its own sphere of power) by appointing the Governor to overrule the courts on a fact issue with fundamental right implications. I am not going to predict whether these arguments will succeed or fail, but as an appellate lawyer I will say that they will make for very interesting legal discussions.

What's the bottom line? Terri's feeding tube will likely be left in place until the courts finish sorting out issues regarding the new law. That could easily be a year or two.

What's the reaction to what just happened? The families' reactions are the obvious ones. Less foreseeable have been the comments of newspaper editorial staffs, law professors, and even Florida's legislators themselves. Some of these folks are making cries of political opportunism -- that the Legislature acted as it did to court the Republican party's conservative base and to further the upcoming U.S. Senate campaign of Florida's Speaker of the House, Johnnie Byrd, who spearheaded the legislative move.

You can read the local papers' roundups of the situation at these links to the St. Pete Times, the Tampa Tribune, the Palm Beach Post, and the Orlando Sentinel, with the Sentinel having the heaviest coverage of legislators' views. You can read heavy criticism of the legislative action from the editorial staffs of the St. Pete Times and the Orlando Sentinel (registration required), and from St. Pete Times columnist Howard Troxler. You can also read the somewhat guarded support for the move given by the editorial staff at the Tampa Tribune.

Tuesday, October 21, 2003
Schiavo News. Local TV in the Tampa Bay area reports that Terri has been taken to a hospital, where she will receive fluids intravenously and, later, a feeding tube once again. That ends two days of heavy political involvement in the case. The next round, if that's an appropriate term in such a sensitive situation, will take place in the courts.

Thinking abstractly here -- in keeping with this site's name -- I can imagine at least two potential series of issues that may be litigated in the courts: whether the stay that Governor Bush has ordered and the underlying new law are constitutional and, if so, whether and how the Governor's authority to revoke the stay (something he can do based on a "change in circumstances") should be exercised and reviewed. Stay tuned.

Schiavo News. The House has now passed the amended bill, which appears to be available here. From my quick read, the only apparent difference from the earlier version is that the bill now provides that the chief judge of the circuit court is to appoint a guardian ad litem to advise the Governor once a stay is issued.

In the Sixth Circuit, where Terri's case is pending, the chief judge is Judge David A. Demers.

Schiavo News. Don't blink, or you'll miss things. This recent report from the AP confirms that the Senate has passed an amended version of the bill, which is now on its way back to the House. The House will likely pass the amended bill, sending it on to Governor Bush for his signature tonight. But wait. The AP story also indicates that Michael Schiavo has filed a motion with the trial court overseeing this case -- most likely a request that any stay imposed by the Governor be ineffective. Finally, the story indicates that the trial judge will hold a hearing today on the matter.

More Schiavo News. Judge Merryday has denied the request for injunctive relief filed by the Advocacy Center for Persons with Disabilities. The group sought to enjoin the removal of Terri's feeding tube on grounds that the removal constituted abuse and neglect. The federal court found the group's allegations legally insufficient and further found that a federal district court has no jurisdiction over this matter, which has already been litigated in Florida's state courts. You can read Judge Merryday's order here.

A footnote in Judge Merryday's order is worth a note here. He stated in footnote 2:

At the October 20, 2003, hearing, The Center argued that withholding nutrition and hydration from the ward may constitute "abuse and neglect." However, The Center admitted that had the ward left explicit written directions under Chapter 765 to terminate her nutrition and hydration, The Center would not have filed this action. In other words, this action represents The Center's disagreement with the fact finding in Florida's courts that the ward actually consented to the present course.
That pretty much sums up the controversy in this case.

Schiavo News. Whoa! I commented this morning that news reports and the bill title made it seem that the stay authorized by the bill under consideration would not be indefinite. Not so. Well, maybe. The House of Representatives web site now has up the text of the bill the House passed last night -- you can read it yourself here. You'll see that the bill would create only a 15-day window during which the Governor could issue a stay in cases such as Terri's; once the 15-day window expires, the Governor could no longer issue such stays, but any stay already issued would remain in effect except upon a finding that a change in the person's condition warrants revocation of the stay.

Bear in mind that amendments to the bill have been proposed and possibly accepted by one or both chambers, and the text of those proposals is not yet on the Internet. So it's not clear how the bill may now read, and of course everything is subject to change.

This bill is fascinating, though. It's probably fair to say that some ground-breaking constitutional battles and procedural issues lie just past the horizon.

Schiavo News. The AP reports in this story that a Senate committee has approved the bill passed yesterday by the House. But a quick look at the Senate's website (here) indicates that the committee passed the bill as amended, which should mean that even if the full Senate approves the amended bill tonight, then the House will have to pass the amended version as well before the bill can be sent to the Governor for approval.

For more details, scroll down just a bit to this Schiavo News post from earlier this morning.

Also, don't forget that Abstract Appeal's Terri Schiavo Information Page has a good deal of information about the legal proceedings thus far.

Eleventh Circuit. The Eleventh Circuit released four noteworthy opinions yesterday. Nothing extraordinary, though, so I'll just briefly touch on them. In this case, the court upheld a conviction for communicating threats through interstate commerce based on phone calls the defendant made to his Jewish former attorney in which the defendant predicted great violence to the lawyer, Jews, and the people of Florida. In this case, the court determined that the Tax Injunction Act deprived the district court of jurisdiction over St. Simons Island residents' claims concerning their property taxes. In this lengthy decision, the court affirmed a summary judgment in favor of an employer on an employee's harassment claim based on the affirmative defense established by the U.S. Supreme Court in Faragher v. City of Boca Raton. Finally, in this case, the court affirmed a decision not to notify potential opt-in plaintiffs in a Fair Labor Standards Act case on the basis that settlement of the plaintiffs' claims rendered the matter moot.

Schiavo News. I called it a "fascinating development" yesterday for a reason. It looks like Terri's feeding tube will be reinserted soon -- probably today -- based on events going on in the Capitol. Yesterday evening, the Florida House of Representatives passed a bill that reportedly will allow the Governor to intervene in cases, like Terri's, where no written directive exists regarding the cessation of hydration and nutrition and the family cannot agree on how to proceed. At the moment, the bill's text is not available online, but I'll be watching for it. For now, the Legislature has what's probably the bill's title online, and it states that the bill:

authorizes the Governor to issue a one-time stay to prevent the withholding of nutrition and hydration from a patient under certain circumstances; provides for expiration of the stay; authorizes the Governor to lift the stay under certain circumstances; provides that a person is not civilly liable and is not subject to regulatory or disciplinary sanctions for taking action in compliance with any such stay.
According to the Florida Senate's web site, a Senate committee will be taking up the bill at 8 a.m. If the Senate passes the bill today, all indications are the Governor will immediately sign it and invoke the stay it permits.

Bottom line: Assuming a favorable Senate vote, Terri's feeding tube will likely be reinserted later today based on a stay issued by the Governor. That will not, however, be the end of this saga. The stay is apparently not indefinite, so even under the new law's terms (which I've not yet seen), there are issues ahead. Also, based on comments from Michael's attorney in today's news reports, Michael is likely to challenge the constitutionality of the new law on grounds it violates Terri's right to privacy. (Yes, I said that right.) There may be other constitutional challenges as well. So, in all likelihood, the court battle is about to resume.

You can read about the latest developments everywhere, such as today's St. Pete Times, Tampa Tribune, and Orlando Sentinel.

It's Good To Be A Rainmaker. Governor Bush is so happy with the long-term prospects of luring biotech giant Scripps Research Institute to Florida that he is asking the Legislature to create a $190 million pool of money that he could use to help bring similar economic rainmakers to this state. Read about it in this story from the AP.

Monday, October 20, 2003
Schiavo News… on three fronts. First, the "watchdog group" mentioned in a post from this morning is the Advocacy Center for Persons with Disabilities. That group has brought a claim in federal court alleging that removal of Terri's feeding tube constitutes abuse. I'm not sure how the group asserts that the federal court has jurisdiction, but the group is pushing forward and has requested a 10-day injunction on the tube's removal to permit an investigation. Judge Merryday has been assigned the case and heard argument on that request. He is expected to issue a ruling today.

Second, the new law being advanced in Tallahassee by Speaker Johnnie Byrd would apparently prohibit removal of hydration and nutrition from persons who lack a written directive on life-prolonging procedures where the family cannot agree on a course.

Third, Governor Bush has apparently been advised that all legal remedies that he might pursue have been exhausted.

All this from this afternoon update from the AP.

Schiavo News. The Terri Schindler-Schiavo Foundation's site, Terri's Fight!, has posted a notice saying that Florida's Speaker of the House, Johnnie Byrd, will introduce "Terri's Bill" today during the Legislature's special session regarding the Scripps Research Institute facility planned for Florida. Apparently, the bill would put an immediate moratorium on dehydration and starvation deaths in this state. Note that, where, as here, the Governor has called a special session, then under Article I, § 3(c)(1) of the Florida Constitution, the Legislature cannot take up a matter other than the subject of the special session except by a 2/3 vote of each house.

This is a fascinating development.

Schiavo News. I made some significant updates to the Terri Schiavo Information Page over the weekend. Hopefully the page is now fairly informative, at least with respect to the legal procedures that have been followed thus far. You can access the info page here.

Also, the morning television news in the Tampa Bay area is reporting that a watchdog group has filed a complaint regarding Terri Schiavo in federal court in Tampa. The group apparently claims that depriving Terri of a feeding tube constitutes abuse and that her tube's removal should be enjoined. The news also reports that a hearing -- perhaps a preliminary injunction hearing -- is scheduled for noon today.

Special Legislative Session. Today, the Legislature begins a five-day special session to work out terms for bringing the Scripps Research Institute to Florida. Read about the special session in today's St. Pete Times, the Miami Herald, and the Tallahassee Democrat. You can also read the Scripps press release on the company's planned new research facility here.

Sunday, October 19, 2003
Eleventh Circuit: Wiretapping. In 1974, the Fifth Circuit held that the wiretapping prohibition found in 18 U.S.C. § 2511 contains an implied exception for wiretapping by spouses. In this en banc decision released this week, the Eleventh Circuit, which in 1981 adopted the Fifth Circuit's case law as precedent, overruled its predecessor circuit's opinion and held that no interspousal immunity exists under the statute. More interestingly, the en banc court held that its new interpretation of this statute is retroactive and applies to prior interspousal wiretapping.

Three judges dissented on the latter point, asserting that it was inequitable to declare past conduct unlawful when, at the time it was committed, a then-binding circuit court decision declared that very conduct exempt under the statute at issue. A fourth judge dissented on the ground that exposing the defendant to punitive damages for conduct that was lawful when it was committed violated the guarantees of due process.

Most interesting about the case is the caustic concurrence by Judge Carnes, who attacked the dissenters with vigor. I quote from the concurrence at some length:

Because the foundation of the dissenting position is laid upon reliance and fairness interests, it must stand or fall with the presumption that everyone, including Mr. Glazner, knows the law. That is a great and hoary presumption underlying much of our law. The problem is not with the presumption but with the dissenters' unwillingness to embrace it fully, instead of giving it only a little squeeze. They would have us presume that at the time Mr. Glazner decided to electronically invade his wife's privacy, he knew the law insofar as it includes our Simpson decision but he did not know the more fundamental law that any of our decisions, including Simpson, are subject to being overruled at any time by the Supreme Court or by this Court sitting en banc.

The dissenters would have us presume that the mythical lawyer Mr. Glazner did not actually visit for advice, but could have, would have advised him to wiretap without worry. That advice apparently would have been based on the belief that although Simpson was a badly reasoned decision rejected by virtually every other circuit to consider it, nonetheless Simpson was unshakable law in this circuit that could never be changed; and even if it were changed some day, the new rule could never be applied retroactively to Mr. Glazner's intended misconduct even though the law strongly favors making new rules of decisional law retroactively applicable.

* * *

Whatever one may think of the quality of the Bar in Alabama, if we are going to indulge presumptions about everyone knowing the law and getting legal advice, we should presume accurate knowledge of the law and competent legal advice. If Mr. Glazner is presumed to have known the law -- and the dissenting position teeters atop that presumption -- he must be presumed to have known that the Simpson decision was not immutable, and that not only could it be changed but also that the change could be applied retroactively. And he must be presumed to have known that the conduct he was engaging in is a crime in Alabama; no change in the law is needed for that. With accurate and complete understanding of the law presumed, as it must be, any reliance interest Mr. Glazner may claim is too unreasonable to figure into the decisional calculus of this case. We should not pause to weep for one who thought that he was simply committing a crime and potentially subjecting himself to civil liability in state court, only to learn later that his conduct had also given rise to civil liability in federal court. To me, that result does not seem "terribly unfair," as the Chief Judge characterizes it in his dissenting opinion.

Footnote 13 of that opinion illustrates the strange nature of the half-way presumption world into which the dissenters would take us. In that footnote we are told that some people may have chosen to live in the Eleventh Circuit because the Simpson decision allowed them to covertly wiretap their spouses…

I suppose, then, a conversation between a couple sitting around their breakfast table in, oh say, Colorado (the Tenth Circuit having rejected Simpson years ago) might have gone something like this:

Jim: Honey, I've been thinking, we ought to move to Alabama.

Liz: But Sweetheart, I thought you liked living in Colorado.

Jim: I do, Sugar, but there's a problem.

Liz: What's troubling you, Sweetie?

Jim: Well, Punkin', Colorado is in the Tenth Circuit, and its federal appeals court has held that if I wiretap your private conversations without your knowledge and consent, I may have to pay you damages if you find out and sue me in federal court. But if we move to Alabama, which is in the Eleventh Circuit, its Simpson decision will allow me to invade your privacy electronically without having to worry about your having a civil claim against me in federal court.

Liz: But Honeybun, doesn't Alabama's criminal eavesdropping statute make it a crime to covertly record conversations without the consent of at least one of the parties to the conversation?

Jim: It does, Snookums, but all I'm worried about is the potential civil cause of action in federal court, not having to serve time in the state slammer.

Liz: You'll look so good in jailhouse stripes, my Love. When do we move?
Only in a world where conversations like that take place does concern about reliance on the Simpson decision by James Glazner and other wiretapping spouses make sense.

Eleventh Circuit: Due Process. The Eleventh Circuit published only two opinions this week. First up: this decision, in which the court rejected a challenge that Atlanta's liquor license revocation process violates a licensee's due process rights.

Supreme Court. In this case, the Florida Supreme Court held that a minor's right to damages under § 768.21(3) is not limited to the period of time before the minor reaches the age of majority; rather, minors entitled to damages under the statute can recover for damages they will experience during their entire lives.

Fourth District: Religious Guarantees In Condos? In this case, a group of condominium residents challenged their condominum association's rule prohibiting religious services in the condo's common areas. They based their challenge on condominium residents' right to peaceably assemble, a right that is extended to them by § 718.123. The Fourth District rejected the argument, relying on an 1875 decision by the United States Supreme Court to define the assembly right as the right to meet and discuss public affairs.

First District: Dismissal With Prejudice As A Sanction. Can a trial court dismiss a plaintiff's complaint with prejudice based on the conduct of the plaintiff's attorneys, without any malfeasance by the plaintiff itself? In this case, the First District said yes and affirmed such a dismissal while certifying conflict with a line of contrary cases from the Third District. Interestingly, the trial judge who granted the dismissal with prejudice in the decision under review was Kenneth Bell, who we now know better as Justice Kenneth Bell.

First District: Settlement Proposals. If you're following the ever-developing case law regarding what makes a proposal for settlement invalid, be sure to check out this decision from the First District. The court held that a proposal to release all claims against the defendant and a list of affiliated persons was not sufficiently particular for the plaintiff to evaluate the proposal's reasonableness.

Fifth District: Equitable Estoppel. A plaintiff's ability to use the doctrine of equitable estoppel to extend a limitations period is hardly unlimited, as shown by this decision from the Fifth District.

Fourth District: Preserving Error. This case -- in which the appellant's trial counsel simply answered "That's fine" when the trial court announced it would grant the opposition's motion without argument -- reminds us all that the failure to preserve an objection to a trial court's decision results in a waiver of any error in that decision.

Fifth District: Forum Selction Agreements. You're just starting your job and your employer requires you to sign a non-compete agreement that requires litigation over the agreement to be conducted in the employer's home state. Any chance you'll succeed with an argument that the agreement is unconscionable based on your inferior bargaining position? Not much. Check out the Fifth District's decision in this case.

Workers' Compensation for Illegal Aliens. Many people may not realize that, under Florida law, illegal aliens are permitted to recover workers' compensation benefits. Read about it in this decision from the First District.

First District: Arbitration Agreements. In this case, the First District affirmed an ordering compelling arbitration after determining that the potential for splitting arbitration costs did not invalidate an employer/employee arbitration agreement. The decision could conflict with a 2001 Second District decision, though the First DCA panel did not appear to think so.

First District: Administrative Rules. This decision from the First District addresses the point where administrative procedures should be implemented by rule.

A Complete Defense. By the way, I'd like to compliment the team that tried the case for which I provided appellate support over the past two weeks. Kirsten Ullman and Ron Kurpiers, of Ullman & Kurpiers, LLC, led a talented team of attorneys and staff who did a marvelous job, resulting in a complete defense verdict. I'd like to think the finely tuned jury instructions and verdict form (those legal issues…) had something to do with the result, but, nah, it was all the trial team. They're great.

An Abstract Return. Whew. It was a tough week for me. Blogging proved to be difficult, and at times simply not possible. Now I'm back at it and in full swing. First, I'm going to blog the significant cases from this past week. We have a few good ones, including an extremely interesting decision from our local federal appellate folks. There's more news on the Schiavo case, too. Finally, and probably by mid-afternoon, I'll finish updating the Terri Shiavo page.

Thursday, October 16, 2003
Announcing The Terri Schiavo Information Page. As mentioned in a post yesterday, I have begun an information page intended to provide information about the Terri Schiavo case, with an emphasis on Florida law and the legal procedures that have gotten things where they are today. The format at this point is Question & Answer. I will be adding to the page over the next day or two -- I've only had a brief amount of time to devote to this recently because of my workload, including an ongoing trial for which I'm providing appellate support all week.

Hopefully the Information Page will help debunk some of the severe misstatements I've heard about the case, many of which have been aired in very public formats.

You'll find The Terry Schiavo Information Page HERE.

Schiavo News. At 2 p.m. yesterday, health care providers at the Pinellas Park Hospice where Terri is staying disconnected her feeding tube. Terri's parents, backed by a strong number of supporters, are still hoping something or someone will intervene to change the fate that Terri now imminently faces. Reports are that Governor Bush has asked his legal staff to consider every possible legal avenue to aid the Schindlers. You can read about it all in today's St. Pete Times, Tampa Tribune, Tallahassee Democrat, and Orlando Sentinel.

Wednesday, October 15, 2003
Schiavo Questions. In the last few weeks, I've had many conversations with people who were disturbed by the Terri Schiavo situation but who misunderstood -- or had little to no idea about -- the facts or history of the case. Inevitably, these folks express disappointment to one degree or another with the legal process and even the trial judge in particular. I've also noticed that a good number of people have stumbled onto this web log while looking for information on the Terri Schiavo case.

I'd like to try to clarify things and offer some resources to those looking for more (or just better) information on this saga. I have no stake in the case -- I'm just interested in helping people help themselves understand the situation and explaining why I believe the legal system is sound.

I'll be spending all day in that Tampa trial where I've been providing appellate support for the last two weeks, but in the off-moments and tonight I'm going to try to put together a Q&A page that offers short, understandable explanations of what's going on and what the law is. Hopefully it will be of use to some folks. Feel free to email me today with any questions you think ought to be covered.

Schiavo News. The big legal news of the moment in Florida concerns the Terri Schiavo case. The feeding tube for this brain damaged woman, who has been in a persistent vegetative state for 13 1/2 years, is scheduled to be removed at 2 p.m. today. Yesterday the Second District rejected Terri's parents' latest efforts to have the removal stopped, and reports suggest that the parents may feel they are now out of judicial options. That certainly appears to be the case. Also, Terri's parents yesterday released a segment of a videotape they made of Terri years ago in violation of a court order; as a result, and apparently out of concern the parents will attempt to videotape her after the tube is removed, Terri's husband (who is her legal guardian) has limited their access to Terri to times when he or his representative is present.

You can read the latest stories on this saga in the St. Pete Times, the Tampa Tribune, and the Orlando Sentinel.

Jury Verdict. A Ft. Lauderdale jury has found a popular, five-star hotel negligent in using unsanitary tools to perform a manicure, awarding the plaintiff $850,000. Read about it here in today's Palm Beach Post.

Cruise Ship Suit Sent Abroad. A federal court in South Florida yesterday ruled that Filipino seamen injured in a boiler incident on the S.S. Norway may not bring their claims in the United States but instead must pursue arbitration in the Philippines. Read about it here in today's Miami Herald.

NY, FL Dioceses Dismissed. The Sun-Sentinel also has this story on how a Palm Beach court has dismissed sexual abuse claims against Florida and New York Catholic dioceses based on Florida's four-year statute of limitations.

Death Penalty After Stealing A Purse? Could be, since the purse-snatcher also dragged the 86-year-old Lauderdale Lakes victim along as he sped away in a van, and she ultimately died from her injuries. The Sun-Sentinel reports on the story here.

Tuesday, October 14, 2003
Schiavo News. A round-the-clock vigil has begun at the hospice where Terri stays, according to this story today from the Tampa Tribune. The story also notes that Terri's parents have filed some sort of new request for relief from the Second District. It's not clear from the story exactly what was filed, but given the history of the case it seems unlikely that the court has jurisdiction to reconsider the matter, which has already been decided. You can read the appellate court's last published decision on the Schiavo case here.

School Vouchers. The AP has this story on how more Florida parents are opting to use school vouchers towards their children's tuition at religious private schools. The story mentions a circuit court ruling, now on appeal at the First District, that held one of the scholarship programs to be in violation of Florida's Constitution. One of these days -- probably a weekend -- I'm going to post a sizable piece on that controversy.

Private Juvenile Justice. The editorial staff at the Palm Beach Post doesn't like this example of it.

When's A Tree Not Just A Tree? Sun-Sentinel columnist Michael Mayo has these thoughts on the battle against citrus canker and the state's desire to destroy private landowners' uninfected trees.

Examining Title IX. Today's News-Journal has an entire series of interesting stories regarding the federal law that aims for gender equality in the school system.

Monday, October 13, 2003
Back To It. Today begins Week Two of the Tampa trial where I'm providing appellate support, so my updates this week will be terse, to say the least. I'll be on the lookout, though, for news on Terri Schiavo, since Wednesday is the scheduled day for the removal of her feeding tube, and there are likely a couple of legal twists ahead before then.

Saturday, October 11, 2003
Schiavo News. The big news on the Terri Schiavo saga is that Judge Lazzara has dismissed Terri's parents' federal suit due to a lack of federal trial court jurisdiction over the matter. As the judge ruled, Terri's parents have been attempting to use the federal district court to make an end-run around the state court decisions in the case, rather than appealing those decisions to the United States Supreme Court. You can read the latest updates in today's St. Pete Times and Tampa Tribune.

Eleventh Circuit. I haven't had time yet to check the nationally-focused blogs to see how much attention it's received, but I suspect that this order released yesterday by the Eleventh Circuit has been the subject of much discussion. The order deals with the case against Alabama's Ten Commandments monument and an attorney's fees award against that state's Chief Justice Moore. In short, Chief Justice Moore did not oppose the fee motion, but because the circuit court sensed that he may not be vigorously protecting the State of Alabama's fisc, the court referred the fee amount issue to the district court for findings.

The point of great interest to me, however, has nothing to do with the Ten Commandments or Chief Justice Moore. I'm interested in the circuit court's directive that the district court not award the victorious plaintiffs any fees in connection with amicus briefs supporting the plaintiffs' position. The Eleventh Circuit explained:

The district court ought not allow the plaintiffs any compensation for time their counsel spent in connection with amicus briefs supporting their position. The plaintiffs' fee application includes a request for reimbursement for work that lead counsel for the plaintiffs, Ayesha N. Khan, did in relation to a number of amicus briefs filed in support of plaintiffs' position. Her time records indicate that she spent that time enlisting various organizations to appear as amici; suggesting potential signatories for the briefs; working on, supervising, and reviewing the amicus briefs; and seeing that they were mailed on time.

It comes as no surprise to us that attorneys for parties solicit amicus briefs in support of their position, nor are we shocked that counsel for a party would have a hand in writing an amicus brief. In fact, we suspect that amicus briefs are often used as a means of evading the page limitations on a party's briefs. See Voices for Choices v. Illinois Bell Tel. Co., 339 F.3d 542 (7th Cir. 2003) (Posner, J., in chambers) ("[A]micus briefs, often solicited by parties, may be used to make an end run around court-imposed limitations on the length of parties' briefs."). Even where such efforts are successful, however, they should not be underwritten by the other party. An organization or group that files an amicus brief on the winning side is not entitled to attorney's fees and expenses as a prevailing party, because it is not a party. We will not allow that result to be changed by the simple expedient of having counsel for a party do some or all of the amicus work. To pay a party for such work would encourage the practice, which we are loathe to do. The district court should not award plaintiffs any attorney's fees or expenses for work done in connection with supporting amicus briefs. (A reasonable amount of time spent reading and responding to opposing amicus briefs is, of course, compensable.)
(footnote omitted).

In-Depth Discussions. Sometimes it's nice to sit down and read a good, substantive discussion on a subject. If you're interested in the procedures regarding claims against trusts, or in how insurers may or may not be bound by the actions of insurance salespersons, check out this decision from the Second District and this decision from the Fifth District, respectively.

First District. This week, the First District gave us a couple of reminders regarding basic trial and appellate practice. First, don't seek a writ of mandamus to compel a trial court to rule on a motion that you haven't noticed for hearing (as happened in this case), and, second, remember that a dismissal without prejudice is not a final order unless it's clear that the trial court intended any subsequent complaint to be filed in a subsequent proceeding (as discussed in this case).

Fourth District. As if the state's most prolific appellate court doesn't write often enough, the Fourth District indicated this week in this decision that it may stop affirming without an opinion criminal appeals in which an alleged error was not only clearly unpreserved but also not even erroneous. This is actually a good thing, as the district court explains, because it should save trial courts work when the defendants later bring post-conviction claims that their trial counsel was ineffective for failing to preserve those supposed errors.

Fourth District. Ever see an amended complaint that just doesn't square with the allegations in an earlier version? Ever wonder if the plaintiff can do that? The short is answer is, generally, yes, under the limited reach of the "departure of pleading" concept. Check out the discussion on this point in this decision from the Fourth District.

I'm back… Spending the week in trial for appellate support sure made blogging tough. I've been eager to get back to the blog with posts on this week's legal events. So here goes!

Friday, October 10, 2003
Polygraph Mention Results In Mistrial. And that's not even the interesting part of this story from today's Sun-Sentinel.

Finding Fines. Today's Palm Beach Post has this interesting story about a Y2K glitch that discombobulated St. Lucie County's traffic fines database since 1999 and now has county residents upset about getting late notices for tickets they say they paid years ago. As for those who haven't paid their fines in the last four years, the article quotes an attorney as saying there's no "statute of limitations" for the collection of traffic fines. Yup.

Supreme Court. Yesterday, the Florida Supreme Court issued this noteworthy decision concerning Florida's criminal restitution law. The case involved a DUI accident. The defendant had previously settled with, and received a release from, the person he injured. The court addressed whether such a settlement precludes a criminal court from ordering restitution to the victim as part of the defendant's sentence. Resolving a conflict in the DCAs, the court unanimously held that the settlement is a factor to be considered but is not dispositive, since the victim may not yet be fully compensated for his or her losses.

Representing someone who caused others bodily injury in the course of committing a crime? Keep this decision in mind.

Thursday, October 09, 2003
Abstract Pause. Posting is temporarily coming to halt today as, at the moment, I'm consumed with a Tampa trial that's underway and for which I'm providing appellate support. Today is particularly significant as it concerns jury instructions -- the sort of legal issues thing that appellate folks take a keen interest in. Meanwhile, the law rolls on. The DCAs issued a number of interesting decisions yesterday, and there will likely be more today, including decisions from Florida's supreme court. I'll get the good stuff blogged between late today and tomorrow. I hope you'll check back.

Wednesday, October 08, 2003
To Wig Or Not To Wig. Justice Pariente has done both. Chemotherapy treatment following a double mastectomy has caused her hair to fall out, and as the Palm Beach Post reports here, at first she wore a wig on the bench to hide her baldness; now she's dropped the wig. We all hope her treatment continues to go well.

Schiavo News. Governor Bush's office has filed a brief in the federal case between Terri Schiavo's parents and her husband, according to this story from the Tampa Tribune. The Governor's position appears to be that Terri should be given therapy to determine if she can eat or drink on her own and that her decision not to remain alive through artificial sustenance is not the same as a wish not to be fed at all.

Education Session Sought. Florida's educators would like more money appropriated for education, and they're calling on the Legislature to hold a special session to get it done. Read about it in this story from the AP.

Tuesday, October 07, 2003
SCOTUS Rejects Florida Judge's Appeal. An Escambia County judge who was disciplined by the Florida Supreme Court earlier this year for promoting a pro-law enforcement view in her judicial election materials attempted to appeal the matter to the United States Supreme Court, claiming a violation of her First Amendment right to free speech, but yesterday the nation's highest court denied her petition for certiorari. Read about Judge Kinsey's appeal in this story from the AP. You can also read the Florida Supreme Court's decision to discipline her here.

Democrats Want Re-Districting On Ballot. Well, yes, in the sense they want Florida voters to vote on whether to make redistricting the work of a commission, rather than the Legislature, as is currently required by the state constitution. Read about it here in today's Miami Herald.

Schiavo News. The latest is here, where the AP reports on Terri's husband's motion to dismiss his in-laws' federal case and on the hearing scheduled for October 10.

'Glades Case On The Move. Today's Tampa Tribune has this update on how the new federal judge assigned to the Everglades cleanup case intends to push it along.

Monday, October 06, 2003
Autopsy Photo Case. Last week, I mentioned (in this post) that the publisher of the Florida Alligator has now taken its quest for Dale Earnhardt's autopsy photos to the United States Supreme Court. The paper is asking the court to declare unconstitutional a Florida law (this one) that, in essence, permits access to autopsy photographs only to those who can show "good cause" for that access. Remember that, prior to the enactment of this law, all autopsy photographs in Florida were public records that anyone could obtain and then publish in a paper or on the Internet for any reason at all.

I've obtained a copy of the Alligator's certiorari petition, which asks the high court to take the case, and it seems the paper is basing its argument on the free speech protections of the First Amendment. The paper's position can be summarized fairly well in these two sentences taken from its petition:

The government cannot "leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints."

[Florida's new autopsy photographs law] explicitly allowed trial judges to do just that when it simultaneously exempted autopsy photographs from disclosure under the Public Records Law and allowed access to those who could show "good cause" for allowing access.
If I read that right, the Alligator is saying that those who have "good cause" to access autopsy photographs have a favored point of view, whereas those who lack good cause have a disfavored point of view, and that the state is not supposed to be in the business of awarding "subsidies," like access to autopsy photographs, based on viewpoint.

If you're wondering about the merits of this argument, you might be interested to know that, last year, Florida's Fifth District Court of Appeal rejected all of the paper's numerous constitutional challenges to the new autopsy photographs law, and the court chose not even to discuss this particular argument in its decision. You can read the 5th DCA's opinion here.

Virtual Classes, Ok -- But PE? Florida's again ahead of the curve on giving people options -- this time it's virtual classes for high school students, including physical education. The Orlando Sentinel has the story here.

More On The "Chuck E. Cheese Exception." Volusia County officials are continuing to take a hard look at whether casino-style arcades fit within an exception to the state's gambling laws, according to this story in today's News-Journal.

"Bad Ass Coffee Co." + Picture of Donkey = Nothing Officials Can Do. Jacksonville officials say there's nothing unlawful about the coffee shop's name or sign. Read about it here in today's Times-Union.

Suicide Show Video(?) If you're following this morbid publicity circus, check here for the band's latest efforts to keep the train in motion.

Sunday, October 05, 2003
New Judge On Everglades Cleanup Case. The Miami Herald has this story on the judge who has taken over the 'glades cleanup case. You might also see this earlier post, which discussed the prior judge's disqualification.

"Jesus Is The Reason For The Season." That's what a Broward County church wants its sign to read at this year's Holiday of Lights Festival, but county officials have said no. Read about it here in the Sun-Sentinel. The church is apparently filing suit as a result.

Schiavo News. Steve Otto, columnist for the Tampa Tribune has these thoughts on the Terri Schiavo saga.

Suicide Show: Did It or Didn't It? Well, if you read the reports, like this one from the AP and this one from the St. Pete Times, it seems the "show" went on, though there may have been no audience; hackers attacked the group's web site, and as a result it offered nothing; and the suicide may or may not have occurred, though St. Pete authorities say there are still no reports of one. If the suicide did occur, expect lots of arrests for assisting a suicide and violations of both a new St. Pete law (see this post) and a court-imposed injunction against promoting a suicide (see this post). If the suicide didn't occur, expect the circus to continue, sadly.

Saturday, October 04, 2003
Schiavo News. Florida's Attorney General, Charlie Crist, has decided that his office will not take part in the federal litigation between Terri Schiavo's parents and Terri Schiavo's husband, according to this story from the Tampa Tribune. However, Crist did take the position that Florida's Health Care Advance Directives laws are constitutional. In the recently-filed federal case, Terri's parents are claiming that the Florida laws that permit a court to order Terri's feeding tube removed violate her constitutional rights.

ACLU Calls Bartow Ten Commandments Monument A "Victory." See the AP's story here.

Fifth District: Med Mal Defenses. This decision yesterday from the Fifth District shows, once again, that the presuit procedures required with regard to a medical malpractice claim may be waived by a defendant's conduct during litigation.

Fifth District: Pleading. In this special concurrence from a decision yesterday, Judge Torpy of the Fifth District has some reminders about pleading the failure of a condition or occurrence in an answer.

Friday, October 03, 2003
Second District. In this decision today, the Second District held that homosexual couples may qualify as "family or household members" for purposes of obtaining domestic violence injunctions.

Suicide Show Enjoined. I just don't want to give this band any more publicity than it's already received, but I'll note that a Pinellas County circuit judge yesterday enjoined the band from presenting a suicide at a St. Pete concert that was supposed to take place this weekend. You can read about the injunction here.

Eleventh Circuit: FMLA. If you'd like to read a well written, almost conversive opinion regarding the Family and Medical Leave Act, check out this decision issued yesterday by the Eleventh Circuit. In the decision, the court concludes that the Department of Labor has permissibly defined "serious health condition" under the act as a period of incapacity of more than three calendar days.

Appellate practitioners may wish to note the court's brief discussion about how it will not allow litigants to present their cases differently on appeal than they were presented before the trial court.

Thursday, October 02, 2003
Caching Out. In this story, the AP reports today that a Republican state senator from Missouri has disciplined an aide because of a web site the aide maintained. According to the story, the web site's name -- N8354N -- offended Missouri Democrats because it was taken from the tail number of the plane that crashed carrying the late Missouri Governor Mel Carnahan.

The story goes on to give the site's address but notes that the content has been removed. Looking at the address, with its familiar domain ".blogspot.com", it's obvious that the site is a blog. That made me think: I bet I can still see what this blogger had to say. Less than thirty seconds later, I did.

I went to Google and did a search for the plane's tail number. Not unexpectedly, the blog showed up as the first hit. I didn't click on the blog link, though. I clicked on the link to the "cached" page most recently saved by Google. Again, knowing that Google owns Blog*spot and that Google spiders its blogs daily, it was no surprise to see that the most recent post on the cached page was from only two days ago. For all I know, that may have been the blogger's last post.

So, Google's snapshot of the Blogosphere gave me what this particular blog's author no longer wanted me to see: his blog's content as of no more than two days ago.

Is this a good thing? I think not. Putting aside the myriad number of legal issues that caching raises, as a blogger I prefer to have as much control as possible over what is represented to the public as my blog. Truth be told, I occasionally change posts after I publish them, and I wouldn't want a post that no longer exists on Abstract Appeal to remain in some seach engine's database of cached pages, readily available to the public as if it were my current work. In fact, the ability to republish my blog as I often as I like is one of the features of blogging that makes it so appealing to me. I can be a hopeless editor at times.

Fortunately, search engines will recognize a request not to cache a web page's contents. The request should be in the form of a tag included in the header portion of the page's html code and read like this: <meta name="robots" content="noarchive" />. I use it, and I'm glad to say that thus far my request appears to have been honored. If you run a Google search for Abstract Appeal, the resulting listing does not include a "cached" link.

I think it's quite reasonable for people not to want their blogs cached by search engines -- or by anything else, for that matter. Yet a quick search with Google shows that cached pages are available for many blogs. Perhaps after this experience with N8534N, more bloggers will opt not to have their blogs cached.

Life. Well, it's a bit past five and I'm staring out my office window, and I happen to notice some commotion in Tampa Bay. There's a small plane there, in the water. My office looks out on a few marinas and a private airport, and while I can't tell whether it was a take-off or a landing, someone didn't make whichever. There are lots of emergency rescue crews and helicopters in the area. Hopefully the pilot and any passengers are okay.

Supreme Court: Disapproves Jesus v. State. The Florida Supreme Court's decision, which holds that the age of the defendant is an element of the offense of capital sexual battery on a victim under 12, is here.

Supreme Court: Attorney's Fees. Today, in this case, the Supreme Court of Florida resolved a complete split in the DCAs when it ruled that multipliers may not be used to calculate attorney's fees awarded under § 768.79, Florida's offer of judgment statute. The decision approved like decisions of the Fifth District and the Third District and disapproved contrary decisions by the First, Second, and Fourth Districts.

Ya Gotcha. This story from the AP describes a Kentucky youth's lawsuit against Volusia County for a shark bite she suffered three years ago. According to the article, the suit claims the county was negligent for not warning her of a dangerous condition.

Zzzzz. Last night I posted a series of items on yesterday's good batch of decisions, but no one could see those posts -- or anything on the site. The Abstract Appeal server just took the night off. Now, all of a sudden, it's back. Hope it slept better than I did.

Wednesday, October 01, 2003
Second District. If you know that the Second District means what it says, what do you think would happen if, after the court affirmed a defendant's conviction and suggested that he pursue a claim for civil relief, a trial court denied the civil claim without explanation? A good guess would be that the trial court's decision gets reversed, as happened today in this case.

Fourth District: Forfeitures. The City of Hollywood has an ordinance that allows police to impound vehicles believed to be used to facilitate prostitution. Today, the Fourth District declared that ordinance invalid based on a state statute that preempts the field of criminal forfeitures or at least precludes contrary municipal regulations. You can read the decision here.

Fourth District: Arbitration Agreements. If you think you should avoid being sued in court because you have an arbitration agreement, or if you're not suing in court because of such an agreement, consider checking out this decision today from the Fourth District. The court held a nursing home's arbitration agreement to be unconscionable and therefore unenforceable. Notably, the trial court had upheld the agreement, so it was the appellate court that found both procedural and substantive unconscionability.

Free Reversal… That's right, you get a free reversal of your criminal conviction if, through no fault of yours, a trial transcript can't be assembled. It happened today in this case from the Second District.

Fourth District: Attorney's Fees. Just a reminder to those litigating insurance disputes: § 627.428(1) does not permit an award of attorney's fees when the policy at issue is neither issued for delivery nor delivered in Florida, as seen today in this decision by the Fourth District.

Fourth District: Conflict-free Disagreement? When can a district court render a decision contrary to a decision of the Florida Supreme Court without conflicting with the higher court? When times have changed, or so suggests this decision today from the Fourth District.

Third District: Rear-end Collision Rule. Attention drivers. In this decision today, the Third District reminds us that you are presumed negligent -- there's not even a jury issue -- when you hit a stopped car in front of you and there's no objectively reasonable basis for you not to expect that car to make a sudden stop.

Third District: Negligence of Power Company. An accident occurred at an intersection after a Florida Power & Light crew trying to repair a downed power line cut the power in the area, which in turn disabled the intersection's traffic light. The plaintiff sued FP&L for negligence, and a jury originally awarded $37 million, but last year, in this decision, the Third District found the award excessive and reduced it to $10 million. Today, the district court, sitting en banc, vacated the earlier panel decision and held, as a matter of law, that the power company owed no duty to those traveling in the intersection and that turning off power to the intersection did not cause the accident. The court explained that its prior precedents required this result. You can read today's en banc decision here.

Cyberstalking: It's Now a Crime. Of all the new laws taking effect today in Florida, perhaps the most interesting is the new amendment to Florida's stalking law, which now makes it unlawful to "cyberstalk" someone. What does it mean to cyberstalk? Well, the newly amended law defines the term in this way:

"Cyberstalk" means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.
You've been warned.

New Laws Take Effect. It's October 1, and the Tampa Tribune has this story on some new laws that take effect today.

Keeping Watch Over Voting Machines. The AP reports here that a U.S. district court judge who has been addressing Jacksonville-area voters' complaints may hang onto the case for a while. The voters are trying to force the state to implement touch-screen equipment with audio functionality so disabled voters can vote independently.

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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