Abstract Appeal -- by Matt Conigliaro

Friday, November 28, 2003

Post-Free Day. Posting just isn't in the cards for me today. I'm going to take the full day off from here. Be back tomorrow. I hope everyone enjoyed the holiday yesterday.

...posted by ⊥ 7:59 PM ⊥ #

Thursday, November 27, 2003

Happy Day. Happy Thanksgiving to everyone. I have several items to post, but they're going to wait until the turkey is gobbled and the family's enjoyed my Mom's great holiday feast. Enjoy your day, and be thankful!

...posted by ⊥ 10:42 AM ⊥ #

Wednesday, November 26, 2003

Schiavo News. The AP has the latest information on the Schiavo saga in this story, which explains that, yesterday, Governor Bush "appealed" Judge Baird's decision not to recuse himself from the case, and Michael Schiavo's attorneys have announced they will move for summary judgment on Michael's constitutional challenge to the law that allowed the Governor to order Terri's feeding tube reinserted.

I have two comments on these updates.

First, prior reports that the Governor filed his "appeal" this past Friday appear to have been incorrect. Nonetheless, the comments I made about that "appeal" -- including why it is not really an appeal, thus I keep putting the word in quotation marks -- apply now. See my prior posts here and here.

Second, the AP story (like the many Florida newspaper stories that borrowed from it) is a bit unclear about what Michael Schiavo is asking the court to do. The AP states Michael is asking the judge "to rule on [the] lawsuit against Bush without waiting for the case to go through the normal, lengthy judicial process." That deserves some explanation. Michael is going to move for a summary judgment. As any lawyer will tell you, summary judgment motions are a normal, common part of trial court practice. They tell the court (though the court can disagree) that the case has no factual issues that require a trial and that a decision can be made on the merits of the case based solely on the law. That, it seems, will be Michael's argument here: there are no factual issues that require a trial in order to determine whether the new law is constitutional. We know from the Governor's prior filings that he disagrees -- he wants a trial on the issues that were previously tried before Judge Greer, namely what Terri's wishes would be in this situation. So we know the Governor will oppose the summary judgment motion on the ground a trial is necessary and on the ground that Michael is incorrect in his arguments about the law's constitutionality.

The difference between the typical case and the situation here, however, is that summary judgment motions are normally heard after all of the fact development in a case has occurred. Michael is taking the position that no fact development is necessary and therefore it should not be done here. Presumably, it would take a great deal of time, not to mention money and patience, for the parties to conduct the factual investigations necessary to permit them to hold another trial on Terri's wishes (or on other issues).

Whether Judge Baird decides to rule on the legal issues immediately or allow the parties time to develop a factual record for a new trial will probably turn on whether the court agrees with the Governor's position that he is not bound by the findings in the prior trials. For now, we can just wait and see which way the judge rules on that question.

...posted by ⊥ 8:20 AM ⊥ #

Supreme Court: Temporary Halt On Distributing Electronic Court Records. The Supreme Court of Florida is concerned about the growing availability of electronic court records, and yesterday Chief Justice Anstead ordered the state's clerks of court to stop the electronic distribution of many court records while a committee studies the issue. Exceptions include appellate briefs and opinions, among other things. You can read the court's order here and a press release summarizing the court's concerns here.

For those not very familiar with this issue, Florida's courts -- like many courts nationwide -- are concerned that private information contained in court files is becoming too accessible to the public. While most court documents have long been public records, available to anyone willing to visit the courthouse and request to view them or pay for a copy, pragmatic issues (namely, the trouble of doing all that) usually resulted in few records being widely disseminated. With the proliferation of the Internet and low-cost means to transmit voluminous documents electronically, that situation is changing fast, and there are concerns that private information is too easily accessible by those who would misuse it and that some information just should not be so widely available. So, while the matter is studied further, the electronic flow of information out of Florida's courts is being largely halted.

...posted by ⊥ 7:40 AM ⊥ #

Huh? The oddness surrounding this story from today's Palm Beach Post can be seen in the opening line: "The case of a Jensen Beach woman accused of trying to kill her husband with perfume and household cleaners was reduced to a misdemeanor battery charge because none of the spray actually touched the husband, a prosecutor said Tuesday."

...posted by ⊥ 7:21 AM ⊥ #

Imagine This Plate. There's talk in Tallahassee again about legislation to approve a John Lennon license plate, to benefit the Florida Association of Food Banks. Read about it here in today's Sun-Sentinel.

...posted by ⊥ 7:09 AM ⊥ #

Questions, questions. Florida's Sexual Predator Act does not violate the procedural due process rights of those the act deems to be sexual predators, according to this decision yesterday from the First District. Judge Benton dissented, and the court certified the following to the Supreme Court of Florida as a question of great public importance:

WHETHER THE RETROACTIVE APPLICATION OF THE PERMANENT EMPLOYMENT RESTRICTIONS OF SECTION 775.21(10)(b), FLORIDA STATUTES (2000), TO A DEFENDANT CONVICTED AND QUALIFIED AS A SEXUAL PREDATOR, WITHOUT A SEPARATE HEARING ON WHETHER SUCH DEFENDANT CONSTITUTES A DANGER OR THREAT TO PUBLIC SAFETY, VIOLATES PROCEDURAL DUE PROCESS.

...posted by ⊥ 6:57 AM ⊥ #

First District: Securities Regulation. This decision released yesterday by the First District shows that state securities regulation can be more stringent than similar federal legislation. The court decided that the Florida Securities and Investor Protection Act covers the sort of investment contract at issue in this case, even though a prior decision of the Eleventh Circuit (now being reviewed by the U.S. Supreme Court in this case) held that an equivalent contract was not of the sort regulated by the federal Securities and Exchange Commission.

...posted by ⊥ 6:35 AM ⊥ #

First District: Class Actions. Yesterday, the First District released this decision affirming the denial of a motion to certify a class. The plaintiff's claims in the case concern alleged antitrust violations and unfair trade practices, and the district court explained that common questions do not predominate unless the plaintiff shows a methodology will reveal a class-wide impact from the alleged conduct. The plaintiff attempted to use a statistical analysis to make this showing, but the court found the effort to be speculative.

...posted by ⊥ 6:23 AM ⊥ #

Tuesday, November 25, 2003

Schiavo News. The editorial board at the Palm Beach Post has these thoughts on Governor Bush's timing in the Schiavo saga.

...posted by ⊥ 7:04 AM ⊥ #

"Mark" The Evidence Doesn't Mean "Mark" The Evidence. Or so some in the Broward County Clerk of Courts office have learned. Today's Miami Herald has the short story here.

...posted by ⊥ 7:03 AM ⊥ #

Courthouse Honor. It looks like the new federal courthouse being built in Miami will be named, most appropriately, for the late Wilkie Ferguson, Jr. Judge Ferguson passed away this summer. Read about him and the new courthouse here in today's Miami Herald.

...posted by ⊥ 6:59 AM ⊥ #

Pole Watching. After lawsuits and the modern equivalent of a peaceful civil uprising by residents, the good energy folks at TECO have decided to bring down the row of 125'-tall, 32"-wide energy poles they erected without warning in the front yards of a Tampa neighborhood, replacing the behemoths with smaller poles. Read about it here in today's Tampa Tribune.

...posted by ⊥ 6:45 AM ⊥ #

Smoking Ban. Today's Boca Raton News has this story on how some Boca-area restaurants are doing their best to live with Florida's new workplace smoking ban.

...posted by ⊥ 6:25 AM ⊥ #

A Man To Remember: Judge Nimmons. U.S. District Judge Ralph Wilson Nimmons, Jr., passed away Monday at age 65, according to this story in today's Times-Union. Judge Nimmons devoted much of his life to judicial service, having served on both Florida's First District Court of Appeal and the state trial bench before becoming a federal trial judge. The Times-Union story is a nice piece. Judge Nimmons will surely be missed.

...posted by ⊥ 6:24 AM ⊥ #

Sunday, November 23, 2003

Schiavo News. William Levesque, a reporter for the St. Pete Times, has this story on how money is perhaps at the root of the Terri Schiavo case. The sworn testimony recited in the article may come as a surprise, or even a disappointment, to some who have chosen to believe one side over the other in this case. I see it all as further proof that no one should try to use tidbits of information to determine where the truth lies in a case like this one. I believe from experience that you cannot know what really happened in the lives of other people unless you were there or, perhaps, you participate in a full trial over the matter. I cannot make either claim, and that is why I do not contend that I know the truth about who said what or did what in the Schiavo case, or why anyone did any thing.

What I know is that we have a legal system to sort out cases like Terri's. It is a system that we should respect -- it is the product of many great persons' efforts to address the competing moral, practical, and legal interests involved. It is surely not a system beyond improvement, but we can only improve what we understand, and part of my goal in maintaining the Abstract Appeal web log is to inform people about Florida law, including how it handles cases like Terri's.

To that end, I received a question this past week that I wish to answer publicly, since I think the answer may be helpful to many readers. The question is whether it matters, legally, that the definition of "life-prolonging procedures" found in Chapter 765 "was not on the books in its present form when Terri Schiavo expressed her wishes not to be kept alive by artificial means." The simple answer is no, but even people who are paying attention to the law here may not appreciate the main reason why.

Chapter 765, entitled, "Right To Decline Life-Prolonging Procedures," provides Florida's citizens with a right to decline what section 765.101(10) defines as "life-prolonging procedures." As the astute inquirer no doubt appreciates, at the time of Terri's heart failure, that definition specifically excluded "the provision of sustenance" (which would include a feeding tube) as the sort of procedure that could be refused. Only later was that definition changed to include the provision of sustenance as a life-prolonging procedure that can be refused.

The right provided by chapter 765 is a statutory right, but statutes are not the only source of Florida citizens' rights. Another, in some ways more important, source of rights is the Florida Constitution, and Article I, section 23, of that document provides what is commonly known as Florida's "right of privacy":

Every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein.

In the 1990 case In re Guardianship of Browning, the Florida Supreme Court made some very significant decisions about the scope of this privacy right.

First, the court ruled that "[a]n integral component of self-determination is the right to make choices pertaining to one's health, including the right to refuse unwanted medical treatment."

Second, the court ruled that a person's privacy-based right to refuse medical treatment encompasses "all medical choices" by that person.

Third, the court decided that there is no constitutionally significant distinction between supplying someone with oxygen by a mechanical respirator and supplying food and water through a feeding tube -- both constitute treatment that may be declined.

Fourth, the court ruled that a person does not lose the right to refuse medical treatment when he or she becomes incompetent.

Fifth, the court decided that a surrogate may make the choice for a person unable to exercise his or her privacy right, in the sense that the surrogate may determine what choice the person would make, not what decision the surrogate or anyone else would make or the decision that appears to be in the person's "best interests."

Sixth, the surrogate decisionmaker may be the person's legal guardian or a close family member or friend.

It is also significant that the when the Supreme Court decided Browning, the court was reviewing a decision by the Second District that held the court system is open to resolve the dispute if "doubt exists or there is a lack of concurrence among the family, physicians, and the hospital, or if an affected party simply desires a judicial order . . . ." In other words, when disagreement exists, Florida's courts can determine what decision the person would make. Though the Supreme Court did not address this procedure in Browning, the court appeared implicitly to approve it. (This is the procedure that Michael Schiavo used in this case to allow Judge Greer to make the decision about what Terri would decide to do.)

Getting back to Chapter 765 and Terri's case, it is not important that the statutory right to decline life-prolonging procedures did not encompass the withdrawal of a feeding tube when Terri originally expressed her wishes, or even when her heart failed, because the right to refuse a feeding tube is a constitutional right that is effective regardless of whether it is or was codified in a statute. Of course, the statutory right is now better aligned with the constitutional one, and it may well be correct to say that the statute applies to Terri today without regard to the constitutional right, but given that the constitutional right is firmly present, it is enough simply to recognize its application to Terri's case.

I hope some find this discussion helpful.

...posted by ⊥ 4:23 PM ⊥ #

New Voting System. Wondering what's changed with Florida elections since the November 2000 mess? The Tallahassee Democrat has a very interesting article on the subject here and a summary of the legal changes here.

...posted by ⊥ 12:47 PM ⊥ #

Death Row Appeal. Today's Miami Herald also has this interesting story on Florida death row inmate Pablo Ibar and the international effort to reverse his sentence.

...posted by ⊥ 12:32 PM ⊥ #

Holy Last Email! Sometimes I hear a good idea and wish I had thought of it. Other times, I hear a good idea and I'm glad someone else is responsible. The Miami Herald has this story today about a company founded on an idea I put in the latter category: Mylastemail.com will store your "last" emails and send them after your death.

...posted by ⊥ 12:22 PM ⊥ #

An Observation on the Observers. The New York-based National Lawyers Guild brought in people to monitor police activity at the Free Trade Area of Americas meetings this past week in Miami. The group is claiming eight of its observers were arrested and four were beaten by police, according to this story in today's Times-Union. The story mentions that Guild observers wore neon green hats to distinguish themselves from protesters. I can think of several good reasons for them to wear something distinctive (publicity for the group, helping members find each other, etc.), but distinguishing themselves from protesters is not one of them. I wonder why they felt they needed to do that.

...posted by ⊥ 12:04 PM ⊥ #

Yup, A Billion. A 16-year-old on spring break in Daytona participated in a wet t-shirt contest that was filmed. Ultimately, her bare top made it onto a Playboy video, and the woman, who is now suing Playboy in federal court here in Florida, calculates her damages at $40 per video -- or about $1 billion. Read about it here in today's Daytona Beach News Journal.

...posted by ⊥ 11:40 AM ⊥ #

Gay Marriage In Florida. Daytona's News-Journal has this look at the issue.

...posted by ⊥ 11:29 AM ⊥ #

Awards, Awards. This week, Chief Justice Anstead announced the most recent slate of winners of the Chief Justice Awards. The awards are given for outstanding contributions to the judicial branch, and you can check out the whole list of this year's winners here. Congratulations to all of them.

...posted by ⊥ 9:10 AM ⊥ #

Changeable Minds. Today's recap of legal news and such begins with this story from the Tampa Tribune. It seems Hillsborough County officials are rethinking whether they want to keep the first call time for alcohol sales on Sunday at 11 a.m., after earlier bumping it back from 1 p.m. This all relates to an aspect of alcohol sales that many people might not appreciate -- they can be regulated at all levels of local government.

...posted by ⊥ 9:02 AM ⊥ #

Worth It! Yesterday was too nice of a day here in St. Pete. I worked for a while in the a.m. but then had to get outside. The wonderful Debbie and I also saw a play downtown, Eugene O'Neil's "A Moon for the Misbegotten," performed by the great folks at American Stage. If you haven't seen downtown St. Pete lately, you don't know what I mean when I say it's just a pleasure to walk those streets now. What a gorgeous downtown it's become (once again, I'm assured). Then, proving to me that all is right in the universe, I got to spend the evening watching my team back in action. And they are back. What a great day.

Noticeably absent from the preceding activity list is anything to do with blogging the latest legal events. Yup. I have a bit to catch up on -- some cases from this last week, some news, and a question an Abstract Appeal reader sent me last week that I am going to answer online here. Time to get to it. Thanks for stopping by.

(Note: Originally, I posted that I would answer two questions here, but I've decided to answer one of them just in private.)

...posted by ⊥ 8:49 AM ⊥ #

Friday, November 21, 2003

Friday Florida Trivia Answer. The not-so-famous but much visited cities are Bay Lake and Lake Buena Vista. According to the 2000 census, their populations were 23 and 16, respectively.

The significance of these two cities is difficult to overstate. Bay Lake covers approximately 13,500 acres and includes the core of the Walt Disney properties, such as the Magic Kingdom, EPCOT, MGM Studios, and Animal Kingdom theme parks. Lake Buena Vista (originally named Reedy Creek) consists of about 3,000 acres and primarily includes Downtown Disney and the surrounding office areas. Most people just call the whole place "Disney World."

And a world unto itself it is. The Florida Legislature created these cities in 1967 from territory located in what was once just considered Orange and Osceola Counties. I say "once" because the Legislature effectively plucked the territory from the county maps when it made the areas into the Reedy Creek Improvement District. The Legislature granted the District a near full array of governmental powers. Among many other things, it can construct, operate, and mantain public utilities (including nuclear power plants!), telephone and other communications systems, and airports. The area is also exempt from zoning and other regulations of Orange and Osceola Counties, making it, in essence, Florida's sixty-eighth county.

As you might guess, the good folks at Disney own all but a small portion of the land in the District, giving Disney control of the District and making the Mouse one uniquely powerful Florida resident.

This information has been taken from Kent Wetherell's article, published in the Florida Coastal Law Journal, entitled, "Florida Law Because of And According To Mickey: The 'Top 5' Florida Cases and Statutes Involving Walt Disney World." The article is excellent and is highly recommended for anyone interested in Disney, Florida, or Florida law. It covers the law that created what we know as Disney World as well as other significant impacts the Mouse has had on Florida law. Enjoy it!

...posted by ⊥ 4:48 PM ⊥ #

And Even More Schiavo News. The AP reports here that Governor Bush has petitioned the Second District to remove Judge Baird from the constitutional challenge case. As I mentioned previously (in this post), this is technically not an appeal of Judge Baird's denial of the Governor's motion for disqualification, so the automatic stay we saw with last week's appeal by the Governor will not be in play here. Practically speaking, though, this is in essence an appeal, so you will probably see it referred to as such by the media (and maybe even me, if I'm not careful).

The Second District has the ability to deny the petition without requiring a response from Michael Schiavo, or, of course, the court could order a response and then rule either way. I suspect we'll know more on that score either late today or early tomorrow.

...posted by ⊥ 2:57 PM ⊥ #

More Schiavo News. Governor Bush has posted here his brief defending the law that permitted him to order Terri Schiavo's feeding tube reinserted. I encourage those interested in this case to read it, and to read the briefs filed by Michael Schiavo, the Schindlers, and Florida's Speaker of the House. The last two are amicus curiae ("friend of the court") briefs filed by persons who are not parties to the lawsuit. Between all of the briefs, you will get a good sense of the legal battleground here.

You may also pick up on two significant, and related, differences in how the parties believe this case should go forward. Michael sees this case as a purely legal one about whether the Legislature had the constitutional authority to enact the new law that permitted the Governor's intervention. The Governor, on the other hand, contends that this case is about Terri's wishes. He asserts that Judge Greer's findings from the earlier trials regarding Terri's wishes should not simply be accepted here; instead, they should be relitigated. The Governor has even filed a separate motion to strike Michael's brief because it is filled with recitations based on findings from the prior proceedings.

How will this be resolved? And when? That's hard to say. One guess is that Michael will soon file an opposition to the Governor's motion to strike, after which Judge Baird will quickly hold a hearing on that motion. At the hearing, the judge will decide whether he thinks the issues are purely legal ones (Michael's position) or whether new fact-finding is required about Terri's wishes (the Governor's position). From there, depending on how the judge rules, we'll either have a hearing scheduled to argue all of the legal issues or we'll begin the involved fact-finding process we call discovery which will lead up to another trial. Just a guess.

...posted by ⊥ 2:24 PM ⊥ #

Friday Florida Trivia! What two neighboring cities in Florida are home to a combined total of about 40 residents?

Hint #1: You've probably been to (or at least through) both of them.
Hint #2: They have an incredible connection to Florida law, which is why they're the subject of this week's question…

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

...posted by ⊥ 8:00 AM ⊥ #

Schiavo News. Judge Baird yesterday denied Governor Bush's motion asking the judge to recuse himself, according to this story in today's St. Pete Times. The Governor had argued that the judge appeared biased.

Procedurally speaking, it is not clear what is going to happen next. Everyone knows that the case is about whether the new law we've been talking about is constitutional, but the two sides are taking very different positions regarding the procedural posture of the case. I'll discuss this further in a post later today.

...posted by ⊥ 7:42 AM ⊥ #

Thursday, November 20, 2003

Schiavo News. Governor Bush filed his response yesterday on the merits of Michael Schiavo's constitutional challenges to the new law that permitted the Governor to order Terri's feeding tube reinserted. I have not read the Governor's brief yet, but these articles in the St. Pete Times and the Tampa Tribune indicate that the Governor is doing a number of things. First, he is defending the law's constitutionality on the various grounds raised by Michael's challenges, such as separation of powers, equal protection, and Terri's right of privacy. Second, the Governor is asserting that he is not bound by the factual decisions made in the earlier trials regarding Terri's wishes and he is asking for a jury trial on those issues, at which they would be decided again. Third, the Governor has separately moved for Judge Baird to recuse himself, saying the comments the judge made last week about how the Governor's actions are affecting Terri's right of privacy show the judge is biased against the Governor.

Wow. That's a good deal to keep track of here. Florida law requires that Judge Baird rule on the recusal motion first. If the judge grants the motion, the case will be reassigned to another trial judge. If Judge Baird denies the motion, the Governor could "appeal" the decision, but I note that this "appeal" would not trigger the automatic stay mechanism that we saw last week when the Governor appealed the denial of his motion to dismiss. (That's because denial of a motion to recuse is immediately reviewed by initiating a whole new proceeding in the appellate court -- a petition for a writ of prohibition -- which, technically, is not an actual appeal of the trial judge's decision. The automatic stay comes into play only where a state official initiates an appeal as that term is technically used in Florida law.)

As for the jury trial request, that brings up a host of constitutional and other legal issues. I suppose the Governor is arguing that res judicata (the concept that a decision made in an earlier case remains binding on the parties) does not apply to him because he was not a party in the earlier trials between Michael and Terri's parents. So there is an issue about whether the Governor can relitigate those trials and the decisions made in them, and if it were to be determined that those issues could be relitigated here, then there would be an issue about whether the findings at trial are to be made by a judge or a jury.

Expect a very quick decision from Judge Baird on the recusal issue.

...posted by ⊥ 7:59 AM ⊥ #

Gay Marriage In Florida? The St. Pete Times has this story predicting that, like the snowbirds, this issue is on its way down to Florida.

...posted by ⊥ 7:28 AM ⊥ #

Parental Notification, Guns. Republican lawmakers are planning new measures for this next year to firm up support with the party's base, according to this story in today's Daytona Beach News-Journal. Among the items under consideration are a proposed constitutional amendment to permit parental notification before minors undergo abortions and a law that would effectively stop state agencies from compiling gun ownership databases.

The proposal regarding parental notification comes on the heels of this July decision by the Florida Supreme Court, in which the court ruled that the right to privacy provision of Florida's Constitution invalidated a parental notification law. A constitutional amendment permitting notification would supercede any contrary effect of the privacy right.

...posted by ⊥ 7:18 AM ⊥ #

"Jesus Is The Reason For The Season." Broward County officials prohibited a Ft. Lauderdale church for using these words on a display at the county's annual Festival of Lights celebration, but yesterday a federal judge ruled that the county's decision violated the church's First Amendment right to free speech. Judge Zloch ordered the message slightly modified, so it reads "Calvary Chapel Says Jesus Is The Reason For The Season." You can read the Sun-Sentinel's story on the ruling here.

...posted by ⊥ 6:59 AM ⊥ #

Constitutional Change. Leaders in Tallahassee are taking a hard look at alternatives to the process that permits citizens to place proposed constitutional changes on election ballots and amend that governing document by majority vote. Today's Tallahassee Democrat has the story here, and today's Tampa Tribune has its own story here.

...posted by ⊥ 6:44 AM ⊥ #

Florida On The 10 Commandments. Some Florida lawmakers are considering a measure that would urge Congress to advance an amendment to the U.S. Constitution that would permit government references to the 10 Commandments. Any such measure passed by Florida lawmakers would be purely symbolic. Read about it here in today's Bradenton Herald.

...posted by ⊥ 6:30 AM ⊥ #

Wednesday, November 19, 2003

Manatees Bumped… To next year, that is. The AP reports here that the Fish & Wildlife Conservation Commission has decided to postpone until next year any decision on whether to downlist manatees on the state endangerment lists. Good for the critters.

...posted by ⊥ 1:40 PM ⊥ #

Schiavo News. Yesterday, the Second District vacated the temporary stay it imposed Friday on the case before Judge Baird. Read about it here in today's St. Pete Times.

Shortly after the Second District ruled, Judge Baird gave Governor Bush until 5 p.m. today to submit his legal brief defending the new law that allowed the Governor to order Terri Schiavo's feeding tube reinserted. You can read about that order and the Governor's reaction in today's Sun-Sentinel and Tampa Tribune.

In resolving the stay issue, the Second District has decided to let the case proceed simultaneously in both the trial and appellate courts. Judge Baird will continue to hear Michael Schiavo's challenge that the new law is unconstitutional, and Governor Bush will now have to explain why he believes the law is constitutional. At the same time, the Second District will consider the Governor's appeal of Judge Baird's order denying the Governor's motion to dismiss. Recall that the Governor has asserted that the case before Judge Baird should be dismissed because, according to the Governor, Michael's attorneys did not properly serve the Governor with the lawsuit and the case should be heard in Leon County, not Pinellas County. Judge Baird rejected those arguments, and the Second District will now determine whether that decision was correct.

...posted by ⊥ 7:48 AM ⊥ #

Even More Manatee Talk. Florida's Fish & Wildlife Conservation Commission will meet today to discuss whether the manatee should be reclassified from an "endangered" species to a "threatened" species. Read about it in today's Daytona News-Journal and Key West Citizen.

...posted by ⊥ 7:22 AM ⊥ #

Fifth District: Spoliation. The Fifth District denied a certiorari petition in this case where a plaintiff was sanctioned for spoliation of evidence -- i.e., destroying or failing to preserve evidence. The majority opinion does not discuss the facts of the case because the decision to deny relief was based simply on the procedural notion that certiorari is not available and the plaintiff should seek relief by appealing at the end of the case. Judge Griffin, however, set forth the facts in a concurring opinion, and if you follow spoliation case law, you will be interested in this situation. Judge Griffin characterized it as "an interesting lurch in the law of spoliation that aficionados of that ever-expanding doctrine might like to be aware of."

In short, a plaintiff sued a contractor for an alleged construction defect involving a building's foundation. The plaintiff gave the contractor an inspection opportunity and, then, without notifying the contractor, the plaintiff had the defect repaired. The contractor argued that the plaintiff spoliated evidence by not allowing the contractor a chance to observe the repair work, since the work would expose the foundation and give observers a unique opportunity to determine the actual cause of the problem. The trial court agreed and sanctioned the plaintiff. Hmmm.

...posted by ⊥ 6:51 AM ⊥ #

Second District: Arbitration Agreements. If you are following the case law on when arbitration agreements are unenforceable because, for instance, they do not provide plaintiffs the same remedies available in court, you will want to check out this decision from the Second District.

...posted by ⊥ 6:35 AM ⊥ #

Second District: More Conflict. The Second District certified conflict in another case recently: this case presents the somewhat obtuse legal issue of whether PIP insurers can enter provider agreements with PPO networks and thereby pay lower reimbursement rates than is required by this statute. The court certified that its decision conflicted with a prior decision from the Fifth District.

...posted by ⊥ 6:17 AM ⊥ #

Second District: Citation Conflict. Florida has a law (this one) that prohibits traffic citations from being used as evidence in "any trial." But what if a person signs someone else's name to a citation and is later charged with forgery? In this case, the Second District held that the statute does not preclude admitting forged citations as evidence in a forgery trial. The court certified that its decision conflicted with an earlier decision from the First District, so it looks like the Florida Supreme Court will resolve the question.

...posted by ⊥ 5:58 AM ⊥ #

Tuesday, November 18, 2003

Second District: When Deceptive Bolstering's Not A Fraud. A plaintiff suing tobacco companies asked her doctor to change her medical records to indicate that smoking caused her cancer. St. Pete's own Judge Penick was not pleased -- he sanctioned the plaintiff by dismissing her suit, finding her request an effort to defraud the court. In this decision, the Second District found that the plaintiff was not attempting to defraud the court, and thus the punishment was too harsh.

I wonder what lesser sanction will be imposed on remand.

...posted by ⊥ 10:30 PM ⊥ #

Mo' On Manatees. These colorful thoughts on whether to downlist Florida's favorite creature to "threatened" status are from the informed perspective of Florida's own Carl Hiaasen. (Thanks to JHL for the link.)

...posted by ⊥ 10:13 PM ⊥ #

Manatee Status. The Palm Beach Post editorial staff has these views on whether Florida's Fish & Wildlife Conservation Commission should reclassify manatees as a threatened species, rather than an endangered species. The classification affects how heavily the state regulates manatee habitats. The FWCC is scheduled to vote on the reclassification issue tomorrow. You can read a full story on the subject here, in today's Tampa Tribune.

...posted by ⊥ 11:52 AM ⊥ #

The Court Reporter's Running Late… and now she's in jail on what looks like a contempt charge. Read about it in this story from today's Miami Herald.

...posted by ⊥ 11:36 AM ⊥ #

Ah! Practicing law is truly fun, even though it can sometimes consume you. That's how it has been the last day or two for me, and that's why I have not posted since the Schiavo update on Sunday. Fortunately, while I was supposed to attend an all-day hearing today to recover appellate attorney's fees for an appeal we won, the matter has come to an amicable resolution without the hearing, and I'll be able to spend today catching up on things, including Abstract Appeal. Be back soon.

...posted by ⊥ 7:58 AM ⊥ #

Sunday, November 16, 2003

Schiavo News. It turns out yesterday's "latest" was not the latest at all. The St. Pete Times reports here that, late Friday, the Second District issued an order "indefinitely" reinstating the stay of the case before Judge Baird.

So what just happened? Recall that Governor Bush moved to dismiss Michael's constitutional challenge to the new law based on two procedural arguments: that Michael's attorney did not deliver a copy of the lawsuit to the Governor in the right manner (the service of process issue), and that Michael should have filed the suit in Leon County, not Pinellas County (the venue issue). Judge Baird denied that motion, rejecting both grounds. Governor Bush then filed a notice that he intended to appeal that denial, and, under Florida's procedural rules, that notice triggered an automatic stay of the case until the appellate court resolves the service of process and venue issues.

Under the procedural rules, however, trial judges (like Judge Baird here) have discretion to vacate this sort of automatic stay, and the trial judge's ruling on whether to do so can be immediately reviewed by the appellate court. By all appearances, that is what is happening here. Michael moved in the trial court to vacate the automatic stay, Judge Baird granted that motion (which would allow Michael's constitutional challenge to go forward at the same time the Governor's appeal goes forward), and Governor Bush moved in the appellate court to have the stay reinstated. The Second District is now considering that motion, and, in the meantime, the court has issued a stay.

The Times's report that the stay is indefinite is probably inaccurate. The stay is likely a temporary one that will last only until the court rules on whether to reinstate the stay. I suspect this because the story indicates that Michael has until Tuesday to file a response with the Second District explaining why the trial court proceedings should be expedited. I take that to mean that the Second District has stayed the trial court proceedings temporarily to allow both sides to be heard on the issue of whether the trial court proceedings should be stayed during the appeal of the order denying the Governor's motion to dismiss.

So we have a stay while the appellate court decides whether to enter a stay. That may seem bizarre to some, but it is actually quite normal. Michael will file his response on the issue of the stay Tuesday. The court will then rule on that issue. If the court grants the Governor's motion, the case in front of Judge Baird will remain halted until the appellate court rules on the procedural issues raised in the Governor's motion to dismiss. If the court denies the Governor's motion, then the trial court and appellate court proceedings will both go forward at the same time.

...posted by ⊥ 1:16 PM ⊥ #

Saturday, November 15, 2003

Schiavo News. Today's St. Pete Times has the latest here. To sum it all up, yesterday Judge Baird vacated the stay put in place automatically when Governor Bush appealed the denial of his motion to dismiss the case. (For more on the stay and the motion to dismiss, see this post.) Vacating the stay allows the case to go forward before Judge Baird while the Second District considers the Governor's appeal.

At the hearing on whether to vacate the stay, Judge Baird apparently gave strong indications that he believes the new law is violating Terri's right to privacy -- meaning her right to determine whether she wishes to continue receiving life prolonging measures in this situation. Recall that previous trials and appeals determined, by clear and convincing evidence, that Terri would chose not to continue receiving her feeding tube under these circumstances.

Judge Baird has apparently ordered the Governor to file his brief on the merits of Michael's constitutional challenges by Monday. Given the judge's comments yesterday, it is probably a good bet that a hearing on the entire matter will shortly follow.

...posted by ⊥ 7:11 AM ⊥ #

Friday, November 14, 2003

Schiavo News. The Schindlers are scheduled to appear on Larry King Live tonight at 9 p.m. EST.

UPDATE: Scheduled or not, they were not on tonight's program. I'm no longer going to believe anyone who tells me (or any Terri Schiavo-affiliated site that says) the Schindlers are going to be on Larry King Live -- or at least I'm not going to post anything about any such scheduled appearance. The Schindlers were apparently on Oprah, today, though.

...posted by ⊥ 6:46 AM ⊥ #

Attention Attorneys: Court Deadlines/Operations Suspended. Yesterday, Chief Justice Harry Lee Anstead entered an order suspending numerous court-related deadlines and operations in Miami-Dade County because of anticipated problems with court access during next week's Free Trade Area of the Americas Summit. The FTAA Summit will be held in Miami during November 17 through 21, and thousands of protestors are expected to flood downtown Miami's streets. The Miami-Dade County suspensions include the following:

- appellate time limits
- operations in the Dade County Courthouse and the Lawson E. Thomas Center
- speedy trial time limits
- time limits for domestic violence injunctions under chapters 741 and 748
- Baker Act hearing time limits
- certain foreclosure sales

For more detailed information about the suspensions, you can read the Chief Justice's order here.

...posted by ⊥ 6:39 AM ⊥ #

Doctors v. Plaintiffs' Lawyers. Today's News-Journal has this interesting story on the next phase in the war between Florida's doctors and the plaintiffs' lawyers who sue them: dueling proposed constitutional amendments.

Frankly, this is amusing, but more so it is sad. The state constitution should not be a battleground for tit-for-tat political gamesmanship.

...posted by ⊥ 5:52 AM ⊥ #

Supreme Court: APA Standing. Yesterday, in this decision, the Florida Supreme Court held that the NAACP had standing to challenge adminstrative rules by which the Board of Regents first implemented Governor Bush's One Florida plan. At least, that will be the headline.

One Florida is controversial because it eliminated race as a factor in state college admissions, but yesterday's decision seems to have little, if anything, to do with One Florida. The NAACP's challenge was to a series of amendments that the Board of Regents made to Florida's administrative rules. The Board of Regents was a statutory creature, and so its rules were subject to challenge under the Administrative Procedure Act. In the 2002 election, however, the people of Florida adopted Article IX, section 7, of the Florida Constitution, which created the Board of Governors to oversee the state's university system, and that constitutionally-authorized board has now adopted the Board of Regents's rules that are challenged in this case. To make a long story short, there is a strong argument that the NAACP's adminstrative challenge is now moot on the ground that the rules of a constitutional agency are not subject to APA challenges.

Three justices dissented from yesterday's decision solely on the ground that the mootness issue loomed large enough that it should be addressed by the lower courts before the Supreme Court resolved the APA standing issue. In a footnote, the majority recognized the case's potential mootness but went ahead to decide the APA standing issue anyway. So, in the end, the court's decision appears to be one about how broad the standing doctrine is when applied to the APA -- something that may now be of no moment to the One Florida challenge.

...posted by ⊥ 5:17 AM ⊥ #

Third District: Crack On! You know what that term means, right? If not, Judge Gersten will tell you in this decision from the Third District.

...posted by ⊥ 4:37 AM ⊥ #

Third District: Creative Insurance Arguments. For those in doubt, here's a reminder that courts do not automatically stretch the terms of an insurance policy to find coverage wherever a sympathetic loss occurs. In this case, the Third District addressed a situation where a man set to undergo chemotherapy treatment decided to cryopreserve his sperm so that, even if the treatment made him sterile, he and his wife might still have an opportunity to have children. The treatment ultimately left him sterile, but the cryopreservation company inadvertently destroyed the frozen sperm. The couple then attempted to recover from the company's insurance policy, asserting that the destruction constituted "bodily injury" as covered by the policy. The appellate court affirmed a trial court's decision finding no coverage, because sperm outside the body was not a body part to which "bodily injury" could occur.

...posted by ⊥ 4:32 AM ⊥ #

Fourth District: Civil Procedure 101. This decision from the Fourth District reminds us that Rule 1.530 of the Rules of Civil Procedure permits a party to file a motion for new trial or a motion for rehearing, but the rule does not permit a motion for rehearing of a ruling on a motion for new trial.

...posted by ⊥ 4:08 AM ⊥ #

Third District: CI Conflict. In a criminal prosecution, can the state avoid disclosing the name of a confidential informant where the defendant claims the identity is relevant to a misidentification defense? In this case, the Third District held disclosure is not required. The court certified that its decision conflicts with a prior decision from the Second District, so perhaps the Florida Supreme Court will sort out which court is correct.

...posted by ⊥ 3:57 AM ⊥ #

Third District: Easy On The Perry Mason. In a criminal case, no matter how much one witness's story differs from the stories told by other witnesses, the prosecution is not permitted to ask a witness whether another witness, or all the other witnesses, lied. Read about the rule in this decision from the Third District.

...posted by ⊥ 3:50 AM ⊥ #

Back in Action. Happy Friday! Time for a series of posts on the noteworthy cases of the last two days.

...posted by ⊥ 3:43 AM ⊥ #

Thursday, November 13, 2003

Abstract Post. Work has gotten the best of me this last day. Some interesting decisions have come down, and some interesting events have occurred, too, but it will be later today that I get a chance to post about them. I hope everyone out there is having a splendid day.

...posted by ⊥ 4:01 PM ⊥ #

Wednesday, November 12, 2003

Schiavo News. According to this recent story from the AP, Michael Schiavo has filed a motion asking Judge Baird to vacate the stay that currently has the constitutional challenge effectively stopped in its tracks. As discussed more in this prior post, the stay went into effect automatically when Governor Bush initiated an appeal of Judge Baird's decision denying the Governor's motion to dismiss the case. By rule, the trial judge has discretion to lift the stay and allow the case to continue while the Governor pursues his appeal. From the quotes in the AP story, it appears Michael's attorney is mincing no words about what he believes to be delay tactics by the Governor.

While the AP story provides a helpful update, it unfortunately concludes with the following language:

Florida courts had repeatedly affirmed the right of Michael Schiavo to remove his wife's feeding tube because he is her legal guardian.

This disappoints me. I know the Associated Press folks try to get things right, and perhaps they will release a corrected version of the story soon, but I cannot understand why the sophisticated media cannot keep straight that Michael Schiavo's status as Terri's guardian has nothing to do with the removal of her feeding tube. As Abstract Appeal's Terri Schiavo Information Page tries to make clear, a court, not her guardian, determined that Terri would choose not to continue life-prolonging measures in her current condition. That decision came after a full trial and it was affirmed by a unanimous three-judge panel of the Second District Court of Appeal. Michael Schiavo did not make that decision. He advocated for it, and he testified in support of it, but he did not make it. No court has affirmed (let alone repeatedly affirmed) "the right of Michael Schiavo to remove his wife's feeding tube" for any reason.

...posted by ⊥ 4:45 PM ⊥ #

Going Public. Many people appreciate that Florida has a very broad public records law, but do you know that the media routinely check through various officials' email records, hoping to find something newsworthy? Now, the emails discussed in this story in today's Palm Beach Post were probably not found through a random search, but either way, they make a good example of the sort of things media folks love to find in public officials' email…

...posted by ⊥ 8:00 AM ⊥ #

Jimmy Ryce Act. The Fourth District is considering a new constitutional challenge to the Jimmy Ryce Act, which permits state officials to detain persons formerly convicted of sex offenses. The oral argument was held Monday, and you can read about it in this story in today's Miami Herald.

You may recall that back in September, the Fourth District certified a question on the Jimmy Ryce Act to the Supreme Court of Florida. For more on that, see this Abstract Appeal post from September 18, 2003.

...posted by ⊥ 7:46 AM ⊥ #

Tuesday, November 11, 2003

Schiavo News. The Tampa Tribune has a story here, and the St. Pete Times has a story here, on the two Schiavo-related developments from yesterday: House Speaker Johnnie Byrd's decision to file an amicus curiae ("friend of the court") brief defending the constitutionality of the new law being challenged by Michael Schiavo, and Governor Bush's decision to appeal Judge Baird's rulings that the suit was filed in an appropriate county and that the Governor has no basis to complain about how he was served with the suit papers. If you scroll down a little to yesterday's last post (or click here), you can read my comments on the immediate effects of the Governor's appeal.

...posted by ⊥ 7:33 AM ⊥ #

Unlawful Ticketing Policy? A Tampa circuit judge has invalidated a Hillsborough County Sheriff's Office policy of not ticketing deputies for civil traffic infractions, according to this story from today's Tampa Tribune. The court determined that whether the Sheriff's Office should ticket a deputy should be discretionary, though the story makes no mention of the judge's legal basis for that decision.

...posted by ⊥ 7:17 AM ⊥ #

Arbitration's Everywhere. The Palm Beach Post has this story on how Jupiter Christian School -- the school being sued for breach of contract based on its decision to expel a gay student -- is demanding that the case be arbitrated. Apparently, the agreement the student's mother signed when her son enrolled in the school included an arbitration provision.

...posted by ⊥ 7:01 AM ⊥ #

Foster Care Litigation. The Miami Herald has this story on how class action litigation involving general oversight of Florida's foster care programs has come to a successful end for state officials.

...posted by ⊥ 6:49 AM ⊥ #

If You Can't Call Anyway… Legislators are considering ending Florida's "Do Not Call" List, in light of the federal government's adoption of a similar, nationwide program, according to this story from today's Times-Union.

...posted by ⊥ 6:40 AM ⊥ #

Early Results of Reform. Today's News-Journal has this story on the medical malpractice reforms enacted by the Legislature this past summer. Apparently, doctors' insurance rates will be lower than they otherwise would have been, but the rates are still going up.

...posted by ⊥ 6:25 AM ⊥ #

Monday, November 10, 2003

Schiavo News. The latest news is available here from the AP, and I am sincerely wishing I was on the service list for these cases so I could better follow them. According to the story, House Speaker Johnnie Byrd has requested Judge Baird's permission to file an amicus curiae ("friend of the court") brief defending the constitutionality of the new law at issue. More interestingly, the story indicates that today, instead of filing a brief on the merits of Michael Schiavo's constitutional challenge, Governor Bush initiated an appeal from Judge Baird's order denying the Governor's motion to dismiss the case.

Here's what seems to be going on: The Governor moved to dismiss Michael's suit against the Governor based on (1) improper venue, which is to say that the case was filed in the wrong place, and (2) a failure to serve Governor Bush with process, which is a legal way to say Michael Schiavo's lawyers did not properly deliver the suit papers to the Governor. Why would the Governor file such a motion? I cannot say, but it seems the Governor would rather litigate this case in Tallahassee, rather than Clearwater. (I'll also note that appeals from Tallahassee's trial courts are not brought to the Second District, which previously heard all of the appeals in the Schiavo case, but are instead brought to the First District.)

Judge Baird denied the Governor's motion to dismiss last week, and Florida law permits that decision to be reviewed immediately by the local district court of appeal -- here, the Second District. Florida law also provides that where a public officer files an appeal, the proceedings in the lower court are automatically stayed -- meaning that they stop where they are for the time being. So things have now come to a halt in Judge Baird's case, and the Governor does not have to file his brief today on the merits of Michael Schiavo's challenge. The law, however, does permit Michael Schiavo to ask Judge Baird (and, if necessary, to ask the Second District) to lift the stay and allow the trial court proceedings to continue while the appeal proceeds.

One last point: the appeal will concern only the merits of the Governor's arguments on venue and service of process. The appeal will not concern the new law's constitutionality.

...posted by ⊥ 5:41 PM ⊥ #

School Vouchers Case. The trial judge in the school vouchers case, Circuit Judge Kevin Davey, has ordered the state Department of Education to increase the appellate "bond" in that case by $2 million, according to this story from the AP.

To explain that a bit, the case involves a challenge to Florida's Opportunity Scholarship Program, which essentially permits parents of students in Florida's failing schools to receive scholarships that may be used to send those students to other schools of the parents' choosing, including religious schools. Judge Davey decided that allowing parents to choose religious schools (and thus spend taxpayer money at those schools) violates Article I, section 3, of the Florida Constitution.

While the State is appealing that decision to the First District, Judge Davey has required the State to put up a bond in an amount that would cover the monies the public school districts are not receiving because students are using scholarship monies instead to attend private religious schools. (The State pays school districts a certain amount for each student in attendance, so if a student uses an Opportunity Scholarship to attend a private school, the student's school district does not receive money it would receive if the student attended the local public school.) The State has actually obtained a letter of credit, rather than put up a bond, and the amount now needs to be increased in order to account for greater "losses" to the public schools over time if Davey's ruling is upheld.

Knowing all this, I wonder if you would be surprised to learn that the schools who would supposedly receive the "bond" monies if Davey's order is upheld are not parties to the case. The plaintiffs are individuals and organizations…

...posted by ⊥ 4:45 PM ⊥ #

Schiavo Briefs Coming In. Here, you can access a copy of the Schindlers' legal brief defending the constitutionality of the new law that allowed Governor Bush to order Terri's feeding tube reinserted. Governor Bush should be filing a brief defending the law today.

You can read Michael Schiavo's brief arguing against the constitutionality of the new law here. You can also read the earlier Abstract Appeal post on the value of (and some cautions about) reading court briefs here.

...posted by ⊥ 8:09 AM ⊥ #

Schiavo News. The folks at the St. Pete Times have gone through four hours of video introduced as evidence during the trial court proceedings in the Schiavo case, and they have put together this story on the big picture of Terri's condition.

...posted by ⊥ 7:52 AM ⊥ #

Justice Inspires. The Times-Union has this story on Justice Pariente and the positive responses she's received to her decision not to use a wig to hide the hair loss she's experienced from chemotherapy. Hear, hear.

...posted by ⊥ 7:27 AM ⊥ #

Defining Dangerous. Sometimes laws are vague, and sometimes people simply disagree over whether they come within a certain law's scope. This story from today's News-Journal is a slight variation on this idea, but not much of one, since it deals with some Volusia County folks who have had difficulty dealing with state and local laws that deem when dogs are dangerous.

...posted by ⊥ 7:10 AM ⊥ #

Investigating Nursing Home Deaths. The Bradenton Herald has this story on how state legislators are considering a requirement that county medical examiners perform autopsies on all who die in nursing homes. Considering how many folks who move into nursing homes reside there until death, that seems like a lot of autopsies.

...posted by ⊥ 7:02 AM ⊥ #

Saturday, November 08, 2003

Hey, That's Me! As I mentioned previously, I had the honor of arguing before the Florida Supreme Court yesterday in a case involving constitutional challenges to two Florida laws on criminal sentences. The St. Pete Times has a story on the oral argument here, and, in case you wouldn't otherwise be sure, yeah, the Matthew Conigliaro mentioned in the article is yours truly.

I'll add to the story that whether the 1999 sentencing laws were invalid because of a "single subject" violation by the Legislature is a question the state supreme court is going to decide. The district courts have split on that issue, and part of my argument yesterday was that the 1999 law did violate the Florida Constitution's single subject requirement. You can read that requirement here.

...posted by ⊥ 12:12 PM ⊥ #

And Still More Schiavo News. The AP has this interesting story on the medical aspects of the Schiavo case, comparing them to those of the case of Terry Wallis.

The St. Pete Times has this story about the investigation to be conducted by the new court-appointed guardian ad litem for Terri, Dr. Jay Wolfson. According to the story, Wolfson has been appointed to examine whether Terri can benefit from therapy that might allow her to swallow food and water, but Governor Bush wants Wolfson also to investigate whether Terri would want to "die by starvation."

Finally, I've found the answer to my question below about what happened to the Schindlers' scheduled appearance on Larry King Live. The print version of today's St. Pete Times contains the following in a box alongside the main Schiavo story linked below: "Bob and Mary Schindler, the parents of Terri Schiavo, canceled an appearance on Larry King Live scheduled for Friday night because of exhaustion. A family spokeswoman said the family was trying to reschedule." That note is not found on the Times's web site.

...posted by ⊥ 12:05 PM ⊥ #

More Schiavo News. The folks from the St. Pete Times have culled through the trial transcripts from this case and put together this story on the evidence of Terri's wishes. It's a good story, and it brings up pieces of testimony that have been ignored by many in this now very public controversy.

I should add one thing to the Times story: The story can be read to suggest that the words attributed to Terri were the only evidence the trial court relied upon to find that Terri would not wish to continue life-prolonging procedures in her current condition. That's not the case. In making that decision, the trial court was required to consider many factors, including Terri's current medical condition and the likelihood of any significant recovery.

...posted by ⊥ 11:44 AM ⊥ #

Schiavo News. Yesterday, Judge Baird denied Governor Bush's motion to dismiss Michael Schiavo's challenge to the constitutionality of the new law that allowed the Governor to order Terri's feeding tube reinserted. You can read about it in this story from the AP.

The story indicates that Judge Baird has now given the Governor until Monday to respond to Michael's constitutional arguments on their merits.

...posted by ⊥ 11:31 AM ⊥ #

DNA Deadlines. Yesterday, the Florida Supreme Court heard arguments on whether the court can effectively extend the two-year statutory period for free DNA testing for those convicted of crimes. During that period, DNA evidence from a case may not be destroyed. I attended this oral argument, and one thing about it that I found very interesting was that no one took any position other than that the court could and should extend the testing and no-destruction deadlines -- despite the fact that earlier in this case three justices expressed the belief that the court lacks the power to do so even temporarily while the merits of the case are under consideration, let alone to do so permanently. You can read the AP's story on the oral argument here, you can read the statute at issue here, and you can read the earlier order and dissents on whether to extend the deadlines temporarily here.

...posted by ⊥ 11:04 AM ⊥ #

First District: Access to Tests. On Thursday, the First District reversed a trial judge's decision to allow parents access to the questions and answers to the FCAT exams taken by their children. The court ruled that the Florida statute that allows parents access to student records, including test scores, does not encompass the tests themselves, which remain confidential in the hands of state officials. You can read the appellate court's decision here.

...posted by ⊥ 10:40 AM ⊥ #

Fourth District: Taking Sides. Where an inmate files a motion alleging ineffective assistance of counsel because the inmate's trial lawyer failed to call a witness, is the motion facially insufficient if it fails to set for that the witness was available to testify? In this case decided this week by the Fourth District, the court said yes, agreeing with previous decisions from the First, Third, and Fifth Districts and disagreeing with a decision by the Second District.

...posted by ⊥ 10:14 AM ⊥ #

Third District: Settlement Agreements. This decision from the Third District reminds us of the basic, common law principle that, to be valid, an acceptance must mirror the terms of an offer. The case involved an insurer's efforts to accept the portion of a settlement offer relating to a bodily injury claim and not accept the portion regarding property damages.

...posted by ⊥ 9:46 AM ⊥ #

Third District: Moving Borders. In this case, the Third District considered the question of how far Florida law considers Florida's territory to extend eastward. This was important because it affected whether alleged medical negligence by a cruise ship doctor took place within Florida, which in turn affected whether Florida's courts could exercise jurisdiction over the doctor. The court relied on Article II, section 1 of the Florida Constitution to determine that the eastern boundary is the greater of three miles from the Atlantic coastline or the edge of the Gulf Stream. The court recognized that since the Gulf Stream's borders move, Florida's eastern border can move as well under the constitutional definition, but the Court found the wisdom of the chosen language to be an issue for those who drafted and voted on Florida's Constitution.

So how did the case turn out? Allegedly, the malpractice took place when the ship was 11.7 miles off Florida's shores, at a point where the Gulf Stream began 14 miles offshore, so the court found that the allegations in the case stated a claim for malpractice within the State of Florida.

...posted by ⊥ 9:26 AM ⊥ #

First District: Forum Selection Clauses. Can two parties enter a contract that would require them to go to the courts of another state to litigate any future claim between them under Florida's Unfair and Deceptive Trade Practices Act? Yes, according to this decision by the First District.

...posted by ⊥ 9:15 AM ⊥ #

A Happy Return. Well, I'm glad to be back in St. Pete and ready to catch up with some posts on the legal events of the last two days. I have a question on a non-legal event, though, related to the Schiavo case. What happened to the Schindlers' scheduled appearance on Larry King Live last night? On Thursday a.m., I posted a link to the LKL page at cnn.com that, at that time, indicated the Schindlers were scheduled for Friday, but when I returned to St. Pete last night and turned on cnn, LKL's guest was not the Schindlers but Tom Jones. I don't think I dreamt up the page that showed them scheduled. If anyone can update me on what happened there, I'd appreciate it.

...posted by ⊥ 7:45 AM ⊥ #

Friday, November 07, 2003

Friday Florida Trivia Answer. The influential other defendant was Walt Disney World Co. To be precise, the Legislature first acted between the time the case arrived at the Fourth District and the time the Supreme Court decided the case -- enacting a law that significantly eroded joint and several liability, though only for incidents taking place after the law took effect. Shortly after the Supreme Court's decision to maintain the common law doctrine, and then several more times over the years, the Legislature amended that law and reduced the number of situations where joint and several liability still applied. The doctrine is now relatively rare.

...posted by ⊥ 4:59 PM ⊥ #

Friday Florida Trivia! In 1986-87, the Florida courts considered a case in which two persons contributed to a plaintiff's injuries. A jury heard the case and apportioned 14% of the fault for the injury to the plaintiff herself, 85% to the plaintiff's fiance, and 1% to another defendant. The issue before the courts was whether to continue giving effect to the common law doctrine of joint and several liability, which in this case required the fiance and the other defendant each to be responsible for 86% of the plaintiff's damages; the plaintiff could not get a double recovery, but she could collect the 86% from either defendant and then the defendants would have to work out among themselves who owed what to whom. The 1% liable defendant was good for the money and a bit disturbed about having to pay 86% of the plaintiff's damages.

Well, the courts decided to adhere to the longstanding joint and several liability doctrine, saying it was for the Legislature to determine whether to change the common law in this regard. This produced a bit of an outcry, and the Legislature stepped in and passed a statute to change the law (going forward, not for this case) to require defendants in most cases to pay only in accordance with their percentage of fault.

Here's the question: who was the influential other defendant?

I'll post the answer some time tonight.

...posted by ⊥ 7:22 AM ⊥ #

Schiavo News. The St. Pete Times reports here that, on Wednesday, the Schindlers filed an amicus brief with Judge Baird in which they defend the constitutionality of the law that permitted Governor Bush to order Terri's feeding tube reinserted.

...posted by ⊥ 7:06 AM ⊥ #

Still Pausing… I'm in Tallahasse this morning for the oral argument I mentioned here yesterday, so I've almost no time to blog. I'll do just a quick post on the Schiavo case and a trivia question. I'll catch up on the interesting legal events of the last day later.

...posted by ⊥ 7:03 AM ⊥ #

Thursday, November 06, 2003

Schiavo News. The St. Pete Times today has this story on how attorneys for Governor Bush yesterday filed a motion with Judge Baird to dismiss the case testing the new law's constitutionality. From the story, it sounds as if the motion is based on procedural concerns -- proper service of notice of the lawsuit and whether the case should be pending in Pinellas County (where Terri is) or Leon County (where the capitol is).

Times columnist Mary Jo Melone has this column about the guardian ad litem who advised Judge Greer on Terri's condition and fate in 1998-99. According to the column, the former guardian ad litem changed his mind about Terri's wishes after the last trial, based on the medical testimony.

Elsewhere, nationally syndicated columnist Ellen Goodman has these thoughts today on the Schiavo case.

Finally, the Schindlers are scheduled to be on Larry King Live this Friday at 9 p.m. EST.

...posted by ⊥ 5:49 AM ⊥ #

Abstract Pause. I'll be very light with the blogging today. I need to spend the day out of the office at a client's headquarters and then this evening I'm on a flight to Tallahassee for an oral argument I have tomorrow before the Florida Supreme Court. (If you're curious, State v. Green is a case in which the Court appointed me and others from my firm to argue that two Florida sentencing laws violate the Florida and federal constitutions. The case is consolidated with Franklin v. State. You can access information on the Franklin/Green cases here, and you can read our legal brief here. If you're really interested, you can even watch the oral argument on the Internet at approximately 9:10 tomorrow morning from a link on this page.)

These activities -- and they don't get too much more important than arguing before your state supreme court -- will have me tied up for much of the next day and a half, so blogging will be minimal. I'll post some notes about some interesting DCA and 11th Circuit opinions some time Friday. So far, yesterday brought us just a few noteworthy cases.

Before I go, though, I will post the latest news on the Schiavo case.

...posted by ⊥ 5:45 AM ⊥ #

Wednesday, November 05, 2003

Schiavo News. Judge Baird has denied the Schindlers' motion to intervene in the lawsuit between Michael Schiavo and state officials, as reported in this story from today's St. Pete Times. Yesterday, I mentioned in this post that even if the Schindlers' motion was denied, they would likely be permitted to file legal arguments as amici curiae ("friends of the court"), and that's apparently what happened. So the Schindlers will have an opportunity to be heard; they will just not be parties to the suit.

The Times story also mentions that legal briefs defending the constitutionality of the new law are due tomorrow. Earlier reports indicated they were due today.

Finally, the Miami Herald has this story on presidential candidate Howard Dean's criticism of Florida's Legislature and Governor for entering the Schiavo case as they did.

...posted by ⊥ 7:05 AM ⊥ #

Adoption Push. Governor Bush has kicked off a state campaign to encourage adoptions that includes streamlining the legal process involved. Read about it here in today's Tallahassee Democrat.

...posted by ⊥ 6:43 AM ⊥ #

Muslim Woman's Suit Fails. A West Palm Beach judge has granted The Breakers summary judgment in a suit by a Muslim woman who claimed the resort fired her on September 12, 2001, because of her religion. Read about it in this story from today's Palm Beach Post.

...posted by ⊥ 6:34 AM ⊥ #

Egged On. A Weston man who chased down and grabbed kids who allegedly threw eggs at his front door was cited for battery by the local sheriff's office, according to this story in today's Miami Herald.

...posted by ⊥ 6:18 AM ⊥ #

Unfair Hearings. Yesterday, a Broward circuit judge criticized the legal system as unfair for allowing hearing officers who are not lawyers to hear citizens' appeals in some DUI license suspension cases. By the time a judge gets to hear the case, the person's suspension may be over. Read about it here in today's Miami Herald.

...posted by ⊥ 6:10 AM ⊥ #

Broward Election Woes. Is it meaningful that more mailed-out ballots in Broward County were returned as undeliverable than were returned with votes for yesterday's elections? As this story from the Sun-Sentinel indicates, the mail-in situation may add to the pressure already on Governor Bush to remove County Elections Supervisor Miriam Oliphant.

...posted by ⊥ 5:57 AM ⊥ #

Boca Bodies. A company named Suspended Animation wants to open a research facility in Boca Raton, where it would continue work on storing bodies so they can be brought to life in the future. This story from today's Sun-Sentinel has the details, and even some discussion about Ted Williams.

...posted by ⊥ 5:51 AM ⊥ #

Tuesday, November 04, 2003

Schiavo News. Michael Schiavo is taking the position that the Schindlers do not meet the legal requirements necessary to intervene in his suit on the constitutionality of the new law that permitted Governor Bush to order Terri's feeding tube reinserted. Read about it here in today's St. Pete Times.

To help clarify this a bit, Michael's new lawsuit is against Governor Bush and Attorney General Charlie Crist. The Schindlers are not parties to this suit, but they have requested that they be permitted to intervene as parties so they can defend the law's constitutionality. Florida law is fairly specific about who can intervene in a lawsuit between other parties. Though I'm not going to predict how Judge Baird will rule, I will note that even if the Schindlers' motion to intervene is denied, Judge Baird would be free to permit the Schindlers to file legal arguments as amici curiae -- "friends of the court" -- so there is probably little chance that the Schindlers will not be heard in this case.

...posted by ⊥ 7:37 AM ⊥ #

"Steve and Mindy's Law." Governor Bush and the Legislature acted quickly this week to prevent the marriage of Steve Burman and Mindy Louise Smith, according to this piece in today's St. Pete Times.

...posted by ⊥ 7:28 AM ⊥ #

Another School Fight. But this one's a little different. This case involves a neighborhood association's thus-far-unsuccessful-but-not-yet-over lawsuit against the Palm Beach County School District to prevent the county from building a high school near the community. The school opened this past fall. Read about it -- where else? -- here in today's Sun-Sentinel.

...posted by ⊥ 7:10 AM ⊥ #

War Suit. Today's Sun-Sentinel has this story about a lawsuit pending in federal court in Miami that involves a Nazi gold train from which U.S. Army generals supposedly plundered the treasures of Hungarian Jews.

...posted by ⊥ 7:05 AM ⊥ #

School Fight. A middle school teacher from Lake Worth who broke up a fight between two students and was assaulted in the process has filed suit against the Palm Beach County School District. She says the suit -- which is also against the parents and grandparents of the student who assaulted her -- is not about money but about getting the school to change its policies. Read about it all here in today's Sun-Sentinel.

...posted by ⊥ 6:46 AM ⊥ #

$310 Million For Scripps, and Better Marriages… Yesterday, Governor Bush signed into law a bill that provides $369 million in incentives to Scripps Research Institute for building research facilities in Florida, including a $310 million grant. Read about it here in today's Palm Beach Post. Note that the story includes this optimistic quote from House Speaker Johnnie Byrd: "If we diversify our economy, it will lead to stronger marriages."

...posted by ⊥ 6:25 AM ⊥ #

Monday, November 03, 2003

No Dumping. The AP has this story about how a defunct Ft. Myers law firm abandoned its clients' confidential files, leaving them with a former landlord. They ended up in the hands of a local television station after the landlord finally threw them away. As you'd probably guess, that is not supposed to happen.

...posted by ⊥ 5:10 PM ⊥ #

Monumental End. Well, perhaps the litigation over Alabama's Ten Commandments monument will now come to a close. Today, the United States Supreme Court denied Alabama Chief Justice Roy Moore's petition for a writ of certiorari to the Eleventh Circuit. Chief Justice Moore had appealed from this Eleventh Circuit decision, which affirmed a district court's determination that the monument violates the First Amendment's Establishment Clause. If you've never read the Eleventh Circuit's opinion in this case, it's well worth a few minutes of time to do so.

...posted by ⊥ 4:39 PM ⊥ #

Schiavo News. Today's St. Pete Times has this profile of Judge Baird, the trial judge hearing Michael Schiavo's constitutional challenge to the new law that permitted Governor Bush to order Terri's feeding tube reinserted.

Also, today's Sun-Sentinel has this story about how some folks in Tallahassee pay little attention to the constitutionality of laws they pass or enforce.

...posted by ⊥ 7:09 AM ⊥ #

Free Trade and Big Florida Industries. The Miami Herald has this report on how upcoming free trade talks in Miami may make for a shift in Florida's political winds.

...posted by ⊥ 6:46 AM ⊥ #

Workers' Comp Changes. Today's Times-Union has an in-depth look at how this year's workers' compensation reforms have directly (and intentionally) affected the construction industry. Read the story here.

...posted by ⊥ 6:36 AM ⊥ #

From Hanging Chads To Dangling Participles. Palm Beach County is considering using an Internet-based computer grading system to grade the essay portions of students' FCAT exams. Read about it in today's Sun-Sentinel.

...posted by ⊥ 6:29 AM ⊥ #

Car-Jacking Law. Today's News-Journal has this interesting story that touches on the law on car-jacking.

...posted by ⊥ 6:24 AM ⊥ #

Sunday, November 02, 2003

Shiavo News. In case you missed it, today's St. Pete Times has this story on how the new law known as Terri's Law came to be.

...posted by ⊥ 11:54 PM ⊥ #

The Price Of A Trifle. You might recall from this post that, earlier this week, Judge Polen was a bit concerned with how the judicial system attended to a case involving a $79 restitution order that the defendant would probably not have paid. Well, in this case decided Friday by the Fifth District, Judge Pleus had simply this to say about an inmate's effort to reopen a case to seek reimbursement for $7.50 in copying costs:

De minimis non curat lex.

That was Judge Pleus's entire opinion, which concurred (and concurred specially) with the decision to affirm rejection of the inmate's claim. The Latin phrase means "the law does not concern itself with trifles."

...posted by ⊥ 11:52 PM ⊥ #

Questions, questions. In this decision released Friday, the Second District certified the following question to the Supreme Court of Florida as a question of great public importance:

IF A CHILD VICTIM OF SEXUAL ABUSE TOTALLY REPUDIATES HER OUT-OF-COURT STATEMENTS AT TRIAL, AND THE PROSECUTION ADDUCES NO EYEWITNESS OR PHYSICAL EVIDENCE OF ABUSE, MUST THE TRIAL COURT GRANT A JUDGMENT OF ACQUITTAL EVEN IN THE FACE OF OTHER EVIDENCE CORROBORATING THE OUT-OF-COURT STATEMENTS AND THE DICTATES OF THE CONFRONTATION CLAUSE?

The Second District answered this question in the negative, but the low level of evidence against the defendant in this case plainly concerned the court.

...posted by ⊥ 11:45 PM ⊥ #

Clearly, This Isn't Clear. Here's one for the academics out there. When granting extraordinary relief, does the petitioner need to show that case law has already established the law to be contrary to the lower court's ruling, or can the petitioner instead show that the case law presents sufficient principles that, if added together, demonstrate the lower court's ruling to be in error? A few cases this past week dealt with this issue, though only in dissenting opinions.

First, as mentioned earlier in this post, on Wednesday Judge Canady dissented from a decision to grant a petition for a writ of certiorari because he did not find the law to be "clearly established" on the question at issue. Notably, Judge Canady expressed no disagreement with the majority's conclusion on the merits of the case.

Two decisions released Friday by the First District add an interesting twist. In this case and that one, the court held that a criminal defendant need not be informed that a guilty plea to a DUI charge may result in revocation of the defendant's driver's license because the revocation is not a direct consequence of the plea -- it is, instead, an adminstrative matter aimed at protecting the public. Based on this holding, the court granted a writ of certiorari to a circuit court sitting in its appellate capacity. Judge Allen dissented, however, on the basis that the majority's result had not been "clearly established" by the case law. In fact -- and here's the twist -- the only district court decisions on point reached the opposite result. (The majority found that the contrary district court decisions were incorrect because they ignored controlling decisions from the Florida Supreme Court.) Like Judge Canady, Judge Allen expressed no disagreement with the majority's result on the merits of the case.

One more noteworthy aspect to the First DCA cases: the two judges comprising the majority in each case could not agree on whether to certify conflict with the contrary district court decisions, since those decisions apparently ignored controlling supreme court authorities, so no conflict was certified.

...posted by ⊥ 11:29 PM ⊥ #

Second District: NICA Conflict. In this case, the Second District held that adminstrative proceedings under the Florida Birth-Related Neurological Injury Compensation Act (NICA) may not concern whether a health care provider provided the notice required by the statute or whether any such notice triggered the tort immunities provided by that act. The court acknowledged that this decision squarely conflicts with decisions by the Third, Fourth, and Fifth Districts.

...posted by ⊥ 10:32 PM ⊥ #

First District: A Win's A Win? It's one thing for an appellate court to explain that it will not consider an issue that was not preserved in the trial court, but is it another thing altogether for the court to explain that it would have reached a different result had an unpreserved argument been preserved, as in this case from the First District?

...posted by ⊥ 10:04 PM ⊥ #

Good Weekend. Well, I took the weekend to tend to non-blog duties, but before the new week begins, there are a few legal items left to note from last week. Two of them show some interesting parallels in the thoughts of some of our appellate judges.

...posted by ⊥ 9:53 PM ⊥ #