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Wednesday, December 31, 2003
Fourth District: Tobacco Class Action. Have you heard the fraud theory being asserted in various suits against the tobacco industry that, in short, alleges that the "light" cigarette concept is a sham? You can read about it in this New Year's Eve-newsworthy decision from the Fourth District. The decision perhaps renders the theory a little less attractive to the plaintiffs' bar: in a class action advancing this theory, the appellate court held that common issues will not predominate and thus the class must be decertified.

Happy End, Happy Beginning. Light posting today, at most, depending on whether any terribly interesting cases are released. Since that's not likely, I'll take a moment now to wish everyone a great end to 2003 and a great start to 2004. And I thank everyone for stopping by this little corner of the Blogosphere.

Tuesday, December 30, 2003
Safer Roads. What Florida driver has not experienced the frustration of watching -- or trying to avoid -- an elderly driver on Florida's roads who by all appearances cannot see a thing? Perhaps those frustrations will be a bit less frequent after January 1, when a new Florida law takes effect requiring drivers 80 years old or older to take a vision test each time they renew their drivers license (which could be as infrequent as every six years). Today's Sun-Sentinel has a story on the new law here. Among other interesting tidbits, the story states that there are more than a half million Floridians over 80 who have a drivers license. That explains a lot.

Ewww. If the title "Cadaver Lawsuit Widens" captures your attention, then you will probably be fascinated by this story in today's Miami Herald about a series of lawsuits against Boca Raton's Lynn University and others. The suits complain about the alleged unauthorized use of recently deceased bodies in the school's now former mortuary program. The trial judge in one of the cases has just permitted the plaintiffs to seek punitive damages. Recall that, in Florida, a lawsuit cannot seek punitive damages until a judge rules that the plaintiff has at least some evidence to show that such damages are warranted.

Tate Update. Speaking of the Lionel Tate case, the Miami Herald has this update on the likelihood -- nay, inevitability -- that he will take the pending plea offer from the state.

Juvenile Justice. Some years ago, I read a fascinating article on how the last few centuries have produced a pattern of gambling regulation that consistently progresses between the extremes of prohibition and allowance. I would like to see a similar study that traces the nation's sentiments about treating juvenile criminals as adults. I suspect the results may look similar to the cyclical pattern seen with gambling. This all comes to mind because of this story in today's Tallahassee Democrat about a new legislative proposal, stemming from the Lionel Tate case, to keep minors out of Florida's adult prison system.

This Is What They Don't Want You To See. That pretty much sums up this story in today's Bradenton Herald about the evidence that the defense wishes to exclude in a murder trial set to start Monday.

Monday, December 29, 2003
Schiavo News. The AP has this year-end wrap up on how the Terri Schiavo case caught the nation's attention in 2003. The story is a nice summary, though it contains at least one tiny error: it indicates that courts have "repeatedly affirmed Michael Schiavo's right to remove the feeding tube" from Terri, but that is not what happened here. A court decided, after a full trial, that Terri would not wish to continue receiving the feeding tube under her current conditions, and courts have repeatedly affirmed that ruling. Michael did not make the decision. He just advocated for the decision he thought the court should reach.

A second possible inaccuracy lies in the statement, "Circuit Judge W. Douglas Baird has said in open court that he considers the law unconstitutional." Now, I have not been in court and cannot say affirmatively that I know Judge Baird did not make such a statement, but I assume that the story is referring to the same comments that were the subject of Governor Bush's unsuccessful effort in this case to have Judge Baird disqualified. The comments at issue there did not indicate that the judge considered the law unconstitutional -- they reflected the judge's belief that the law at issue infringed upon Terri's right to privacy.

Those of you who are not lawyers may think this is simply classic lawyer-like pickiness over words, but there is a substantial difference in the two statements. Just because a law infringes, or invades, or intrudes upon a particular constitutional right does not mean that the law is unconstitutional. The ultimate question is whether the law can do so in keeping with the constitutional scheme, and for each right, the case law has typically developed a test or series of tests to determine if the intrusion is constitutionally permissible. A simple example might be a law that requires any group of people to obtain a permit before they can protest in a public place -- there are many such laws, and all of them intrude on the right to free speech, but most if not all of them are entirely constitutional. They are permissible infringements because they do no more than provide reasonable regulations on the time, place, and manner of speech.

Back to Judge Baird, I do not believe the judge has stated whether he believes the law is constitutional. I believe that, thus far, he has only said that the law intrudes upon Terri's right to privacy, and with regard to that right, the issue will then be whether such an intrusion is permissible. The Governor has argued that it is; Michael Schiavo has argued that it is not. We will just have to wait and see who wins, both now and in the appellate proceedings that will follow.

Lionel Tate News. The weekend began with news that Tate has again been offered the same three-year plea deal he turned down before his trial. Today, prosecutors will ask the Fourth District to reconsider its decision ordering a new trial for the youngster. The AP has this story on these events. You can also read the appellate court's decision in the case here.

Indian Tribe Stops Traffic. Literally. The Miccosukee Indians have been setting up checkpoints along a county road that runs past a tribe reservation, and some locals who are getting stopped while traveling the road are a bit upset. Read about it in this story in today's Sun-Sentinel.

Good Samaritan Twist. The University of Miami medical school, a private school, is looking to the Legislature for the same medical malpractice immunity given to Jackson Memorial Hospital, a Miami public hospital, when it comes to treating nonpaying and Medicaid patients. UM has 700 doctors who work at Jackson. Plaintiffs' lawyers say the request is discriminatory. Read about it all here in today's Miami Herald.

No, Not That Light… The Palm Beach Post has this story on this year's turtle troubles in Palm Beach County. Development along the shoreline continues to disorient the little critters.

Out of Sight, But Coming Back. Today's Tallahassee Democrat has this story about the medical malpractice debate and how it will be returning to the stage in 2004.

Friday, December 26, 2003
Constitutional Amendment News. The AP has a series of stories this morning on proposed amendments to Florida's Constitution. Recall that, under Article XI of Florida's constitution, constitutional amendments may be proposed by citizens, by the Legislature, or by a constitututional revision commission, and proposed amendments become part of the state's foundational law if approved by more than 50 percent of voters in a statewide general election.

First up, we have this recap of proposed amendments since 1978 that made the ballot. The list is divided into proposals based on citizen initiatives and proposals authored by the Legislature.

Next, we have this list of initiatives that are "active" heading into the election of 2004. Some notables include "Yari-Professor Fun-Der-Full Lawrence's Legalization of Marijuana Committee," "Florida's Amendment Requiring Legislators to Teach in Their Florida School District Four Days a Year," and "Tax Foreclosure on Homesteads of Elderly Prohibited."

Finally, there is this story on how some lawmakers are working toward limiting citizens' ability to get proposed amendments on the ballot. Their argument is that the process does not favor populist efforts to right wrongs; rather, the process favors whatever special interest group can afford the costs of gathering signatures and mounting an effective public relations campaign. Hmmm. I wonder what these legislators could be thinking about. Maybe the pregnant pigs protection provision approved by voters in 2002? Or the commercial fishing net ban approved in 1994? Or the high speed rail provision approved in 2000? Or the school class size provision approved in 2002? …

Baker Act. Today's Tampa Tribune has this story about legislators' interest in how Florida's Baker Act is being used to commit children.

Surcharge Recharge? Today's Palm Beach Post has this interesting story about $10 million in refunds obtained in a class action suit against the city of Port St. Lucie for improper stormwater surcharges between 1993 and 1998. According to the story, typical residents who paid the surcharge all five years are receiving $244 and the class's lawyer is receiving $4.2 million. But that's not the interesting part. The interesting part is that the city is making plans to reinstate the stormwater charges retroactively.

Wednesday, December 24, 2003
Merry Christmas! To those who celebrate the Christmas season, I wish you a very merry Christmas.

I also thank everyone for stopping by the Abstract Appeal web log, and I wish you all a joyous holiday season.

Third District: Hospital Liability. In this case, the Third District joined two of its sister districts in holding that a hospital has an implied statutory duty to ensure that its physicians meet the minimum financial responsibility requirements imposed by Florida law. Judge Green dissented on grounds that the majority and the court's sister districts have created a supposedly statutory cause of action by judicial fiat, without the necessary showing of legislative intent.

There Ought To Be A Law… That's all I can say when I read this case.

First District: Homestead Law. Is a homestead located outside the state's municipalities limited to the residence of the owner or the owner's family? In this case, the First District today said no.

Questions, questions. In this case, the First District today certified the following to the Supreme Court of Florida as a question of great public importance:
In addition to being boggled over burglary, the First District also certified this question as one of great public importance:
The latter case is available here, and that is twice in the last week that the First District certified this particular issue. (For prior certifications of this question, see this earlier Abstract Appeal post.)

Florida's First. First to have a faith-based prison, that is. Governor Bush today celebrated the facility's opening at Lawtey Correctional Institution. Read about it in this press release from the Governor.

Abstract Welcome! I have my work cut out for me during the extended Christmas weekend. I need to update parts of this site to accomodate additional bloggers, such as the prior poster, Mr. Carroll. Hunter's a young lawyer in our firm's St. Pete office, and he's agreed to chime in on occasion. Should be fun for all.

Guest Blogger. As a holiday present to Matt, I will from time to time assist him in posting. You may find me here. But no substantive post from me today. Happy Holidays to all.

Schiavo News. Despite reports that Governor Bush filed another appeal Monday and triggered an automatic stay of the trial court proceedings, the hearing scheduled for yesterday before Judge Baird apparently went forward. Assuming the reports about a second appeal were correct, Judge Baird perhaps entered an order vacating the automatic stay and allowing the hearing to proceed. Perhaps. The news reports are not discussing this aspect of the story.

At any rate, we know that Judge Baird heard arguments from the Governor's and Michael Schiavo's attorneys yesterday, and at the conclusion of the hearing the judge announced that he is ready to rule but will wait for the Second District to resolve the Governor's pending appeals. You can read the detailed local coverage in today's St. Pete Times, Tampa Tribune, and Orlando Sentinel. The reports quote the Governor's attorney as expecting Judge Baird to rule in Michael Schiavo's favor and declare the law at issue unconstitutional. The Governor's attorney also indicated that the judge has effectively denied the Governor's request that another trial be held, this time with a jury, to determine what Terri's wishes would be.

I note that the Tribune story states, by way of background, that Terri Schiavo "has been in what most doctors term a persistent vegetative state since February 1990, when she suffered unexplained heart failure." In this post from yesterday, I commented on this subject and provided a link to this column, in which the attorney who represented Michael and Terri in their medical malpractice case explained what caused Terri's heart failure.

Palm Beach Nativity News. If you are following this story, Palm Beach officials met yesterday and voted to allow a Nativity scene to be set up in a park corner, away from a more prominently displayed Christmas tree and lighted menorah. The residents requesting the Nativity scene declined the invitation because of the offered location. Read more about it here in today's Sun-Sentinel.

May I Have A DNA Sample? Amazingly, that's the question Miami police officers have asked over 1000 men on the streets of Miami in hopes of finding a serial rapist whose DNA has been recovered from his victims. More amazingly, many of the requests are being obliged. The Miami Herald has the story here. Notably, all donated DNA winds up in a state law enforcement database, along with each person's identifying information. Wow.

Rush News. A Palm Beach County circuit judge yesterday rejected Rush Limbaugh's efforts to invoke his privacy rights to keep his medical records out of the hands of local state prosecutors, according to this story in today's Palm Beach Post. The story details Rush's on-air comments yesterday that effectively called the investigation a politically motivated fishing expedition by the local state attorney, a Democrat.

Note that Rush also apparently commented that he will appeal, if necessary, to "a U.S. Circuit Court of Appeals." The current proceeding, however, is in state court, not federal court, and it is difficult to imagine a scenario that would land the merits of Rush's privacy challenge in a federal circuit court. On the other hand, as a political matter, Rush is probably getting his point across.

Eleventh Circuit: Collateral Orders. Weighing in on the circuit-splitting question of whether a prisoner seeking relief under 28 U.S.C. § 2255 can immediately appeal an order denying bond, the Eleventh Circuit yesterday released this opinion answering the question in the affirmative. Appellate lawyers may wish to note that the court based its decision on the collateral order doctrine.

Eleventh Circuit: Decertification. What's a holiday season without some new class action case law? Yesterday, the Eleventh Circuit released this decision on two procedural aspects of class decertification. First, the court held that class members must be given timely notification of any decertification and that the burden to do so is on the class representative and class counsel, not the trial judge. Second, the appellate court held that, under the circumstances of the case, which involved a class representative that declared bankruptcy and thus became an inadequate representative, the trial court erred in decertifying the class without first giving members an opportunity to intervene as the class representative.

Tuesday, December 23, 2003
More from the Disenfranchisement Case… I wondered aloud yesterday about whether the Eleventh Circuit's decision in the felon disenfranchisement case could have any effect on the current litigation involving the Florida Constitution's "no-aid" provision. Here is a bit more detail about what comes to mind, beginning with some background on the recent federal decision.

The Eleventh Circuit case concerns Florida's felon disenfranchisement clause, which in essence blocks convicted felons from voting in Florida elections unless their civil rights are restored. That provision faces a challenge that it discriminates against blacks, but unlike the typical case alleging that a law discriminates on the basis of race, this case involves a constitutional provision, and one that was enacted numerous times. Florida's 1838 Constitution empowered the Legislature to disenfranchise those convicted of bribery, perjury, or other infamous crimes, and it arguably required the Legislature to deny the suffrage right to those convicted of bribery, perjury, forgery, or other high crimes or misdemeanors. The post-Civil War 1868 Constitution included a different version of the provision that expanded the denial concept to encompass all felonies. When the Constitution was rewritten in 1968, the 1868 version was carried over, albeit in a rewritten form.

The plaintiffs in the Eleventh Circuit case recognize that the 1838 provision cannot have been prompted by discriminatory intent -- at the time, black persons could not vote. The plaintiffs thus focus their arguments on the supposed discriminatory impetus behind the 1868 version; the state, meanwhile, focuses on the 1968 rewrite, arguing that whatever motivated the former provisions is irrelevant given the current provision's later adoption in a new foundational document.

After examining the law in this area, the Eleventh Circuit resolved how the burdens should be allocated among the parties. The court held that if an impermissible discriminatory intent is found to have been a motivating factor behind the 1868 version, and the state cannot prove that the provision would have been enacted anyway, absent that intent, then the state then has the burden of showing that the provision was knowingly and deliberately reenacted in 1968 for non-discriminatory reasons.

That's a significant set of potential burdens for the state to carry, and the decision is extremely newsworthy for the court's analysis in this regard, but what really interests me here is thinking about this burden-shifting process in the context of Florida's no-aid provision. That provision has its roots in an anti-Catholic bias that pervaded the nation's political leaders in the late nineteenth century. The no-aid provision states:

No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.
Last year, a circuit judge in Tallahassee relied on this language to declare unconstitutional Florida's Opportunity Scholarship Program, the voucher program for children in failing schools. The trial court determined that, to the extent the OSP permits parents to use vouchers to send their children to religious schools, the program violates the no-aid provision.

The state has appealed that decision to the First District Court of Appeal, which has heard oral arguments in the case but not yet issued an opinion. The state argues that the trial judge's interpretation of the no-aid provision requires Florida to discriminate against religious institutions with respect to what are otherwise religiously neutral programs. The state asserts that such discrimination could well violate the religious freedom and equal protection principles of the federal constitution and that, to avoid conflict with the federal constitution, the no-aid provision should be read the same as the First Amendment's Establishment Clause. That clause does not prevent a government program from including religious institutions so long as the program is not actually intended to promote religious beliefs and the program's primary effect is not the promotion of such beliefs. The plaintiffs in the case argue that the provision should be read to mean that no state monies should ever make their way to religious schools, as the trial judge held.

Now, that's the basic legal outline of the school voucher challenge. But there's more. Scattered throughout the briefing in the case are references to the no-aid provision's origin. To my knowledge, authorities on the subject all agree that Florida's no-aid provision was part of the late nineteenth century wave of so-called "Blaine amendments." James Blaine was a Speaker of the U.S. House of Representatives, and, to make a long story short, railing against the Catholic Church was a plank in his political platform -- he authored an unsuccessful proposed amendment to the federal constitution to prevent public funds from being used in Catholic schools, and his efforts promoted a successful tide of similar amendments to state constitutions across the country, including Florida's.

Unlike the felon disenfranchisement case, though, in the no-aid provision challenge, it is not the state that is disavowing the contentious provision's pedigree -- the plaintiffs are doing so. The plaintiffs are pointing to the 1968 Constitution, which carried over the no-aid provision with slight changes in language, as having cleansed whatever discriminatory taint accompanied the original enactment. Keep in mind, there is no equal protection or similar challenge at stake in this case -- it's a challenge to the OSP based on the no-aid provision -- but the state has raised the specter of such federal constitutional concerns with the hope that the court will consider them when attempting to decide how to interpret Florida's provision. In the end, I cannot help but wonder how the burdens discussed by the Eleventh Circuit in the felon disenfranchisement case would operate if the no-aid provision were to undergo a similar equal protection challenge, either informally in the current case or, if the trial court's interpretation of that provision were upheld, in a subsequent case. I will not speculate on the answers to such questions, but I will say that I find the whole situation very interesting.

By the way, I glossed over the notion that the Blaine amendments were born of anti-Catholic bigotry. Those interested in the subject -- which, from a legal or historical perspective, is purely fascinating -- might wish to check out the www.blaineamendments.org web site. It offers a discussion of Blaine and his legacy, including links to legal cases and academic works that discuss or interpret the Blaine amendments.

Schiavo News. Much is going on, though there are not many details reported about it all. Today's Tampa Tribune offers some insights in this story. Apparently, Governor Bush has recently made a series of moves. He has sent letters to the Sixth Circuit's chief judge and to Jay Wolfson, the court-appointed guardian ad litem whose appointment expired last week, asking that Wolfson be reappointed in the case. The letters apparently raise questions that the Governor would like answered, including questions about whether some sort of physical abuse led to Terri Schiavo's current condition and whether Michael Schiavo acknowledges any conflict of interest in his serving as her guardian.

The tail end of the story also mentions that Governor Bush yesterday filed some sort of appeal in the case and that he is taking the position that this latest appeal stays the case before Judge Baird, preventing today's scheduled hearing on the constitutionality of the new law that permitted the Governor to order Terri's feeding tube reinserted. The story is unclear about what order the Governor has now appealed.

Interestingly, the story indicates that the Governor's letters discuss the possiblity that abuse led to Terri's current condition and that a medical malpractice settlement award may have created a conflict of interest for Michael Schiavo. There is no mention, though, of one of the ways in which these two subjects are linked -- something that for some reason seems not to have hit the radar of many who are discussing this case: a jury awarded Terri and Michael damages in the malpractice case after finding that Terri had bulimia, that her bulimia caused her heart failure and brain damage, and that her doctors were negligent in failing to diagnose Terri's bulimic condition. For more on this part of the Schiavo story, see this October 2003 column from the attorney who represented Terri and Michael Schiavo in the medical malpractice case.

Rush News. Rush Limbaugh is attempting to block prosecutors from accessing his private medical records. The Palm Beach Post has the story here, including a discussion of how prosecutors are attempting to build a case that Limbaugh was "doctor-shopping," while Limbaugh's attorneys question how one can "doctor shop" among doctors who practice together.

Nativity News. 'Tis the season. On Friday, the federal judge hearing the suit of a Palm Beach woman whose request to include a nativity scene in the town's holiday display went unanswered for three months ordered the town council to make a decision by noon on Christmas Eve. So the council meets today. Read about it all in this story in today's Palm Beach Post.

Voodoo No Do So Well? Remember the Miami trial of J.C. Elso, at which powder used in a Santeria ritual appeared last week all over the courtroom? (If not, see this post.) Yesterday, Elso was convicted of money laundering and conspiracy charges. Read about it all (including other odd events in the case) in this story from today's Miami Herald.

OSP News. The Sun-Sentinel has this story today on academic progress made by students using Opportunity Scholarship Program vouchers to attend private schools. The OSP provides vouchers to students in Florida's "failing" public schools and permits the students' parents to chose another local school at which to spend the scholarship money.

More Mary. Today's Bradenton Herald has this updated story on how a Sarasota homeowner's association has ordered a resident to remove a 3-foot Virgin Mary statue from her front yard.

Monday, December 22, 2003
Virgin Mary Statue. The homeowner's association for a Sarasota development has ordered a resident to remove a 3-foot Virgin Mary statue or face fines. Read about it in this story from the Sarasota Herald-Tribune.

Overdose Suit. The AP has this story about a mother's lawsuit against numerous persons who allegedly caused her daughter's death. The daughter died of a fatal dose of Benadryl given her by a babysitter, allegedly to keep the infant quiet, and the babysitter has since been sentenced to serve eight years in prison for manslaughter. The mother is now suing not only the sitter but the drug's maker, the pharmacy that sold the medicine, the maker of a generic version of the drug, the state Department of Children and Families, and others.

Voucher Thoughts. The St. Pete Times today released a lengthy editorial offering recommendations for adding accountability standards to the state's various school voucher programs. You can read it here.

Pawn Shop Perks? Howard Troxler, columnist for the St. Pete Times, has this interesting piece about the steps one needs to take to recover stolen goods from a pawn shop. Mr. Troxler thinks the process is a bit impractical.

Eleventh Circuit: Disenfranchisement of Felons. While the weekend may have been slow on the legal news front, this decision released Friday by the Eleventh Circuit received some well deserved attention. The court reversed a summary judgment entered against a group of plaintiffs on their claims that the felon disenfranchisement clause in Florida's Constitution violates the federal Equal Protection Clause and the federal Voting Rights Act because it was enacted to, and does, discriminate against blacks. The court remanded the case for further proceedings.

This is a truly fascinating case, and anyone deeply interested in Florida law and its historical roots is well advised to examine both the majority opinion and the dissent by Judge Kravitch. The different analyses employed by these two opinions deserve some extensive treatment -- something I will try to do tonight or tomorrow, notwithstanding the week's Christmas busyness. Also, and while I haven't been able to give it much thought yet, I'm particularly interested in whether the majority's analysis could have any effect on a challenge currently pending in Florida's state courts involving the "no aid" provision in Florida's Constitution -- the school voucher case. I'll mull that over today and offer some thoughts later.

Merry Week! For everyone, I hope.

Friday, December 19, 2003
Fifth District: Failure to Prosecute. If no record activity occurs for over one year in a case in which a motion to dismiss is pending but never set for a hearing, can the trial judge dismiss the case for lack of prosecution? A First District decision from last year said no, but today the Fifth District disagreed in this case. Conflict certified.

Fifth District: Ouch! If I ever have to have an appeal dismissed for lack of jurisdiction, I could only dream of getting a concurring opinion that carried as much punch as Judge Pleus's concurring opinion does in this case. The Fifth District technically did no more than dismiss the appeal, but Judge Pleus went to bat for the appellant, calling the appellee's conduct "extortionate" throughout a 7-page concurring opinion and sending an awfully strong message to the appellee.

Fifth District: Sovereign Immunity. This case can serve as a good reminder about a simple rule: the state is not liable when someone is injured on state property by an open and obvious condition. In this case, a girl on her way to school was walking along a street when she was struck by a vehicle. In her negligence suit, she claimed that the county should have installed sidewalks along the street. The Fifth District affirmed a summary judgment in the county's favor.

Eleventh Circuit: Service of Process. In an excellent example of permitting the rule of law to prevail, the Eleventh Circuit yesterday released this decision affirming the dismissal of a class action antitrust suit against OPEC. The dismissal was based on the plaintiff's failure to serve OPEC in accordance with the Federal Rules of Civil Procedure. Why bring up the rule of law? Well, despite the plaintiff's commonsensical argument that a defendant should not be able to accept or ignore service at its whim, the court followed the service requirements to the letter, even though the validity of the plaintiff's service efforts came down to whether OPEC wanted to accept the papers it received as service. Not surprisingly, OPEC did not wish to be served in this particular lawsuit. Indeed, prior to the dismissal, the trial court had entered a default judgment against OPEC that included an injuction against price-fixing and a finding that OPEC's conduct resulted in an adverse impact on the U.S. economy to the tune of $80-100 million per day. The case is a good read for anyone interested in serving foreign persons.

Trivia on Holiday. The weekly Friday Florida Law Trivia question is on a holiday of its own. It will resume after the holidays, perhaps with a guest blogger or two authoring some of the questions. Stay tuned.

Supreme Court: New Duty For Utilities. The duty to maintain street lights is a duty held by many utilities. But is it a duty that protects the interests of those who might be injured by the darkness caused when street lights no longer function? Yesterday, in a case that may be analyzed nationally for its policy considerations and implications, the Supreme Court of Florida held that a utility that unreasonably fails to maintain a street light in working order has breached a duty the company owes to any person who is injured due to the resulting darkness. The decision, available here, involved a young man struck by a car in the darkness of an inoperative street light. The court recognized that it was departing from prior Florida law and the historic national view of the law in this area, but the court concluded that the modern understanding of the "undertaker's doctrine" -- the principle that one who undertakes to perform a service must do so carefully and not put others at risk for undue harm -- compelled the conclusion the court reached.

Justice Cantero authored a vigorous dissent that criticized the majority for expanding tort law as it applies to utilities farther than any other state has ever done and in a way that other states have consistently rejected. He disagreed with the majority's analysis as applied to utilities and cautioned that the majority's views could lead to far-reaching, unforeseen results in other areas. Justice Wells agreed.

This case is fascinating, and if I had more time this morning I'd love to muse about the philosophical questions it poses. Perhaps another day.

Supreme Court: Judges Needed. Yesterday, the Supreme Court of Florida released its annual certification of need for additional judges. The short of it for the appellate courts is that the court requested two additional judges for the Second District and one additional judge each for the Fourth and Fifth Districts. The entire order, which could not be any more sincere about Florida's judicial needs or sympathetic to the Legislature's difficulties in apportioning funds, can be found here.

Third District: 5 Minutes Not Enough. For the mathematically minded, this decision from the Third District might be reduced to a simple formula: two-day trial + closing argument limited to five minutes = reversible error.

Third District: Rare Reversal. It's not every day that you see a bench trial decision reversed not for a new trial but for entry of judgment in the appellant's favor. But that's what happened in this case from the Third District. The defendant towing company had auctioned the plaintiff's $80,000+ Porsche for $1,300, and the plaintiff sued for conversion. The trial court held a bench trial and found in the defendant's favor. On appeal, the Third District held that a conversion clearly took place, and the court ordered that judgment be entered in the plaintiff's favor.

Third District: Castle Doctrine. I found this new case interesting. A trial court ruled that a defendant in a murder trial could utilize the "castle doctrine" -- the common law rule holding that while a person ordinarily has a duty to retreat before using deadly force for protection, there is no duty to retreat from one's home (i.e., one's castle). In the case, a shooting took place not at the defendant's home but at the apartment of a woman with whom the defendant had just had relations, in the biblical sense. The trial court found the defendant entitled to use the castle doctrine as a defense: "I expect home to be where you hang your hat and in this case, as I understand it, the defendant was doing more than hanging his hat; he was hanging his pants. So, I think he has the right to the same kind of protection in that home." The Third District disagreed, holding that a temporary guest or visitor, such as the defendant, is not protected by the castle doctrine.

Second District: Spoliation. If you're an avid follower of Florida's spoliation case law, check out the latest decision here. In the case, the Second District reversed an order that sanctioned a plaintiff with an allegedly defective knee implant for allowing the doctor who repaired the knee to discard the original implant materials.

Second District: NICA Conflict. The Second District continues to certify conflict with most of the other district courts of appeal over whether an administrative law judge in a NICA case can determine whether NICA's statutory notice requirement were satisfied. The latest decision is available here. The Second District's earlier decision on this subject is available here.

Questions, questions. The First District has, again, certified the following to the Supreme Court of Florida as a question of great public importance:

The district court's decision can be found here. To read an earlier case with a substantive discussion on the issue, look here.

First District: No Rule, No Challenge.The Division of Administrative Hearings lacks jurisdiction to hear a challenge to a repealed rule. Makes sense. For more, see the First District's decision in this case.

Thursday, December 18, 2003
Schiavo News. Governor Bush asked Judge Baird to delay the hearing previously set for Friday on the constitutionality of the new law that permitted the Governor to order Terri Schiavo's feeding tube reinserted. Yesterday, according to this story in the St. Pete Times, Judge Baird granted a brief extension -- until this coming Tuesday -- to accommodate the Governor's attorney's schedule, but the judge denied a request for a longer extension that would allow the Governor more time to investigate the case.

In non-legal news, this story from the Times explains that the Hospice where Terri has been staying is undergoing renovations, so she has been moved to another facility. Note that this story does not contain a line found at the end of the story on the judge's ruling: a line indicating that, according to the Schindlers, at her new location, Terri is more active and responsive than she has been since her feeding tube was removed and reinserted in October.

Dealing Trouble. Michael Mayo, a columnist with the Sun-Sentinel, has this opinion piece on Lionel Tate and how the youngster should have taken a plea deal for a sentence that would already have him out of state custody. Perhaps Tate will get another chance.

Nativity Scene Suit. For the latest on the pending suit over Palm Beach's refusal to include a nativity scene in a public holiday display, check out this story in today's Sun-Sentinel.

Dust Aside… You may recall the money-laundering trial mentioned here yesterday at which voodoo dust keeps appearing in the courtroom. Today's Miami Herald has this story on the trial itself, which is against a South Florida attorney.

Constitutional Concerns. Governor Bush would like voters to repeal the class-size constitutional amendment they approved last year, as reported in this story in today's Times-Union. Meanwhile, Johnnie Byrd appears less than optimistic about the Governor's thoughts of repealing the high speed rail amendment, according to this story from the AP. Voters approved that amendment in 2000.

Wednesday, December 17, 2003
First District: Work Product. Yesterday, the First District released this decision offering some good, specific information on the showing that must be made to discover another party's work product.

Med-mal Suit. Today's Tampa Tribune has this story on how a lawsuit against a doctor and a Tampa hospital claims the doctor had too little experience in using the robotic surgery tool that wound up killing a patient during surgery.

Menorah Mess. Yesterday, Leon County changed its mind about funding, or even allowing, a menorah on county property, according to this story in today's Tallahassee Democrat. Compare that to the situation mentioned yesterday in this post -- Palm Beach is displaying a lighted menorah, which the town sees as purely secular, but not a nativity scene.

Someone Did The Voodoo That… At a Miami money-laundering trial, someone keeps leaving voodoo dust -- a Santeria ritual to bring good fortune -- all over the courtroom. Read about it here in today's Miami Herald.

Driving Tests. Second or third-time drunk driving offenders will soon need to pass a breathalyzer test in order to start their vehicles. Read about the new administrative rule requiring the breath-testing devices here, in today's Sun-Sentinel.

School Suspensions. The Palm Beach Post has this story on how 100 schools have been suspended from participation in the state's various school voucher programs. The schools apparently failed to meet a compliance deadline.

More Class Size Problems. The Daytona News-Journal has this report on how Volusia and Flagler schools have been unable to meet the requirements of the new class-size constitutional amendment. The Sun-Sentinel has this similar report on Palm Beach and Miami-Dade schools.

Tuesday, December 16, 2003
More on Boies. A couple of posts ago, I mentioned the ethics complaint filed by The Florida Bar against David Boies. The folks at Law.com now have a rather extensive story on the matter.

Dashing Through The Dockets. 'Tis the season to begin searching the dockets of Florida's district courts of appeal. Just visit this new page, where the dockets of the First, Second, Third, and Fourth Districts are available for perusal. Access to the Fifth District's docket is apparently "coming soon," so to speak. Still, this is a marvelous, convenient site that should eventually save the DCA clerks' offices a great number of telephone calls. Once again, Florida's judiciary proves that it is a national leader in giving the public online access to information about the judicial branch and its cases.

Bar Complaint. The Florida Bar has filed a complaint against famed attorney David Boies for allegedly violating Florida's ethical rules relating to providing clients with funds and supervising other attorneys. The complaint, which the Florida Supreme Court has referred to a referee for findings of fact, is available here. Boies is apparently not a member of The Florida Bar but has appeared in Florida courts pro hac vice, such as when he represented Al Gore in the 2000 election cases.

Class Size Woes. The St. Pete Times has this report on the class-size constitutional amendment approved by Florida voters last year and how nearly half of the state's school districts have failed to meet the first year goals required by the amendment. Expect this topic to keep making news…

More on Menorahs and Trees… Still interested in the subject of religious holiday displays? Tallahassee is right there with Palm Beach when it comes to a little controversy over this year's displays. Read about it in this story in today's Tallahassee Democrat.

Signs of the Time. The Palm Beach Post has this interesting story about two Palm Beach residents who are suing their town to require it to display a nativity scene. The story has a few interesting angles, like that the town already has a display that includes three Christmas trees and two menorahs. But the trees are unadorned, and the menorahs will be lit, so the pair claims discrimination against Christians. The town, on the other hand, claims that the trees and the menorahs are purely secular symbols. Also, the pair filed their suit yesterday, and they seek an injunction to allow a nativity scene to be added before Christmas.

Private Medicine. Ever notice that privacy and the criminal justice system do not always mix very well? Check out this story from today's Sun-Sentinel, which discusses Rush Limbaugh's efforts to prevent Palm Beach prosecutors from investigating his medical records. The story seems to suggest that Limbaugh's real concern is with the records winding up in the hands of the media, which will likely publish every detail.

Rapid Recidivist. The Bradenton Herald today has this amusing story of a Seminole County man who was arrested for auto theft and driving on a stolen license only four days after he was released from a prison sentence for the same charges. It seems the man, whose drivers license had been permanently revoked, returned to the sheriff's office to claim his personal property by driving a car that was stolen the day of his release.

Monday, December 15, 2003
Schiavo News. This weekend, the St. Pete Times ran this interesting article on some legislative proposals to make it more difficult to withhold life-prolonging procedures. The article is well done, though it omits mention of any potential for conflict between the constitutional and statutory rights to refuse medical treatment.

Restoring Rights. Today's Tallahassee Democrat has this story on the difficulties facing Florida felons who wish to have their voting rights restored.

$18 Million. That's the amount a Pensacola jury awarded a man Friday on his claim that the Pensacola News-Journal portrayed him in the false light of having murdered his wife. Equally interestingly, though, the jury could not reach a decision on the punitive damages claim, and the trial court declared a mistrial as to that single issue. Read about it here in this story from today's Bradenton Herald.

Fourth District: Church/State Relations. There is little more fascinating to this blogger than the legal concepts that govern the interrelation of church and state. Some of those concepts are controversial. Some are unsettled. Some, however, are rather well established, such as the principle relied upon by the Fourth District to grant a writ of prohibition in this case. The district court prohibited the trial court from continuing to exercise jurisdiction over a minister's claim that a church negligently failed to follow its own procedures when dealing with allegations of improper conduct by the minister. Courts in this country do not involve themselves in such ecclesiastic matters.

Questions, questions. This decision released Friday by the Fifth District furthers a conflict between that court and the Fourth District over whether a parent can constitutionally be required to come forward with evidence in his or her favor in a termination of parental rights proceeding where the state can show egregious abuse or neglect of another child. The Fifth District continues to find such a burden constitutional. (The Fourth District disagreed in this decision.) The Fifth District also certified the following to the Supreme Court of Florida as questions of great public importance:


Also, if this area interests you, be sure to read Chief Judge Sawaya's special concurrence in Friday's Fifth District decision. Judge Sawaya explains his very interesting view that the decisions rendered thus far in this area by the Fourth and Fifth Districts are incorrect in their reasoning, their result, or both.

First District: Merger by Judgment. There is a basic principle that is often discussed in the appellate context but not often set forth in case law: the notion that interlocutory orders and decisions all merge into the final judgment. Fortunately, the First District made this pithy point in this decision released Friday.

Fourth District: Sexual Offender Statute. The Fourth District has now joined two other district courts in holding Florida's sexual offender statute does not violate a defendant's procedural due process and privacy rights.

Fourth District: State Insurance Benefits. Ever wondered if or how you could challenge a state health insurance agency's decisions about what medical expenses to cover or not cover? This case from the Fourth District will give you some ideas, but it will also show how difficult such challenges are to make.

Fourth District: Employment. If you are involved in employment law, then this decision from the Fourth District may be of interest to you. It's chock full of interesting employment law analyses concerning a challenge to an employment decision by a special taxing district, the Health Care District of Palm Beach County.

Questions, questions. The Second District in this case certified the following question to the Florida Supreme Court concerning Florida's Jimmy Ryce Act:

You may recall that the Second District certified the same question earlier in this case and that the Fourth District did so as well in this case.

Second District: Arbitration. Section 44.103 permits a party to elect a trial de novo following non-binding arbitration, but can that election include only the liability portion of a claim, leaving the damages decision in place if needed? In this case, the Second District said no. While individual claims may be elected to be tried or not tried in a trial de novo, the liability and damages issues relating to a single claim cannot be severed.

Hello Again. The posting break over the weekend was unexpected, but I've made my way back to the blog. Time to catch up on some cases from last week that deserve a little attention.

Friday, December 12, 2003
Conversion Complaint. A 2002 Jews for Jesus newsletter reportedly contained an account of a Delray Beach woman's conversion to the organization's beliefs -- a story written by the woman's stepson. She says the story was not true and is now suing the group. Read about it in this story from the AP.

Friday Florida Trivia Answer. When the Legislature created the Fifth District Court of Appeal in 1979, it authorized any judge then sitting on the First, Second, or Fourth Districts to become a judge of the Fifth. Two judges from the Fourth took the offer -- Judge James C. Dauksch and Judge Spencer C. Cross. Judge Dauksch remained on the Fifth District for over two decades. Judge Cross left the court after only a few months.

For a bit more detailed information on this history, check out the Fifth District's history page and the administrative order published at 374 So. 2d 972 (Fla. 1979).

Friday Florida Trivia! Name a Florida judge who served, full-time, on more than one of Florida's district courts of appeal.

I'll post the answer, or at least one of them, around 4:45 ET today.

Appellate Praise. Today's Sun-Sentinel has this very kind story about Richard Rosenbaum, the appellate attorney who handled Lionel Tate's recently successful appeal.

Shhhh. Lawyers for an accused serial killer are asking a judge to require the Times-Union to take information about the case off its web site. Read about it -- where else? -- here in today's Times-Union.

$100 Million. The AP has this story on a $100 million wrongful death suit based on an alleged failure to diagnose a 43-year-old woman's aneurysm.

Puppy Suit. Today's Sun-Sentinel has this report on a lawsuit by puppy purchasers who claim a store sold them sick pets.

Thursday, December 11, 2003
More Schiavo News. A reader sent in a question asking what the Second District meant when it concluded yesterday's opinion in the Schiavo case by saying that the Governor's petition was denied "with prejudice."

The Governor petitioned for a writ of prohibition. Prohibition is a discretionary writ, meaning that the court has the ability to decline issuing the writ even if the requirements for its issuance are met. Because prohibition is a discretionary writ, some attorneys might suggest that the court's decision is not binding and that the same issue could be raised later in the case -- say, for instance, on appeal from a final judgment.

By indicating that the Governor's petition was denied "with prejudice," the court was likely signaling that its decision was on the merits of the request and that the court would reach the same result in an appeal of right from a final judgment. In other words, the appellate court was suggesting that it is done with this disqualification issue.

Privacy Measures. As regular readers may recall from this prior Abstract Appeal post, the Florida Supreme Court recently ordered the clerks of the state's courts to stop releasing electronic versions of court documents, with certain exceptions, while studies are undertaken to determine the best ways to protect privacy in this new age of rapid, low-cost transmission of court documents. Well, lots of folks are having a hard time understanding what this new moratorium encompasses -- including the court clerks themselves. Today's Tampa Tribune has this very interesting article on the subject.

Cell Tower Suits. If you've wondered whether municipalities have much leverage in keeping out cell towers, check out this story in today's St. Pete Times. The story concerns a recently filed lawsuit over Tarpon Springs's decision to refuse to rezone to permit the plaintiff to build a tower.

Schiavo News. Abstract Appeal had this post yesterday on the most recent appellate decision in the case. For more coverage, see the stories in today's Tampa Tribune and St. Pete Times.

UPDATE: You can also read Governor Bush's written response to the decision by looking here.

Tobacco Win. The Tampa Tribune has this short story on how a Tampa jury found in favor of the defendants in a case brought by a 75-year-old former smoker with lung cancer.

Hey, Legislature! In what was probably yesterday's highest profile decision from a Florida court, the Fourth District reversed the conviction of youngster Lionel Tate. Tate was 12 when he allegedly killed a 6-year-old girl by severely beating her. He was found guilty of aggravated child abuse and premeditated murder. The appellate court reversed the conviction, however, on the basis that the trial court should have held a hearing on the young man's competency, based on events that occurred while the case was before the trial court. Because of the delay that has occurred and will continue to occur before a competency hearing can be held, the court ordered that a new trial is required as well.

The Fourth District also called on the Florida Legislature to revisit whether it intended the crime of aggravated child abuse to apply to acts committed by children. The Fourth District was concerned that such an application of section 827.03 was not intended, but the court held that, based on the statute's plain language and its continued existence despite the Second District's voicing of the same concern years ago, the statute must be applied to minors as well as adults.

Third District: Liability for Adult Child's Actions. Curious about when a parent can be held liable for the actions of an adult child? Check out this case from the Third District, which held that a 19-year-old murderer's parents were not responsible for his actions even though they permitted him to live in their home while he was on community control.

Third District: Land Development in the Keys. Resolving a dispute over whether landowners in the Florida Keys can build on their property, the Third District yesterday held that persons who owned property and, prior to September 15, 1986, relied on prior law permitting them to develop it (presumably by taking steps toward development) had a vested right to develop their land. The court held that those who had not undertaken such reliance by September 15, 1986, were bound by regulations then put into effect that prohibit development, though the court explained that if those regulations have rendered any property practically useless, a taking has occurred and the landowners have a claim against the state for full compensation of the land's value.

Third District: Attorney's Fees. Rule 1.525 of the Florida Rules of Civil Procedure states that a motion for attorney's fees shall be served within 30 days after judgment is entered or a notice of voluntary dismissal is served. What happens if only one of multiple claims carries an attorney's fees right for the defendant and the plaintiff simply withdraws the claim? In this case, the Third District held that the rule is inapplicable under such circumstances and that the defendant has a reasonable time to move for attorney's fees.

Questions, questions. Yesterday, in both this case and this case, the Second District certified the following to the Florida Supreme Court as a question of great public importance:


Second District: Multiple Majorities? When is the agreed opinion of two judges on a three-judge panel not the opinion of the court? My understanding is that such an opinion is the opinion of the court, which would mean that there are two majority opinions to be found in this case from the Second District. The case concerns the admissibility of Williams-rule evidence in a criminal trial, and the court issued a per curiam majority opinion as well as a concurrence joined by a second judge. Interestingly, the third judge also wrote a concurrence in which he explained that the court's decision was unanimous, at least with regard to the result in the case. For purposes of determining what is binding law in the Second District, if not elsewhere, it seems that both the per curiam majority opinion and the concurrence joined by another judge are equally binding opinions. Anyone think otherwise?

Second District: Time-Barred Recoupment Claims. This one could be a trivia question: when is a claim that is untimely under the applicable statute of limitations nevertheless not time-barred in a case? The answer, explained in this decision from the Second District, is when the claim is a counterclaim for recoupment of the damages sought by a plaintiff. At least, that is the general rule.

First District: Assigning Lawsuit Claims. The rule is simple: you cannot assign a legal malpractice claim. For more details, see this decision from the First District.

First District: Double Jeopardy. Not that there was much doubt, but this decision from the First District confirms that you cannot be convicted of attempted premeditated murder and attempted felony murder of the same victim.

Wednesday, December 10, 2003
More Schiavo News. This story from the AP discusses the order mentioned in the previous post and includes a response from Governor Bush.

Schiavo News. Today, the Second District rejected a petition by Governor Bush to have Judge Baird disqualified from hearing the constitutional challenge in the Schiavo case.

To back up a second -- recall that Michael Schiavo is challenging the constitutionality of the new law that permitted the Governor to order Terri's feeding tube reinserted. The Governor moved to dismiss the case on procedural grounds, and Judge Baird denied that motion. The Governor then appealed that decision, triggering an automatic stay of the proceedings before Judge Baird, but Judge Baird ordered the stay lifted and that the case should proceed at the same time the appeal proceeds. In the course of making that decision, Judge Baird made comments that the Governor believed showed the judge to be biased against the Governor's position, such as the statement that the new law violates Terri's right of privacy and is presumptively unconstitutional. So Governor Bush filed a motion asking Judge Baird to recuse himself for bias. Judge Baird denied that motion. Governor Bush then filed a petition with the Second District, asking that court to disqualify Judge Baird based on his comments and actions.

Today's order -- available here -- refuses to disqualify Judge Baird and holds that the judge's comments and actions would not suggest to a reasonable person that the judge had any bias in the case.

Today's order may also shed some light on how the Second District sees the constitutional case. The court explained that its prior opinions involving Terri Schiavo can reasonably be read to say that Terri's constitutional right of privacy is effectuated by the court decisions to remove Terri's feeding tube. The court also stated that the Governor's order to reinsert the tube "effectively overrul[ed]" those court decisions. This discussion suggests that at least one hurdle the Governor is going to have to overcome to win this case will be to show that the state had a sufficiently compelling interest to interfere with Terri's privacy right and her judicially-determined decision not to continue with life-prolonging medical treatment (i.e., the feeding tube).

I would not be surprised to see a headline later that reads, "Appellate Court Agrees Terri's Law Is Presumptively Unconstitutional." If that is the headline, though, hopefully it will be followed by the comment that this does not mean the law has been found unconstitutional -- it means just that the courts view laws infringing on privacy rights (like this new law) to be presumptively unconstitutional and put the burden on the state (here, the Governor) to prove that the law is constitutional. Whether the Governor will meet that burden remains to be seen.

Keep in mind that the Second District is still considering the Governor's appeal of Judge Baird's refusal to dismiss the case. The Governor has maintained that the suit should have been filed in Leon County, not Pinellas County, and that he was not properly served with the suit papers.

Schiavo News. Terri's case has prompted a campaign to raise awareness about living wills. Read about it in this story in today's St. Pete Times. Note that the story contains the misstatement that Michael Schiavo made the decision to remove Terri's feeding tube. I'm a little surprised that the Times's editors did not catch that error when they took the story from this wire from the AP. The Times has generally done a good job of covering the Schiavo story.

Gun Range Immunity. Immunizing gun ranges from environmental cleanup lawsuits is the subject of a bill making its way through the halls of Tallahassee, and the bill is the subject of this story in today's St. Pete Times.

Convicted Convicts. Frank Cerabino, columnist for the Palm Beach Post, has these amusing thoughts on a potential daily schedule at the nation's first faith-based prison, in Lawtey. For more serious news on the subject, see this earlier Abstract Appeal post.

Judicial Reprimand. That's what may be on the way for the Honorable Robert Lance Andrews, a judge on the Seventeenth Circuit (Broward County). Yesterday, Florida's Judicial Qualifications Commission entered a stipulation with Judge Andrews by which both sides agreed that he made a series of improper comments regarding a case that was pending before him and that the appropriate result would be a reprimand by the Florida Supreme Court. You can read the charges against Judge Andrews here and the stipulation here. You can also read a story from today's Sun-Sentinel on this subject by looking here.

Excessive Force? A new lawsuit has been filed by Elian Gonzalez's family, according to this story in today's Sun-Sentinel. The suit apparently alleges that six federal agents used excessive force when they broke down the door to the family's home to remove Elian. Given the widely reported events of the time, including the family's refusal to turn over the child despite the orders of federal authorities, this case could be interesting.

Pre-K Problems. The Times-Union has this story on how lawmakers are grappling with how to implement the universal pre-kindergarten constitutional amendment approved by Florida voters in 2002. That's the other school-related amendment that got a thumbs-up by the electorate and now needs funding by the Legislature. You can read the amendment by checking out subsections (b) and (c) of Article IX, section 1 of the state constitution.

Tuesday, December 09, 2003
Extortion. Add this subject to my list of things to talk about when I have nothing better to talk about but plenty of time to talk: the much ignored crime of extortion. The subject comes to mind as a result of this story in today's Palm Beach Post, which tells the tale of an Arizona couple who lost a valuable wedding ring on the beach in St. Lucie County and the man who found the ring. Unhappy with the $300 reward offered by the couple, the man demanded as much as $3000 for its return. He was caught by police and arrested for extortion. The story indicates that the man told detectives he did not believe he did anything wrong.

Attention UF Law Grads… The namesake of the school on your degree has been cleared of ethics charges for ridiculing a judge's ruling, according to this story in the Times-Union. Fred Levin apparently called a judge's ruling "unconscionable."

To that, I say: Huh? This story apparently predates the start of the Abstract Appeal web log, so maybe that explains why I have not followed it before. If anyone has any further insight into what happened here, please send me an email.

Burial Woes. This story from today's Sun-Sentinel discusses the latest suit against Menorah Gardens.

Voucher News. This story in today's Miami Herald offers an effort to be critical of Florida's Opportunity Scholarship Program, the voucher program that provides public school children with alternatives when their assigned public schools repeatedly fail.

Limiting Initiatives. Speaking of proposed constitutional amendments, the St. Pete Times has this story on how state lawmakers are working toward making the constitutional amendment process a bit more difficult.

Independent Redistricting. This interesting story from the AP explains how Florida Democrats are advancing a constitutional amendment to require that redistricting be done by an independent commission, rather than the Legislature. Democrats have the most registered voters of any party in the state, but they have only a minority of seats in the Legislature, and they now believe the current process for drawing political districts is too political. As the story explains, it was just a few years ago that the shoe was on the other foot.

Monday, December 08, 2003
More On Litigiousness. In this post from this past Friday, I linked to a news story regarding a Wal-mart shopper who was reportedly trampled in the Black Friday a.m. rush. I noted that the story was interesting in part because it revealed that the shopper had some 16 prior injury claims, many against Wal-mart.

A wise and well informed reader has forwarded me two additional links to stories that provide a bit more detail about this injury-prone shopper's prior claims. (Those stories are here and here.) In forwarding these links, the reader (a well regarded South Florida attorney) points out that the shopper was apparently a former Wal-mart employee and that several or even many of the prior incidents appear to be routine, low-value, work-related incidents. Many workers with poor or no health insurance will utilize workers' compensation claims to address job-related injuries where better insured people would not.

These points are well taken.

One of the reasons that "litigiousness" is generally not permitted to be an issue in injury cases is that the prior incidents may be well founded, and if the defense is permitted to discuss them, the plaintiff may require a chance to prove their legitimacy to avoid the specter of litigiousness. The result could be a time-consuming and potentially confusing set of mini-trials regarding old claims in the middle of a trial on the current claim.

That's not to say, however, that past incidents will never be raised in a case. Past incidents could be admissible as relevant to numerous issues, such as the source of injury or even the plaintiff's credibility -- depending on the specific circumstances involved. But few, if any, news stories are going to provide the level of detail necessary to make such determinations.

The bottom line is one common to news involving legal issues: beware the impression that can be given by snippets of evidence. A piece of evidence here or there may be useful in framing a dialogue, or simply raising interesting questions -- that's the way I meant my original post. A piece of evidence, however, should not be a basis to prejudge (or post-judge) the outcome of a dispute. It is usually safe to assume that there is more information you do not know, the proverbial "other side" to the story. In my view, you will only know the whole truth if you were personally involved in the events or, perhaps, you participate in a full trial over them.

Schiavo News. A reader has kindly sent in a link to this column from yesterday's Miami Herald. The columnist, Fred Grimm, has some fairly strong views on what is keeping Terri alive.

Merry Merry, Mr. Gary. I called Willie Gary a "super-successful" attorney in a recent post. He's also well known for his holiday parties. The Palm Beach Post has a story here on this year's shin-dig, with some 20,000 people expected.

Election News. Today's Democrat has this story on how Florida elections officials are bracing for another close election.

Talks Beget Protests Beget Lawsuits. Today's Miami Herald has this story on how several groups are preparing lawsuits against the City of Miami in connection with the city's security tactics during last month's trade talks and protests.

More Voucher News. Today's Palm Beach Post is chock full of voucher news: this additional story reports on, or perhaps stokes, the controversy over whether private schools accepting voucher students should be subjected to the testing required of public schools.

McKay Schollys. Today's Bradenton Herald has this story on Florida's McKay Scholarship Program, including what one might (but might not) consider a criticism as well as information on an upcoming task force meeting on the program. If criticism of the program interests you, check out the more in-depth story on the same subject here in the Palm Beach Post.

Sunday, December 07, 2003
Schiavo News. Well, a poll. The St. Pete Times and Miami Herald jointly polled Florida voters on various issues, including reaction to the law passed to give Governor Bush authority to order Terri Schiavo's feeding tube reconnected. In short, the poll found most voters oppose the move and believe a spouse, not parents, should make decisions for those incapable of doing so themselves. You can read the Times's story on the poll here, and you can read the Herald's story here.

Saturday, December 06, 2003
Serving Hallowed Time? This is going to be an interesting legal story to follow: Florida is going to dedicate one of its prisons to a voluntary program where prisoners will receive religious-based instruction on a variety of subjects -- "everything from parenting and character building to job training," according to this story in today's Palm Beach Post.

Higher Standards. Perhaps the Fifth District decided to release this 8-page decision as such because it wished to remind the bar, and the public, that misrepresenting case law or otherwise offending the court is verboten and will not be tolerated.

Fifth District: Child's Name Change. Ever wondered what sort of reason you would need to change your child's last name? You can get a good introduction to the subject in this decision from the Fifth District, which reversed a decision to change a child's surname from that of his mother to that of his father.

Fifth District: Workers' Comp Premium Increases. Yesterday, the Fifth District released this decision, which held that a company had no negligence claim against another for acts that resulted in the death of the first company's employee and, consequently, an increase in the company's workers' compensation premiums. The court's opinion indicates that Florida has no case law on this issue and proceeds to discuss the law from other jurisdictions. Technically, the court was correct about Florida's case law, but I can try to add this virtual note to the discussion.

One of my first oral arguments was in a Second District case with the same issue. We fought the claim by focusing on how a person has no general common law duty to look out for another's economic interests. Thus, where Company B causes injury or death to Company A's employee, and Company A experiences an increase in workers' comp premiums as a result, Company B has not breached a common law duty it owes to A. (Certainly, it has breached a duty it owes to the injured employee -- the duty not to cause physical harm to another.) We won a summary judgment on the plaintiff's claim, and the appellate court agreed in a written affirmance. Unfortunately, the Second District's very brief opinion did not mention the damages that were at issue -- increased workers' compensation premiums; otherwise, it may have saved the Fifth District a bit of research. The case was Asbestos Certified Technicians, Inc. v. Coca-Cola Co., 712 So. 2d 461 (Fla. 2d DCA 1998).

Fifth District: Educational Fraud. Is there such a thing? Yes, said the Fifth District yesterday in this case. The court held that a family stated a cause of action for fraud against the Town of Celebration's developer, Stetson University, Johns Hopkins University, and the Osceola County School Board, based on allegedly false claims by the defendants about the quality of education the family's children would receive at The Celebration School, a public school in Celebration, Florida. The family claims it relied on those false representations by moving to Celebration and enrolling its children at the Celebration School. A trial court dismissed the claim, but the Fifth District reversed. Judge Torpy dissented, characterizing the claim as actually being an unactionable one for educational malpractice.

Fifth District: Offers of Judgment. If you are keeping track of decisions that find offers of judgment ambiguous and thus invalid for purposes of attorney's fee awards, be sure to check out this latest decision from the Fifth District.

Friday, December 05, 2003
Friday Florida Trivia Answer. There may be others, but the people I had in mind were:

Justice Pariente (FSC) and Judge Hazouri (4DCA)

Justice Quince (FSC) and Judge Buckine (DOAH)

Judge Silberman (2DCA) and Judge Khouzam (6th Cir.)

Judge Padovano (1DCA) and Judge Ferris (2d Cir.)

Friday Florida Trivia! Florida is fortunate to have its judicial benches occupied by some great jurists. Some of them happen to be married. To each other.

How many of Florida's appellate judges are married to judges? I'm not sure I know the answer, but I can think of one supreme court justice married to a district court judge, another supreme court justice married to an adminstrative law judge, one Second District judge married to a circuit judge, and a First District judge married to a circuit judge. Can you name them? (If you can name any others, please let me know.)

I'll post the answers around 4:45 ET today.

Schiavo News. The AP has this story on a state senator's proposed bill to require written advance directives before life-prolonging measures could be discontinued.

Train Drain. Today's Tampa Tribune has this story on Governor Bush's opposition to the costly high-speed rail project voters approved (in the form of a constitutional amendment) in 2000.

Litigiousness. It's not supposed to be an issue in an injury lawsuit, but it's often interesting, as in this story about a trampled holiday shopper at Wal-Mart who previously filed 16 injury claims.

Second District: Attorney Billings. In this case, successful plaintiffs seeking attorney's fees from the defendant sought the defendants' attorney's timesheets and billing records. At the time, there was no dispute over the amount of the fees or the time expended. The trial court ordered much of that material disclosed, but the Second District granted a writ of certiorari and quashed the disclosure order. With broad language, the court explained that counsel's bills and time records are work product and contain privileged information that should rarely be ordered disclosed, and then only to address specific disputes.

Second District: Attorney Files. An attorney with a lien on a client's file due to nonpayment need not turn over the file if the client seeks it during discovery in a malpractice claim against the attorney, as explained in this decision from the Second District. I'm not sure if that's good to know or not.

Probation Conflict. In this case, the Second District held that, for purposes of the sequential convictions requirement of the habitual offender sentencing law, probation is a prior sentence. The court acknowledged that this result directly conflicts with the Fourth District's decision in this case.

Fourth District: Judicial Disqualification. For those wondering when a motion to disqualify a judge should be granted, this case from the Fourth District offers a good example.

Fourth District: Delirious Defendant. The defendant seeking to prove ineffective assistance of counsel in this case thinks his head should have been examined because he could not remember his crime. He also claimed he committed his crime, a brutal murder, during a "drug-induced delirium." As the Fourth District explained, that is not enough to show ineffective assistance, and voluntary intoxication does not give rise to an insanity defense.

Lots and Lots. Cases and news, that is. And a trivia question. Here comes a series of quick posts to try to cover it all.

Thursday, December 04, 2003
School Boards Consider Reconsidering Amendment. According to this story in today's Sun-Sentinel, Florida's school board members are being asked to support an effort to repeal the class-size constitutional amendment that Florida voters approved last year.

Schiavo News. Mary Jo Melone, columnist for the St. Pete Times, has these thoughts today on Jay Wolfson's report and on what the parties' attorneys said when she talked with them about a proposed compromise.

Wednesday, December 03, 2003
OK, Here's That Thought. Jay Wolfson's report to Governor Bush, accessible here, observes that while Michael Schiavo's current constitutional challenge continues, the Legislature could, theoretically, rewrite Chapter 765 to provide that only written advance directives can be effective in situations like Terri's. I mention this because it is a suggestion I have seen and heard often since the Schiavo story became big news, and it is a suggestion that leads to some very interesting questions. I would like to highlight one of them. To be clear, I do not wish to speculate on whether the Legislature would make such a change. Nor do I wish to speculate on what the result would be if such a change were to occur, whether in Terri's case or any other. What I want to do is point out that, beyond Terri's case, it would be interesting to see how Florida's courts resolve the issue of whether the Florida Legislature has the power to require written advance directives.

Why might it not? Consider the distinction between (1) the statutory right set forth in Chapter 765 to refuse life-prolonging measures and (2) the privacy right under Article I, section 23, of the Florida Constitution, to refuse unwanted medical treatment. Just because the statutory right does not cover a person's present situation does not mean that the constitutional right will not. This is precisely what happened in the In re Guardianship of Browning case decided by the Florida Supreme Court in 1990. There, the statutory right as it applied to Estelle Browning did not encompass the right to refuse a feeding tube, but the court held that Browning's constitutional right of privacy permitted her, or her surrogate, to make that decision. Theoretically, at least, the courts could find that while the Legislature could limit Chapter 765's refusal right to instances where a person has made an advance, written directive, the constitutional right cannot be so limited. I am not suggesting that the courts would do so; nor am I saying they should or should not. I am merely pointing out that this issue should not be overlooked when considering whether the Legislature should simply pass a law requiring everything to be in writing.

I previously discussed Browning at some length in this post, but it strikes me that folks would benefit from having direct access to the decision itself. I have placed its text in a file on the Abstract Appeal server, and you can access that text here.

And Another Schiavo Thought… The report mentions the possiblity of a change in Florida law -- to require written advance directives -- before the current constitutional challenge is completed. I have a few thoughts to offer on that possibility, but the day job calls. (Actually, it screams. Day and night.) I'll post again later tonight.

More Schiavo News. A very kind thank you from Abstract Appeal to the reader who sent in a link to Jay Wolfson's report. You can read the report in its entirety here.

Wolfson's summary of the underlying events appears quite thorough. I encourage people searching for answers in this case -- or, better, people who believe they somehow know the answers about who did or said what -- to read the report. It is factually enlightening on numerous fronts.

Given that this web log is devoted to the law, and I am following Terri's case here not for its social or political implications but for its legal significance, the following portion of the guardian ad litem's report is worth reproducing:

A legal analysis of the tens of thousands of pages of documents in the case file, against the statutory legal guidelines and the supporting case law, leads the GAL to conclude that all of the appropriate and proper elements of the law have been followed and met. The law has done its job well. The courts have carefully and diligently adhered to the prescribed civil processes and evidentiary guidelines, and have painfully and diligently applied the required tests in a reasonable, conscientious and professional manner. The disposition of the courts, four times reviewed at the appellate level, and once refused review by the Florida Supreme Court, has been that the trier of fact followed the law, did its job, adhered to the rules, and rendered a decision that, while difficult and painful, was supported by the facts, the weight of the evidence and the law of Florida.

Schiavo News. Yesterday's last post gave what was then the latest news in the Terri Schiavo saga. Today's papers give a bit more information about the contents of Jay Wolfson's report. Check out the local coverage by the St. Pete Times, the Tampa Tribune, and even the Miami Herald.

Judge Miner Dies. The Tallahassee Democrat reports here that Florida lost retired judge Charles Miner earlier this week. Judge Miner served on the state's trial and appellate benches for decades. The story does a quick but good job of explaining how Judge Miner was truly a Renaissance man and a great asset to the state.

BILLIONS. The story of a pending "false light" trial against the Pensacola News-Journal and its owner would have made big news even if the "b" word had not been spoken by the super-successful Willie Gary. Read about it here in today's Times-Union.

$100 Million Settlement. The world's largest funeral services company has agreed to a $100 million settlement for mishandling (a nice term) the bodies of deceased Jews in Palm Beach and Broward Counties. You can read about it here in today's Sun-Sentinel. Note that even if this class action settlement is approved, there are other cases pending against the company for the same conduct, so the underlying story is bound to keep making news.

Eleventh Circuit: FDCPA. Roberto and Cecelia Vega leased trailer space from an RV resort, and the resort brought a small claims action against them in a Florida court for damages they owed. The Vegas responded by suing the resort's lawyer in federal court, in a putative class action no less, for supposedly violating the federal Fair Debt Collection Practices Act. The Vegas asserted that serving them with process (the civil complaint and a summons) constituted an "initial communication" under that law and that compliance with the act's notification requirements was therefore required. The federal district court disagreed, concluding that service of process was not a communication under the act and granting the lawyer's motion to dismiss. Yesterday, in a case of first impression in the federal circuit bench, the Eleventh Circuit affirmed that decision. You can read the appellate court's decision here.

Tuesday, December 02, 2003
Schiavo News. We have some news in the Terri Schiavo saga. First up, according to this story from the AP, Judge Baird has issued the protective order Michael Schiavo requested to prevent Governor Bush from deposing numerous persons who have offered statements favorable to Michael's positions. I have not read the order, but it seems that the judge has accepted Michael's position that such discovery is not necessary to resolve the legal issues that Michael has raised.

The less legal and perhaps more interesting news is that Jay Wolfson, the independent guardian ad litem appointed to advise Governor Bush, has completed a written report that the Governor made public today. Unfortunately, I do not see that anyone has posted the actual report, but this story from the AP gives some insights.

According to the story, Wolfson made several findings and recommendations. He found that there is no likelihood that Terri will improve. He also found that Judge Greer's decision to withdraw Terri's feeding tube was "firmly grounded" in Florida law. Wolfson recommended, though, that Terri undergo swallowing tests to see if she could eat on her own, that an independent guardian (i.e., not Michael) be appointed to protect Terri's interests, and that he (Wolfson) be permitted to remain on the case for as long as controversy continues to exist over Terri.

The AP story quotes the Governor as saying that the testing recommendation was "the good news part of this" and as not having changed his mind about staying the feeding tube's withdrawal.

I suspect we will hear more details on these events, and more reactions, in tomorrow's news.

Tobacco Appeal. You may recall that, back in May, the Third District issued this decision which reversed the $145 billion class action judgment against the major tobacco companies. The plaintiffs are now asking the Florida Supreme Court to hear an appeal of the Third District's decision, based on asserted conflict with other Florida case law. This last week, the Supreme Court issued two noteworthy orders in the case. First, in this order, the court denied the plaintiffs' efforts to extend the usual 10-page limit for jurisdictional briefs. Second, in this order, the court denied numerous groups' efforts to file an amicus curiae brief in support of the plaintiffs' request that the court hear the case.

That last order deserves some further comment. As Sylvia Walbolt and Joe Lang -- two excellent appellate lawyers (who happen to be my partners) -- pointed out in this law review article on amicus curiae briefs in Florida, the Florida Supreme Court generally does not permit amicus briefs at the jurisdictional stage of a case. To quote from the article, sans the footnotes:

Unlike the United States Supreme Court, the Florida Supreme Court generally does not permit amicus briefs to be filed at the jurisdictional level. Justice Wells expressed the strong view that because the court's "jurisdiction is so limited, amicus briefs on that issue would not advance the court's knowledge." Justice Pariente contrasted the United States Supreme Court, which takes cases on a purely discretionary basis so that understanding the policy implications can be helpful there, with the Florida Supreme Court, which has a far more limited jurisdiction.

Death Case. The AP has this story on the oral argument heard this morning by the Florida Supreme Court in the death row appeal of Pablo Ibar. The case has been particularly noteworthy because, after his conviction for murdering three people, Ibar became a Spanish citizen, and Spanish officials have accordingly protested his execution.

Earnhardt Autopsy Photos Suit: Over. Finally, the Independent Florida Alligator -- a student paper at the University of Florida -- will have to accept that it cannot access or print Dale Earnhardt's autopsy photos. Yesterday, in this order (way down, under Campus Communications, Inc. v. Earnhardt), the United States Supreme Court denied the paper's petition for certiorari. Florida's courts unanimously ruled that Florida's public records exemption for autopsy photos -- enacted immediately following Earnhardt's death -- is constitutional.

I previously commented at some length on this appeal and the surrounding issues in this post.

Monday, December 01, 2003
Eleventh Circuit: Rule Changes. Just a reminder to all those who practice in the Eleventh Circuit: the circuit's new rules and internal operating procedures go into effect today, the most significant change perhaps being new Circuit Rule 31-6, Maintaining Privacy of Personal Data. In essence, that new local rule prohibits parties from filing with the court (in the form of pleadings, briefs, exhibits, etc.) certain "personal data identifiers." Other information is discouraged from being included, and a procedure is established for when a party believes filed materials should or must contain prohibited personal data.

To read the Abstract Appeal post discussing what were then proposed changes, see this post from August 3, 2003. For the current (188-page) FRCP/Circuit Rules/IOP, look here, and to view a (183-page) red-lined copy of the new provisions, look here.

And More Suits. The News-Journal also has this interesting story on the tension between doctors and those injured in the course of medical treatment, with a focus on how Florida's new medical malpractice law affects the balance of interests.

Suing Florida. Today's Daytona Beach News-Journal has this interesting story, complete with figures, on lawsuits against Volusia County and its municipalities during 2002-03.

Scooter Laws. Florida doesn't have them, according to this story in today's Tallahassee Democrat, but we sure are selling lots of scooters.

Third District: Piercing the Privilege. Can an insured pierce an insurer's attorney-client privilege by claiming the insurer committed insurance fraud when the insurer accused the insured of insurance fraud? Assuming that made any sense, the answer is no, if the insurer had a reasonable basis for its claim. Check it all out in this case from the Third District.

Third District: Fraud, Negligent Misrepresentation. This decision from the Third District shows that it is possible to obtain a solid summary judgment on claims for fraud and negligent misrepresentation.

Third District: Expert Testimony. If you keep track of cases where the erroneous admission of expert testimony results in a new trial, check out this Benlate case from the Third District.

Judge Ervin: Waiving Arbitration. Rounding out the noteworthy First District decisions from last week, Judge Ervin offers a concurrence in this case in which he suggests that the Florida Supreme Court consider whether prejudice need be shown to find that litigation conduct (such as filing an answer) waives the right to arbitrate. If you often deal with arbitration, be sure to check this concurrence out.

Questions, questions. In this case, the First District certified the following to the Supreme Court of Florida as a question of great public importance:


First District: Unconstitutional Valuations. On a roll with declaring tax-related statutes unconstitutional, the First District in this case declared unconstitutional section 193.016. The court viewed the statute as violating the requirement of Article VII, section 4 of the Florida Constitution that all property be uniformly valued. Judge Benton dissented.

First District: Taxing Municipalities. In this case, the First District held section 166.047 unconstitutional in light of Article VII, section 3(a) of the Florida Constitution. The statute permits ad valorem taxation on municipal property used to provide telecommunications services, while the constitutional provision prohibits taxing muncipal property used for municipal purposes. Judge Ervin dissented and would have held that the muncipality's provision of telecommunications services is a governmental-proprietary function that is not exempt from taxation.

Supreme Court: Setting Off Settlements. First up, this decision released Wednesday by the Florida Supreme Court. Answering a certified question from the Second District, the court held that, with respect to a medical malpractice award, a defendant may set off the amount of economic damages recovered by the plaintiff from a settling tortfeasor, but not the amount of noneconomic damages recovered.

Back in Blog. So my one full day turned into a few, huh? Yeah, well, turkey, rest, turkey, sports, turkey, Tar Heels!, turkey, clean the yard, turkey, clean the cars, turkey, clean the house, turkey, squeeze in some of that nonbillable work I've been meaning to do. Whew! Time to get back to work, and to blogging Florida law. And, ok, it wasn't that much turkey.

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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