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Friday, January 30, 2004
 
Friday Florida Law Trivia Answer
I guess I should have said 6:30, traffic from Orlando to St. Pete permitting. I was in Orlando today for a seminar. 'Twas a slow, rainy drive back down I-4 tonight, and that kept me from promptly posting this quite simple answer:

Section 318.14(2) of the Florida Statutes provides that, with an exception concerning citations by toll enforcement officers, any person cited for a noncriminal traffic infraction "must sign and accept a citation indicating a promise to appear." Section 318.14(3) provides: "Any person who willfully refuses to accept and sign a summons is guilty of a misdemeanor of the second degree."

So, yes, the person must sign the law enforcement officer's citation or in most cases be guilty of a crime.

 
Friday Florida Law Trivia!
Hunter is on hiatus today, so this week's trivia question comes from yours truly. It definitely qualifies as trivia:

When a person is stopped by a law enforcement officer and asked to sign a citation, does the person have to sign it?

The answer will be posted this evening at approximately 6:30 EST.

 
R. Kelly Seeks Suppression Order
R. Kelly has asked a judge to suppress what may be nude pictures of an underage girl because, according to the R&B singer, the materials were seized in an illegal search. You can read the story here in today's Lakeland Ledger.

 
Second District: What Nice Folks
The criminal defendant in this case certainly caught the Second District on a good day. The appellate court affirmed the order on appeal, finding no error, but noticed on its own that the defendant's sentence had been miscalculated in a separate, unappealed order. The court indicated that, correctly calculated, the defendant would be entitled to be released in "January 2004." As a result, the opinion concludes with the always curious "affirmed but remanded" directive.

 
Supreme Court: Work Product
Resolving a conflict in the district courts of appeal, the Florida Supreme Court yesterday issued this significant opinion regarding the discoverability of work product. The case involved full depositions that a party intended to use at trial as impeachment material but refused to produce in discovery. The court held that such materials must be produced, though counsel should not have to cull materials for relevancy before producing them and thereby disclose litigation strategies or mental impressions in the case.

 
Supreme Court: Fraudulent Transfers Act
In this decision released yesterday, the Florida Supreme Court answered a question certified to the court by the Eleventh Circuit concerning Florida's Uniform Fraudulent Transfers Act permits aggreived creditors to sue banks who aid depositors in making fraudulent transfers. In a narrowly worded decision that expressly disclaimed any application to theories of liability other than UFTA, the court held that UFTA does not permit creditors to sue banks under an "aiding and abetting" theory.

 
Fourth District: Mind Thy Transcripts
Here we have yet another reminder from the Fourth District that the failure to present a full transcript of the proceeding below may well doom any effort to show reversible error on appeal.

 
Third District: Medicaid Anti-Kickback Statute Unconstitutional
In this decision released Wednesday, the Third District affirmed a trial court's decision that Florida's Medicaid fraud statute, section 409.920, is in two respects preempted by federal Medicaid law because the Florida statute prohibits conduct that Congress intended to be permissible.



Thursday, January 29, 2004
 
Rush News, Of Interest to the Bar
Hmmmm. After it looked like The Florida Bar and Florida's Attorney General had advised the Palm Beach County State Attorney's Office not to withhold from a response to a public records request written communications between the state attorney's office and Rush Limbaugh's attorneys -- remember this story in the Sun-Sentinel? -- today's Palm Beach Post has this story on how the Bar and the AG are saying they were "used" by state attorney Barry Krischer and that their advice was "misrepresented."

Florida Bar members may wish to take note of this story, which ultimately looks to concern the distinction between asking the Bar for ethics advice and asking the Bar for a legal opinion on the operation of Florida's public records laws.

 
Justifying Homicide
Today's Tampa Tribune has an interesting story on Lawrence Storer, a storeowner who was charged with manslaughter Tuesday for using his truck to run down a man who had just robbed him at gunpoint. According to the story, local reaction is Tampa appears to support the storeowner's actions. Be on the lookout for the inevitable discussions on the justifiable use of deadly force and the ability of juries to nullify criminal conduct. This story could be a national topic.

 
Eleventh Circuit: Adoption By Homosexuals
This is a "must read" decision from the Eleventh Circuit yesterday. The federal appellate court considered and rejected various constitutional challenges to a Florida law, section 63.042(3), that prohibits adoption by homosexuals. The noteworthy aspects of the legal discussion are too numerous to detail here. The short of the matter is that the court held there is no fundamental liberty interest to a family-like integrity among those with close, loving relationships (such as children and foster parents); the court interpreted Lawrence v. Texas not to announce a fundamental right to private sexual intimacy; the court found Lawrence distinguishable because the current case involves minors and a statutory privilege, rather than consenting adults and a criminal punishment for conduct; and the court applied rational basis scrutiny in determining that the prohibition does not violate equal protection principles.

Wow. Anyone even remotely interested in the overlap between constitutional principles and family law should read this decision, which concludes with this language invoking the difference between constitutional constraints and legislative policymaking:

The State of Florida has made the determination that it is not in the best interests of its displaced children to be adopted by individuals who "engage in current, voluntary homosexual activity," and we have found nothing in the Constitution that forbids this policy judgment. Thus, any argument that the Florida legislature was misguided in its decision is one of legislative policy, not constitutional law. The legislature is the proper forum for this debate, and we do not sit as a superlegislature "to award by judicial decree what was not achievable by political consensus."
(citations omitted).

 
Eleventh Circuit: Non-Resident Speech At City Commission Meetings
In this wonderfully pithy decision released yesterday, the Eleventh Circuit decided that a City of Cocoa ordinance that limits the ability of non-residents to speak at city commission meetings violates neither the Free Speech nor Equal Protection Clauses of the First and Fourteenth Amendments.

 
Schiavo Page Update
Unfortunately, the revised page is not yet ready. The "real" job and a pending closing on our new place in St. Pete have made time very tough to come by. I hope to have it done very soon. For those waiting for updated discussions, thanks for your patience.



Wednesday, January 28, 2004
 
No Pain and Suffering For You
Yesterday, a jury awarded $407 to a man who ordered potato soup at a Shoney's restaurant but received clam chowder instead. The man was allergic to the chowder and sought damages for medical expenses as well as pain and suffering. The jury awarded only medical expenses. Read about it here in today's Palm Beach Post.

If you are familiar with Florida law on offers of judgment, you will understand things are even worse for the plaintiff here. The article indicates that the plaintiff rejected a settlement offer for more than double the amount ultimately awarded by the jury. That can entitle the defendant to recover from the plaintiff the defense's attorney's fees from the time of the offer.

 
Dude, Where's My Weed?
Every once in a while, you hear a story about someone who calls the police to report that his stash of illegal drugs has been pilfered. You guessed it. The Miami Herald has the story here.

 
Florida's Hot
But too hot? The Miami Herald has this interesting story on the oral argument held Monday before the Eleventh Circuit on whether Florida's death row is unconstitutionally hot.

 
Wall Suit In The Works
The husband of a 67-year-old woman who drove through the fifth floor wall of a Ft. Lauderdale city parking garage has given notice that he intends to sue the city for her death. Read about it here in today's Sun-Sentinel.

 
Same Say, Say Some?
Opinions at a state senate committee's Broward County public meeting on whether to change the way citizens can amend Florida's Constitution favored the status quo, according to this story in today's Sun-Sentinel.

 
Definitely Not A Cat Person
The Bradenton Herald reports here this morning on the sentence a 14-year-old Cape Coral man received for beating his neighbor's cat and feeding it to an alligator. Yes, that's illegal.

 
Welcome, Fifth District
I believe it was last week that the Fifth District added its data to the web site that provides docket information for Florida's district courts of appeal. We now have the dockets for the state supreme court and all five district courts online -- a credit to the vision of the Florida judiciary. Links to the DCA docket page and the Florida Supreme Court's docket page are available in the column to the left.

 
Change, Slow But Sure
Today brings some changes to the Abstract Appeal site. They're minor but in some ways meaningful. Blogger has begun offering its version of XML support, Atom, and to take advantage of that, there is now an Atom link in the lower part of the left column. Because RSS/XML feeds work best with well defined titles, I have begun using Blogger's title function, and as a result you will now see the bold-faced title for each post above the post, rather than to the post's left as it had been. Otherwise, posts will not look any different.

Also, I've added links on the left to the Florida courts' docket pages, and I've updated the links in the right column. The About page is slightly updated as well.

Coming tomorrow, a revised Terri Schiavo Information Page.



Tuesday, January 27, 2004
 
Kids at Night = Guards, Cameras Needed?
Today's Tampa Tribune has this story about a lawsuit filed against Steak 'n Shake by the parents of a young man who was killed in a fight at one of the company's Tampa-area restaurants. The plaintiffs' lawyer is quoted as saying that kids were known to gather at the open-late restaurant, and thus the store was negligent for not having guards or security cameras.

 
Fetal Guardianships. Governor Bush is considering asking the Legislature to pass a law that would permit guardians to be appointed for unborn children carried by incapacitated mothers. Read about it here in today's Times-Union.

 
DCF Suit. Today's Sun-Sentinel also has an interesting story about an adult's federal lawsuit against Florida's Department of Children and Families for, of all things, an education. This could be a good one. Read the story here.

 
Rush News. Rush Limbaugh's attorneys are speaking out. Read about it all here in today's Sun-Sentinel.

 
Eleventh Circuit: En Banc'ing. On Friday, the Eleventh Circuit decided to vacate the panel decision in this case and rehear the matter en banc. The case concerns the forfeiture of some $242,484 in cash from a woman carrying the money through an airport, and the ultimate issue regards whether the government had reasonable grounds to believe the money was substantially related to a drug crime. Line-drawing cases can be fun to read, and the fun in this case is not yet over. The en banc order is available here.

 
Eleventh Circuit: FACE. If you do not know very much about the federal Freedom of Access to Clinic Entrances law, then this decision released Friday by the Eleventh Circuit will give you a brief introduction to the statute. The case concerns a woman who, while sedated and in the middle of an abortion procedure, asked to leave, but the doctor performing the procedure restrained her and continued with surgical efforts. Ultimately, the case confirms that where there is no dispute a woman was restrained because complications developed during an abortion procedure and the doctor's efforts were undertaken to protect the woman's health, there is no claim under FACE.

 
Eleventh Circuit: Catching Up. I have managed to fall a bit behind on a couple of noteworthy Eleventh Circuit cases. I will get to them first this morning.



Monday, January 26, 2004
 
Tobacco News. The AP has this story on the United States Supreme Court's decision today to deny certiorari in an appeal by R.J. Reynolds. The case involves a $195,000 verdict in favor of a smoker's estate. The Second District affirmed the trial court's judgment without a written opinion.

 
Changing Changes. This article in today's Sun-Sentinel recaps the current push in Tallahassee to make it more difficult for voters to change the state constitution.

 
Record Trouble. The Miami Herald reports here that Florida's Department of Children and Families is going to stop requiring department heads to submit tape-recorded weekly reports. Apparently, it's easy to lose track of the tapes, and that creates problems when they are sought in a public records request.

 
Fifth District: Nursing Home Litigation. On Friday, the Fifth District released this significant nursing home litigation decision. Disagreeing with the only other appellate court to speak to the issue, the Fifth District held that "residents' rights" claims under the former version of Chapter 400 survive a nursing home resident's death and may be pursued by a decedent's personal representative.

Previously, the Fourth District, sitting en banc with one judge recused, unanimously held that residents' rights claims under Chapter 400 can only be pursued by an estate's representative if the violation caused the decedent's death. The court relied on what it viewed to be the plain language of former section 400.023(1). The Fifth District, on the other hand, found that statute to be ambiguous and turned to a policy analysis to find that claims for all residents' rights violations survive a resident's death. The court also relied on the 2001 amendments to Chapter 400. Those amendments covered a wide range of issues, including eliminating the automatic attorney's fees provision for successful plaintiffs and, most pertinent here, amending section 400.023(1) to provide a cause of action to a decedent's estate regardless of the cause of death. The Fifth District regarded the change to section 400.023(1) as indicative of the legislative intent behind the prior version.

One additional point should be made here: The en banc Fourth District certified a question of great public importance to the Florida Supreme Court concerning the proper interpretation of former section 400.023(1). That occurred in 2000. Since then, the supreme court has granted review in the case, and the high court heard oral arguments on August 31, 2001. A decision has not yet been issued.

 
Fifth District: Multipliers Under Fee-Shifting Statutes. In this decision released Friday, the Fifth District approved the use of contingency risk multipliers to increase attorney's fees awards in the context of section 627.428 -- the statute that permits insureds to recover attorney's fees when they successfully sue their insurers for policy benefits. However, noting the Supreme Court of Florida's recent decision in this case, which held that contingency risk multipliers cannot be used in the context of offers of judgment, the Fifth District certified the following to the Florida Supreme Court as a question of great public importance:

IN LIGHT OF THE SUPREME COURT'S DECISION IN SARKIS, MAY A MULTIPLIER BE APPLIED TO ENHANCE AN AWARD OF ATTORNEY'S FEES GRANTED UNDER A FEE-SHIFTING STATUTE SUCH AS SECTION 627.428, FLORIDA STATUTES (2002)?

 
More Schiavo To Come… No news yet, but I thought I would let folks know that I am working on an updated Terri Schiavo Information Page. It's under construction and should be done soon.



Friday, January 23, 2004
 
Friday Florida Law Trivia Answer. The foundation of Florida law has been influenced by both English and Spanish law. The greatest influence came from England, as Florida has adopted the common law of England as it existed when the original 13 colonies declared their independence. In fact, to this date, this Florida statute provides that general English common law in existence on July 4, 1776, is the law of Florida unless it is inconsistent with federal law or Florida's statutes.

To a lesser extent, Spanish law also influenced the foundation of Florida law. When the Spanish Empire ceded Florida to the United States, it did so on the condition that the United States and Florida honor legal rights previously existing under Spanish law.

For a good overview of the influences of English and Spanish law on Florida law, look here.

 
Friday Florida Law Trivia! When Florida began its existence as a state in the United States, Florida law was derived from two major foreign sources. Name them.

The answers will be posted at approximately 4:45 p.m. EST today.

 
Happy Friday. It's Friday, and Hunter's back with this week's Florida law trivia question. His question should be posted soon. You can't tell that the man's a scholar, can you? I enjoy his questions -- when I get them right -- and I'm very grateful to him for his participation in the Abstract Appeal web log.

 
Rush News. Today's Sun-Sentinel reports here on plea discussions between Rush Limbaugh and the Palm Beach County State Attorney's office.

 
A Couple of Votes Away. Marcia Cooke, an assistant Miami-Dade County attorney and a former Inspector General under Governor Bush, has been nominated to the Southern District of Florida's bench. Read about it here in today's Palm Beach Post.

 
Supreme Court: Uniformity In Extraordinary Writ Denials. How can you tell the difference between an appellate lawyer and, well, other kinds of lawyers? Ask whomever about this decision yesterday from the Florida Supreme Court. If you get an enthusiastic response, you are probably talking to an appellate lawyer. (Or a judge.) In the case, the state supreme court stepped up to the proverbial plate and smashed out of the park the long-lingering uncertainty over what it means when an appellate court simply denies a petition for extraordinary relief. Because there are nonmerit thresholds that must be reached in an extraordinary writ case before the appellate court can turn to the matter's merits, a simple denial can leave the parties unsure about whether it was based on a failure to make the threshold showings or on the actual merits of the case. Also, some writs are discretionary such that the appellate court can simply deny relief, irrespective of the merits. In all events, an order simply saying "denied" does not tell the whole story and would often leave the parties (and their lawyers) unsure about whether they could continue to litigate the matter or whether, so to speak, the case was over.

To this point, Florida's appellate courts have dealt with this concern on a piecemeal, per writ, basis. For instance, in the case of petitions for writs of prohibition, three of the district courts of appeal have expressly held that unelaborated denials in their respective courts are not rulings on the merits and therefore do not preclude further litigation on the issues, but two of the district courts have held that unelaborated denials in those courts are rulings on the merits. So with respect to prohibition petitions, you needed to focus on which court issued the decision to determine if the decision was merits-based, though at least the case law would give an answer. For several types of writs, there has been no case law to explain whether a particular court's simple denial is a merits-based ruling.

That all changed yesterday. Using a case seeking a writ of mandamus, the supreme court announced that, from this point forward:

[U]nelaborated orders denying relief in connection with all extraordinary writ petitions issued by Florida courts shall not be deemed to be decisions on the merits which would later bar the litigant from presenting the issue under the doctrines of res judicata or collateral estoppel unless there is a citation to authority or other statement that clearly shows that the issue was considered by the court on the merits and relief was denied.
Pitch. Swing. Hit. Ballgame.

 
Eleventh Circuit: Securities Fraud. Yesterday, the Eleventh Circuit released this decision involving Florida and federal law claims of securities fraud. The case's facts tell the tale of a man duped by his brokers. The decision confirms that, based on the SEC's interpretation of the federal securities laws, securities fraud includes situations where a broker accepts payment for securities the broker never intends to deliver. The case also highlights two distinctions between Florida and federal securities fraud claims: Florida has a longer limitations period for filing claims and lesser particularity requirements regarding the element of scienter.



Thursday, January 22, 2004
 
Flying Free. After hiring a lawyer to do the job, a Boynton Beach apartment complex has decided not to pursue eviction proceedings for a pair of tenants who insist on displaying an American flag in their apartment's window. Read about it here in today's Palm Beach Post.

 
Eleventh Circuit: Publishing PGA Scores. Law.com today has this story on an oral argument held last week at the Eleventh Circuit. The case concerns the PGA's efforts to keep media outlets from reporting tournament scores in real time. I'm looking forward to the opinion already.

 
Fourth District: A Guy Walks Into A Bar… Only the guy was an undercover officer, and the bar was a gay bar. Sure to make headlines, this decision released yesterday by the Fourth District affirmed a trial court's dismissal of criminal charges against a gay man who claimed the undercover cop used the lure of sex to entrap him into committing a drug crime. The case is quite interesting, and the court concluded that the officer's conduct crossed the line of due process. Judge May dissented on grounds that the entrapment issue, while a bona fide defense, should have been resolved by a jury.

 
Third District: More Good News For Those Wearing "POLICE" Shirts. Yesterday, the Third District issued its decision on rehearing in this case involving a man arrested for wearing a t-shirt with the word "POLICE" on it. The significant portion of the court's opinion remains the same: the court found section 843.085(1) unconstitutionally overbroad in that it makes it illegal to wear various indicia of law enforcement authority but does not require proof that the wearer intended to deceive the public into believing the display to be official. This footnote from the case summarizes the bottom line:

In the absence of a requirement that the offender who wears or displays law enforcement indicia intends to deceive a reasonable person into believing that such paraphernalia is authorized or legitimate, there is the potential of penalizing purely innocent, protected conduct. For example, an individual who wears or displays unauthorized law enforcement apparel or indicia merely in observance of Halloween or as an actor in a play or film is in violation of this statute if a reasonable person could be deceived as to its authenticity. Moreover, in the aftermath of the "September 11th" tragedy, it has now become commonplace for many Americans to wear authentic-looking law enforcement t-shirts, caps and other paraphernalia merely out of reverence for the tragedy's heroes. All such persons would nevertheless be in violation of section 843.085(1). We believe that Floridians do enjoy the right to innocently wear or display such paraphernalia under both the Florida and U.S. Constitutions as long as they are not intentionally attempting to pass themselves off as law enforcement officials.
Well said.

 
Fourth District: Appealing Without Transcripts. In this case decided yesterday by the Fourth District, the court acknowledged what many appellate lawyers know to be true: If no transcript was made of a hearing or trial, the appellee is not likely to be very helpful in reconstructing what happened and the trial judge may well have forgotten. Without a transcript, an appellant is unlikely to be able to prove what occurred below and may well lose the appeal for this reason alone. That is what happened in this case.

While the court's observations were entirely accurate, it would be nice to see the judiciary prod the bar a bit by stating that appellees' attorneys have a professional obligation to aid in the reconstruction of transcripts and that disagreements over a hearing's events should be bona fide. Justice would be well served if attorneys could direct their clients to specific case law that says they should not obfuscate a proceeding's events in an effort to derail an appeal. To be clear: I am not suggesting that anything improper occurred in the Fourth District's case. I am just thinking abstractly here, in keeping with this site's name.

 
Questions, questions. Florida law has long been murky, to say the least, regarding the respective realms of the Legislature and the judiciary when it comes to rules used in court. The matter has often been summarized as turning on whether a given rule is a procedural or substantive measure, with the former falling within the judicial domain and the latter falling within the legislative domain. Yesterday, the Second District released this decision, in which Judge Canady took a scholarly look at the procedural/substantive dichotomy in the context of Florida's Jimmy Ryce Act. Specifically, the court considered the act's provision allowing the use of hearsay evidence in civil commitment proceedings for sexual predators. The court concluded that the provision is sufficiently substantive to survive a challenge based on the judiciary's exclusive right to craft procedural rules.

Addressing a significant jury instruction issue in Jimmy Ryce Act cases, the court also certified the following to the Florida Supreme Court as a question of great public importance:

MAY AN INDIVIDUAL BE COMMITTED UNDER THE JIMMY RYCE ACT IN THE ABSENCE OF A JURY INSTRUCTION THAT THE STATE MUST PROVE THAT THE INDIVIDUAL HAS SERIOUS DIFFICULTY IN CONTROLLING HIS OR HER DANGEROUS BEHAVIOR?
The Second District previously certified the same question in an earlier case. The Second District's answer, by the way, is yes.

 
Eleventh Circuit: ADA. Fans of the Americans with Disabilities Act may be interested in the Eleventh Circuit's latest case on the subject, which is available here.



Wednesday, January 21, 2004
 
Schiavo News. Yesterday, Governor Bush told the Second District that, to defend Michael Schiavo's constitutional challenge to the new law that allowed the Governor to order Terri's feeding tube reinserted, he needs to investigate various aspects of the Schiavo case's history. The Governor is appealing Judge Baird's decision not to permit the discovery the Governor requests, which includes deposing Michael Schiavo and others. Today's Tampa Tribune has the story here.

 
Eleventh Circuit: Taxing Toters. When I was in law school, Justice Scalia paid the school a visit one afternoon to speak to the students. He gave a marvelous speech, and while I have had the honor of seeing him speak numerous times since then, he said something that afternoon that made me chuckle and which I have not heard him repeat in his speeches to lawyers or public officials. He said something to this effect, and I'm paraphrasing here from about 10 years ago: "You all think it would be so wonderful and interesting to sit up there in Washington and decide these really important cases. Well, I'll tell you, it's not so glamorous. Most of the cases we decide involve things like determining what one little word means in a really big statute." As I said, that's a paraphrase, but that was his point, and if you've seen Justice Scalia speak you know he delivers his points well. We all laughed.

I bring this story up because I find myself thinking about it once in a while, and yesterday became one of those occasions when I read the Eleventh Circuit's latest decision. The court determined that Horton's toters have been erroneously taxed.

 
Rush Is Right? Three medical associations have asked the Fourth District for leave to file an amicus curiae ("friend of the court") brief supporting Rush Limbaugh's position that state prosecutors should not have simply seized his personal medical records. Read about it here in today's Palm Beach Post.

 
"When I Take The Stand, I'll Get Yous"? That's what the man says he said after the other side's lawyer insulted the man's mother, but the judge didn't buy it, according to this story in today's Sun-Sentinel. The judge found the man guilty of criminal contempt for threatening the lawyer in court. Apparently, the judge believed the lawyer, who said he heard the man say "I'm going to get you."

 
Tax On, Tax Off. Dog food? Tax. Ostrich food? No tax. Typical game tickets? Tax. Sky box tickets? No tax. Today's Daytona Beach News-Journal has this interesting story on an effort to reform what some call Florida's equitably-challenged tax code.

 
He Knows Where Hoffa Is, Too. Former U.S. Representative Gary Condit is suing American Media Inc., the Boca Raton-based publisher of the National Enquirer, Globe, and Star, for defamation. Headlines like "Condit Had Secret Plan To Hide A Body" and "Chandra Strangled By Condit Thugs" left the congressman more than a bit bothered. Read about it here in today's Boca Raton News.



Tuesday, January 20, 2004
 
Happy Anniversary! Congratulations are in order for Steve Minor and his Southwest Virginia Law Blog. Steve celebrated his blog's first anniversary yesterday. SW Va Law Blog was one of the legal blogs that inspired Abstract Appeal. His site is excellent, and I wish him the best for year two.

 
Water, Water. Today's Times-Union has this story on the federal court battle over water rights being waged in Washington by Florida, Georgia, and Alabama.

 
Nursing Home Litigation Reforms. They've worked, according to this story by the Tampa Tribune.

 
Not So Fast. For a good piece on Florida's early graduation option for high school students, and the low number of students opting for the three-year plan, check out this story in today's Sun-Sentinel.

 
Avoiding Religious Disputes. The Sun-Sentinel has this interesting story on how, at last, Florida's prisons may soon be serving kosher meals.

 
Plates Aplenty. Eighty-eight. That's apparently the answer to a trivia question that I suppose Hunter Carroll now isn't going to get to ask one of these Fridays: how many specialty license plates does Florida have? Read about them in this story in today's St. Pete Times. Note that the story indicates the possibility that the law allowing new specialty plates may soon be out the door, so to speak. You can check out the currently available Florida plates at this web site.

 
Budget Flops. As Governor Bush prepares to outline his new budget requests, today's Tallahassee Democrat has this look at past budget ideas that fell a bit flat.

 
Not Boring, But Tough To Read. The Tribune also has this very interesting story about how the Sami Al-Arian case is pushing the limits of the Patriot Act. (Hopefully the printed version has better divided paragraphs…)

 
Boring, Boring, Boring. That's what I thought when I came across this story from today's Tampa Tribune on how Hillsborough County officials want to increase the fines assessed for false burglar alarms. Then I read the second line of the story, which explained that 97 percent of the calls received by the county in 2002 were false alarms. Ouch. Sheriff's deputies certainly have better things to do.

 
To Sue Or Not To Sue. Last week, I linked this story about a lawsuit against the estate of a woman who died in a car crash. The woman was driving a car. The plaintiff was a passenger in another car that, according to police, actually caused the crash. The story quoted the woman's family as being offended by the suit. The story also quoted the plaintiff's lawyer as saying, "It's just that state statutes mandate the parties involved [in an accident] be named in a suit." My post questioned whether a lawsuit should be brought against someone who is not believed to have caused any injuries.

A respected attorney from South Florida wrote in to suggest that I explain the situation, from a plaintiff's perspective, in a bit more detail. She rightly points out that, under Florida law, awards for negligently inflicted injuries are generally made according to each person's percentage of fault. So if someone who was not sued as a defendant was found to be, say, 25 percent at fault, the persons who were sued usually would not have to pay that 25 percent -- they would pay whatever accorded with their own percentages of fault. Keep in mind that it is typically easier for defendants in a suit to blame someone who is not a party to the case than it is for them to blame someone who is a party and who is present in court to defend herself or himself. Thus, by deciding not to sue someone involved in an accident, a plaintiff risks not being awarded damages that are found to have been caused by that person, and it may be easier for the actual defendants to blame the missing defendant because of his or her absence.

Our friend also suggested I point out that, under Florida law, a plaintiff wishing to collect from another person's insurance company must first win a judgment against that person. So even if the plaintiff views the dispute as being against the other person's insurer (as the attorney in the story linked above suggested), the plaintiff must actually sue the person to be entitled to collect from that person's insurer.

On both sets of points, our friend is right, and this information will hopefully be interesting to those reading Abstract Appeal who are not attorneys. I simply want to comment on the bottom line: Florida law never requires a lawyer to sue someone who cannot, in good faith, be believed to be at least partly responsible for the damages alleged in the suit. Rather, the law and The Florida Bar flatly prohibit such suits.

 
I'm Back… I did not expect to go postless over the holiday weekend, but that is precisely what happened. I hope everyone enjoyed the weekend, whether it was an extended one or not. Me, I spent the weekend working and cleaning. The latter would be better described as purging, since what I've really been doing is getting rid of half of what I own to prepare for a move in a few more weeks. The wonderful Debbie and I are buying a condo in downtown St. Pete. We cannot wait for it to be finished. Now, though, let's get back to some law.



Friday, January 16, 2004
 
Friday Florida Law Answer. On November 6, 1956, the citizens of Florida ratified an amendment to the Florida Constitution authorizing the creation of the district courts of appeal. The Florida Legislature then created three district courts, and the newly appointed judges assumed office on July 1, 1957. The headquarters for the newly established First District, Second District, and Third District Courts of Appeal were in Tallahassee, Lakeland, and Dade, respectively.

 
Friday Florida Law Trivia! The majority of all appellate decisions in Florida are decided by the five District Courts of Appeal. What year did Florida create the district courts of appeal, and how many districts were there when they were originally created?

The answers will be posted at approximately 4:45 p.m. EST today.

 
Limbaugh Leak. A nonprofit Virginia law firm wants to know who is responsible for leaking information to the media on the Rush Limbaugh investigation. Read about it here in today's Sun-Sentinel.

 
Time. A man convicted of drug trafficking in 1977 was recently sentenced to five years in prison for the offense. How did that happen? Read about it here in today's Palm Beach Post.

 
Call Parents If Child Arrested, But Not If Only Ticketed. That's one police rule to be gleaned from this story in today's Sun-Sentinel, about a 10-year-old Boca Raton boy who received an $81 ticket for riding a Go-Ped. The motorized "vehicle" was not licensed, but then the state does not license Go-Peds. Go figure.

 
Vote Smart! Another interesting Herald story today concerns the Florida Chamber of Commerce's efforts to amend the state constitution to require approval by two-thirds of voters, rather than a simple majority, to amend the state constitution. The chamber has formed a committee to lead the effort, called VoteSmartFlorida.org. It's amusing, though exceedingly practical, that groups, like companies, now use their web addresses as their names.

 
Celebrity Jurors. Here is an interesting story from today's Miami Herald on Gloria Estefan's recent trip to federal court for jury duty in a police corruption case. The trial judge denied the prosecution's efforts to disqualify her for cause, but she was eventually excused on a peremptory challenge. Personally, I found her reported comments insightful -- she acknowledged that she would not want a celebrity on a jury if she were the defendant, for fear of other jurors being improperly swayed by the celebrity's status.

 
Supreme Court: Grandparent Visitation. It's back. The issue of grandparent visitation. In this decision from yesterday, the Supreme Court of Florida addressed the constitutionality of section 61.13(2)(b)2.c., which permits a trial court hearing a divorce case to award a grandparent visitation rights with a minor child if to do so is in the child's best interests. The First District declared the statute unconstitutional, while in a different case the Fourth District had previously reached the opposite conclusion.

There are two significant aspects to this case. The first should be of general interest, while the second is likely the sort of issue only an attorney could embrace.

On the merits of the constitutional issue, the court held the statute unconstitutional under the right to privacy provision in Florida's Constitution. This result is consistent with a string of grandparent visitation cases decided by the court since 1996. In each of them, the court considered various Florida statutes that permitted grandparents to obtain visitation with a grandchild if visitation was in the child's best interests. One case concerned a provision that permitted what might be called "best interests" visitation where the child's parents had an intact marriage. Another case concerned a provision that permitted visitation where one of the child's natural parents was deceased. And so on. In each case, the court determined that the constitutional right of privacy gives parents the right to raise their children as they wish, and thus to determine whom their children should visit, without interference from the state, unless a demonstrated harm will come to the children in the absence of state interference. Because none of these statutes required such a showing of harm, the court declared the statutes unconstitutional. The court reached the same result in this case.

The second significant aspect of the case is its discussion of the longstanding jurisprudential principle that a court will avoid reaching a constitutional question in a case where the dispute can be resolved on nonconstitutional grounds. Here, the court determined, as a threshold matter, that the trial court had properly denied the grandmother's motion to intervene in as a party in the case. The grandmother filed her motion only after a judgment between the parents had been entered, and when the only issue remaining before the trial court was an economic one presented by a motion for rehearing. Having resolved the case on that ground, however, a majority of the court went on to decide the constitutional issue anyway. Why? The majority explained that it could reach the constitutional question in this case because the court's jurisdiction was based on that issue (which had been addressed by both lower courts) and answering the question would aid the lower courts, resolve a conflict in the districts, and remove a significant legal uncertainty for Florida's children and families.

Justice Cantero dissented, and Justices Wells and Bell joined him, on the ground that the court should not reach the constitutional issue. Justice Cantero pointed out that all supreme court decisions provide guidance and that if the court quashed the decision below on the ground that the lower court should never have reached the constitutional issue, then there would be only one valid district court decision on the issue and thus no conflict in the appellate courts.

I have two comments to offer on this case. One is that family law attorneys may someday refer to this decision as laying the groundwork for a "family law" exception to the principle of avoiding constitutional issues. The majority emphasized that litigation strains the resources of Florida's families and that an important interest was served by clarifying the law in this area at this time. As the majority pointed out, not to address the issue at this time would mean that the parties would have to relitigate the constitutional issue, just to return to the very point where they were: the supreme court.

My second comment concerns the majority's silence on how it would have left the First District's decision on the constitutional issue had the high court not resolved that issue. Justice Cantero suggested that the court should quash the DCA's resolution of that issue. But that would have left in place the Fourth District decision that the majority ultimately rejected, the decision holding this particular grandparent visitation statute constitutional. Perhaps an unspoken component to the majority's rationale to resolve the constitutional question was the notion that, on an issue affecting the fundamental right of privacy, and in particular the sensitive right to parent one's children, the court should favor resolving an issue where to do otherwise would let stand an erroneous decision that would, for the time being, control Florida law.

 
Supreme Court: Minute Entries Not Reviewable
In this case, the Florida Supreme Court held that trial court minute entries are not reviewable orders for purposes of a petition for writ of certiorari.

 
Back In Blog. So much for posting yesterday afternoon. What a packed day yesterday became. Since some folks out there (namely, the three judges from the panel, among others) actually know how yesterday's argument went for our client, I am not going to prognosticate. Back to some posts on Florida law, winding up this morning with Hunter Carroll's latest weekly trivia question.



Thursday, January 15, 2004
 
Wait, One Sad Post. I have enough battery power, and time, to post a link to one sordid story -- an AP piece about the sentencing of two Miami jurors who took bribes (in a federal case, no less) to acquit an accused drug kingpin in the mid 90's. What a travesty. You can read the details here.

 
Late Day For Posting. I am in Daytona Beach this morning for an oral argument at the Fifth District. I also made the inadvertent move of traveling without a power cord for my laptop, which has left me with very limited time for Internet access. As a result, I will not be posting today until mid-afternoon, after I arrive back in St. Pete. I hope everyone has a good morning, and thanks for stopping by this little corner of the blogosphere.



Wednesday, January 14, 2004
 
Everglades Case. Today, the United States Supreme Court will hear oral arguments in a significant environmental case that challenges the pumping of polluted water into the Florida Everglades. The Tampa Tribune ran this story on the case yesterday.

 
RLUIPA: Zoning Religion. Today's Miami Herald has this very interesting story about how the Justice Department has appeared in the case between the tiny town of Surfside and Jewish religious leaders who wish to hold religious services in a downtown building.

 
Alright, No One Gets Anything. Last month's Nativity scene brouhaha in Palm Beach has resulted in the elimination of all religious-based holiday symbols from the town's holiday display. No more Christmas tree -- the merchants who displayed it have decided to remove it. No more menorahs -- the town council voted to give them back to their donor. Most amazing, the folks who sued to push for the Nativity scene's inclusion apparently have no intent to abandon their suit. Hmmm. Read about it here in today's Palm Beach Post.

 
Pressure Works, Too. Apparently it was public pressure that convinced a billboard company's owner to remove a Florida Turnpike billboard that promoted a white separatist group. Read about it here in today's Orlando Sentinel.

 
Testing, Testing. The Broward County Public Defender's Office has stopped using psychology student interns from Nova Southeastern University to help evaluate defendants for trial. Apparently, the evaluations were being used as evidence. Read about it in this story in today's Sun-Sentinel.

 
Ah, Insurance. If you believe someone is at fault for your injuries, suing him or her sounds reasonable, at least in the abstract. But what if the person you are suing died in the accident, and your attorney makes statements to the effect that he is just covering the bases and hoping for an insurance settlement? The decedent's family described in this story in today's News-Journal feels insulted.



Tuesday, January 13, 2004
 
Rush News. The AP reports here that the Fourth District has ordered the circuit court hearing the Limbaugh matter to keep Rush's medical records sealed until the current appeal is concluded. That is entirely routine: the appellate proceeding will determine whether the state can lawfully examine Rush's records, and, until then, the court will preserve the status quo.

 
On Second Thought… Yesterday, the Eleventh Circuit released this decision which resolved a dispute between CSX and Garden City, Georgia. The case concerned the city's agreement to indemnify the railroad for losses involving a right of way on the railroad's property where the city installed water and sewer lines. Since the case turned on substantial and unsettled questions of Georgia law -- namely, could the city enter such an agreement in light of Georgia law's restriction that only the state legislature may waive sovereign immunity -- the federal appellate court certified two questions to the Georgia Supreme Court. That court answered those questions in the negative with respect to the city's authority, and based on those answers the Eleventh Circuit concluded the case with respect to that issue.

The case's focus on Georgia law led me not to post anything about it yesterday. I have rethought that, though, because a very similar case exists involving Florida law. Those that follow Florida law closely, or those who enjoy sovereign immunity law in general, may be interested to see how Georgia's case resolved and if Florida's case turns out the same.

Like the Georgia case, the Florida case is proceeding through the federal courts. It involves the City of Kissimmee and an indemnification agreement concerning a railroad crossing. A chief issue in the case is whether the city's utility company could enter an open-ended indemnification agreement in light of Florida law's restriction that only the state legislature may waive sovereign immunity. Given that significant and unsettled questions of Florida law controlled the case, the Eleventh Circuit issued this opinion, which certified a series of questions to the Florida Supreme Court. The Florida Supreme Court heard oral arguments in the case last June, and a decision from that court could come out at any time.

In the interest of full disclosure, I will point out that, while serving as Deputy Solicitor General of Florida, I wrote the Attorney General's amicus curiae brief to the Florida Supreme Court in this case. Personally, I find sovereign immunity to be one of the most interesting legal issues around, from minor nuances of state civil liability to the occasionally heady principles of the Eleventh Amendment. If anyone is interested in reading the briefs from the case -- and the State's brief does a moderately good job of setting out the basic Florida law in this area -- look here under case number 02-709.

 
Funding, Programming, and Policies. Those are the only things a church-state separation group is interested in with respect to the nation's first faith-based prison in Lawtey. Read about the group's massive public records request in this story from today's Times-Union.

 
Governor Ponders Appeal. Today's Sun-Sentinel has this story on Governor Bush's comments yesterday that he is considering an appeal from the Fifth District's recent decision that Florida law does not permit guardians to be appointed for unborn children. I discussed the decision at some length in this post from yesterday.

Note that the Sentinel's story refers to Judge Orfinger's opinion as the majority opinion. It was actually a concurring opinion, not the majority opinion.

 
Class Action Against Court Reporters? It would be a hefty understatement to say that I have from time to time criticized court reporters for squeezing extra pages out of a transcript. Techniques such as expanding margins, using lines with only one word, inserting line breaks at random, and inserting blank lines will, over the course of a trial or deposition transcript, add a significant number of pages to the product, and court reporters are generally paid by the page. So, it was with little surprise that I read this story in today's Miami Herald about a South Florida lawyer who on Monday filed a class action complaint against a court reporting service.

 
An Agreement of a Different Sort. Miami Herald columnist Leonard Pitts, Jr., has this piece today on a new sort of legal document, one that could have put to rest what really happened between Kobe and his accuser.

 
Even the "Air Paddle"? Today's Tallahassee Democrat has this story on how two-thirds of Florida's school districts still use corporal punishment, resulting in 11,000 spanking incidents just last year. No word on whether ye ol' air paddle is still in use.

 
Rush News. Strange days, indeed, sang a former Palm Beach County resident. The Fourth District has granted the ACLU leave to file an amicus curiae ("friend of the court") brief on the side of Rush Limbaugh. The radio mogul, historically a critic of the ACLU, is appealing from a trial court's decision not to preclude state prosecutors from examining Rush's medical records, and the ACLU agrees with Rush that such an investigation violates a citizen's right to privacy. The Palm Beach Post has the whole story here, and you can read the ACLU's press release on the matter here. Most peculiar, mama.

 
Uncountable Recounts? Well, maybe Florida has not taken every ambiguity out of the recount procedures for elections. Read more about it in this story from the Palm Beach Post.

 
What To Do With Jail Mail? The Bradenton Herald has this story on a 16-year-old's letter to a judge about a rape the young man is accused of having committed.



Monday, January 12, 2004
 
Eleventh Circuit News. Great news for Eleventh Circuit fans! The court has created a page on its Internet site -- right here -- that provides information on each case that is pending, on its merits, before the court en banc.

At the moment, this new page posts only one case, and the specific item offered is the clerk's letter to the parties identifying what issues should be addressed in briefs to the en banc panel. What an excellent aid to practitioners.

 
Schiavo News. A fast-approaching move in early February left me cleaning, packing, and doing all sorts of related activities at home this weekend, far from the blogosphere. So while yesterday's Florida papers ran this story from the AP concerning the Terri Schiavo saga, I didn't link or talk about it.

I now have a chance. A reader wrote in this morning and asked if the story correctly mentions the "presumptively unconstitutional" remark as coming from the Second District, rather than just Judge Baird. In short, the answer is a qualified yes.

Let me back up. A few weeks ago, Governor Bush filed a motion with Chief Judge Demers to have a guardian ad litem again appointed to advise the Governor on Terri. Late last week, Chief Judge Demers denied the motion. You can read that order here.

In denying the Governor's motion, Judge Demers explained that he had already appointed a guardian ad litem once and that the guardian ad litem's report had been delivered to the Governor, as required by the new law being challenged in the Schiavo case. Judge Demers also explained that, since he first appointed the guardian ad litem, the Second District has held that the law at issue is "presumptively unconstitutional." Based on that holding, Judge Demers concluded that the reappointment motion should be denied without prejudice to it being raised again if the law is ultimately found constitutional. In other words, before even considering whether to appoint a guardian ad litem again, Judge Demers is going to wait to see if the law survives Michael Schiavo's constitutional challenge.

So, did the Second District really say that the law is presumptively unconstitutional? In a way, the appellate court did, though the context was a bit different. In this decision, the Second District found no basis to disqualify Judge Baird for having commented on what he called the law's presumptive unconstitutionality. The appellate court even appeared to agree with Judge Baird's statement, saying that it had support in the Second District's earlier decisions involving the Schiavo saga and in controlling Florida case law. The court made clear, however, that while the new law permitting the Governor to order Terri's feeding tube reinserted impinges on Terri's fundmental right to privacy, this does not mean that law is actually unconstitutional. What it means is that the burden now shifts to the state to prove that the impingement is constitutionally permissible; otherwise, the law will be found unconstitutional. That's what is meant by calling the law "presumptively" unconstitutional.

 
Fifth District: Guardians for Fetuses. In last week's highest profile decision, the Fifth District on Friday held that Florida law does not authorize a court to appoint a guardian for an unborn child. The decision is available here. Judge Thompson wrote the majority opinion, which concluded that Chapter 744 of the Florida Statutes authorizes the appointment of guardians but does not authorize guardians for fetuses. The majority explained that the Florida Legislature will have to determine whether guardians should be appointed for the unborn.

Judge Orfinger concurred and wrote separately to explain that the court's opinion simply addressed whether the current version of Chapter 744 permits guardians for fetuses, not whether such appointments are constitutionally permissible in any or all situations.

Judge Pleus dissented. He wrote that it would be consistent with the Legislature's intent to construe the term "minors" under Chapter 744 to include fetuses, and he urged the Legislature to make that intent clear in the statute.

 
Fifth District: Sex Offender Probation Conflict. In this decision, the Fifth District held that Florida law requires sex offenders on probation to comply immediately with the terms of their release, regardless of whether the order of probation contains time restrictions. The court certified conflict with a 1990 decision from the Second District.



Friday, January 09, 2004
 
Friday Florida Law Answer. Since Florida became a state, the number of authorized justice positions has been 3, 4, 5, 6, and 7, but not in that order. The evolution of the number of authorized justices is detailed in the "History of the Florida Supreme Court" section of this account. The current number of authorized justices - seven - has remained the same since 1940.

The United States Supreme Court currently has nine authorized justices, the Chief Justice of the United States and eight Associate Justices. Florida, however, has never had nine authorized justices. Several years ago, there was talk of increasing the number of Florida justices to nine. In section 20 of this law, the Florida Legislature even commissioned a study of the Supreme Court of Florida's workload to better evaluate the "need" to add two justices. After diligent study, the Commission wrote this report. There has been no call to increase the number of authorized justice positions in Florida recently.

 
Friday Florida Law Trivia! According to article V, section 3 of the Florida Constitution, there are seven authorized justice positions on the Supreme Court of Florida. But that number has not always been seven. What was it previously? And before that? And…

The answer will be posted at approximately 4:45 p.m. EST today.

 
Trivia Note. Following a holiday hiatus, Friday Florida Law Trivia is back. Mr. Hunter Carroll will be blogging in to supply the questions. I haven't asked him yet if he has answers. Hopefully.

 
This Is Not A David Kelley Show… This story from the Bradenton Herald begins with this line: "A rookie assistant public defender who exchanged words with a judge was held in contempt, handcuffed and ordered to sit with her criminal client, who consoled her."

 
Fourth District: Perjury. We know that if you file a complaint with The Florida Bar against a lawyer, you are immune from any civil claim for defamation so long as you do not comment on the matter outside the grievance process. In this case, the Fourth District held that this immunity does not protect a complainant from a criminal charge of perjury.

 
Questions, questions. In an interesting case that may make mental health counselors sit up and take note, the First District held in this case that a negligence claim can stand against a counselor for interfering with a parent-child relationship where the defendant wrote a "to whom it may concern" letter about the plaintiff, accusing him of abusing his children. The letter was then used by the children's mother to obtain an injunction against the plaintiff without notice to him. The injunction was ultimately rescinded, and the plaintiff sued the counselor's employer. On appeal, the First District held that the claim was not one for medical malpractice (making the presuit notice requirements for such claims inapplicable) and that the impact rule did not bar any portion of the suit. On the latter point, the court certified the following to the Supreme Court of Florida as a question of great public importance:

DOES FLORIDA'S IMPACT RULE PRECLUDE THE RECOVERY OF DAMAGES FOR EMOTIONAL INJURIES IN A NEGLIGENCE CASE ALLEGING THAT THE DEFENDANT’S ACTIONS WRONGFULLY CAUSED THE PLAINTIFF TO LOSE CUSTODY OF HIS CHILDREN AND ALL OTHER PARENTAL RIGHTS FOR A SIGNIFICANT PERIOD?
Also, in this case, the Fourth District held that, to qualify under Florida's sexual predator law, the Jimmy Ryce Act, a defendant's current incarceration need not be for a sexually violent offense. Nonetheless, the court certified the following question to the Florida Supreme Court as one of great public importance:

DOES THE RYCE ACT REQUIRE THAT THE CURRENT INCARCERATION BE FOR A SEXUALLY VIOLENT OFFENSE?

 
First District: Settlement Proposals. If you are following the case law on what will invalidate a Rule 1.442 settlement proposal, be sure to check out this decision from the First District. The court held a group of defendants' offer invalid as ambiguous because it required the plaintiff to agree to an admission that the defendants had prevailed on the plaintiff's claims, and it was not clear how that admission might be used in litigating the defendants' counterclaims against the plaintiff. Hmmm.



Thursday, January 08, 2004
 
More Schiavo News. Though I still do not know whether Judge Baird has kept the Schiavo case, it may do some good to point out that changes in judicial assignments are a normal part of the administration of justice. There are numerous sections in the Sixth Circuit's judicial system -- civil, criminal, probate, family, and appellate are the major ones. Judges routinely rotate through the sections. Some might say this is a good thing because it helps keep the judges from getting "burned out" on a particular subject matter. If you have ever been involved in a family law case, you can probably imagine what it would be like to be the judge in such cases every day for years. Change is good.

Judicial assignments are made by the circuit's chief judge. Here in the Sixth Circuit (Pinellas and Pasco Counties), that person is Chief Judge David Demers. Looking at the Sixth Circuit's web site, it looks as if Judge Khouzam's assignment to section 20 in place of Judge Baird was ordered back in August. Check out this administrative order from Judge Demers. If you are wondering how you can know that Judge Baird was previously assigned to section 20, check out any order he released in the Schiavo case (such as this one). You'll see that the case number at the top of the first page ends in "-20." That's the section number.

So, for those wondering if some member of the executive or legislative branch ordered a change for political reasons, rest assured that has not happened. This change was ordered back in August by the chief judge. Besides, there is a strong chance that Judge Baird has kept the Schiavo case, given its posture and his announced readiness to rule on the pending summary judgment motion.

 
The High Tech Peeping Tom Act of 2004. That's what Tampa Tribune columnist Daniel Ruth calls a recently proposed state law that would cut down on a number of uses one could legally make of video cell phones. You can read the entertaining column here.

 
Schiavo News. I have received confirmation that Judge Baird has rotated from Pinellas County's civil bench to its criminal bench. His caseload has accordingly been transferred to the judge who now occupies Judge Baird's former civil chambers, Judge Nelly Khouzam. I do not know yet if Judge Baird has taken any special steps to retain the Schiavo constitutional challenge for purposes of ruling on the pending motions. I suppose we'll learn that soon enough.

 
Web Site of the Week! I'm honored that the Eleventh Circuit Library's web site has made Abstract Appeal the "Web Site of the Week."

 
There Ought To Be A Law. The Palm Beach Post's editorial board thinks so about motorized scooters. You can read the editorial here.

 
Voting For No One. Today's Miami Herald has this story on how a recent Broward County election to fill a state house seat resulted in 134 votes for no one -- using touch screens. Apparently, you can vote for no one in a given race. The story is peculiar -- it begins by saying that the election proved that no voting system is foolproof, but then the story quotes various people who theorize that the votes for no one may have been entirely advertent. All of the choices in this particular election were Republicans, and perhaps these 134 voters did not wish to select any of the candidates.

 
Disclosure Issues. Today's Times-Union has this story on a recent decision in which a DUI conviction was reversed because the pro se defendant was not sufficiently informed of the consequences of not retaining an attorney. The case was apparently decided by the First District on December 29, 2003, but, oddly enough, it does not appear on the First District's web site.

 
Rush News. Rush Limbaugh has requested the Fourth District to stay the release of his medical records to prosecutors until the appellate court concludes its review of the trial judge's decision to turn the records over. So says this story in today's Sun-Sentinel.

 
Secrets? We Got Secrets. Today's Sun-Sentinel has this story on the secret docket supposedly being run in the Southern District of Florida.

 
Eleventh Circuit: Proving Interstate Commerce. The Eleventh Circuit could have reduced a key part of its opinion in this case to a simple sentence directed to federal prosecutors: "Where you are required to prove that a firearm traveled in interstate commerce, please do more than point out that the gun bears a label naming an out-of-state town."

 
He Argued What? At long last, here is my blog on the remaining noteworthy case from the surprisingly long list of New Year's Eve releases. The case is a divorce case. The trial judge had entered an order that divided the parties' property and resolved issues such as alimony -- basically the order did everything except include language declaring the marriage dissolved. Both parties moved for rehearing, asking the court to amend the judgment to include language that the marriage was dissolved. The judge did so, but just before, the husband shot and killed the wife. The husband then argued that the wife's death caused the trial court to lose jurisdiction over the divorce (you can't divorce a dead person); thus, the amended judgment was a nullity and the parties were still married at the time of the wife's death.

Now, why do you think the husband wanted the parties to have been married at the time of death? Hmmm. Regardless, the trial court did not agree. She ruled that the original order was sufficient to divorce the parties, "magic words" or not. On appeal, the Fourth District affimed. You can read the decision here.

 
Hey, Legislature! Whenever a Florida judge sees fit to invoke Mr. Bumble's famed comment to the effect that, if such be the law, then the law is an ass, certain people should take notice. Surely the Florida Legislature. In some cases, perhaps the Florida Supreme Court.

With respect to the particular invocation I have in mind, the judge is Judge Winifred Sharp of the Fifth District, dissenting from an en banc majority's opinion in this case. The case concerns the Florida Birth-Related Neurological Injury Compensation Act (NICA) and an administrative law judge's decision that a young girl with cerebral palsy and extensive physical damage to her brain was nonetheless not mentally impaired as a result of her care at birth. Now, the girl's parents were arguing that she had no mental impairment, since such a finding takes her injuries outside NICA and permits the parents to sue the various medical personnel involved in her birth. On appeal, the Fifth District heard the case en banc, and a divided court ruled that the administrative law judge's finding was supported by competent substantial evidence and thus must be affirmed. NICA does not define what constitutes a mental impairment.

So where is the concern? Previously, the Florida Supreme Court decided a case involving a child with a very similar set of physical defects and where the administrative law judge had found that those physical defects produced conditions that amounted to mental impairment. The supreme court held that the ALJ's decision was to be affirmed because it was based on competent substantial evidence. Concerned about the differing results in the two similar cases, the dissenting judges in the new Fifth District case read the Florida Supreme Court's prior decision to adopt, implictly, a definition of "mental impairment" that should be applied in this case to achieve consistent results. Otherwise, the dissenters concluded, there is effectively no standard: so long as one side presents an expert saying the child has a mental impairment and the other side presents an expert saying the child does not, then the administrative law judge will simply be free to choose either ruling, without any further guidance from NICA and without interference by the appellate courts.

The majority opinion explained that fact-finders, whether they be judges or juries, often reach what appear to be differing results in what may appear to be but are not truly similar cases and that the role of the appellate courts is not to reweigh the evidence or ensure superficial consistency. This portion of Judge Griffin's majority opinion is particularly noteworthy:

Courts have always recognized that different juries may reach a different result on similar facts. It is common for us to see, for example, that juries have awarded significantly different sums for apparently identical injuries. We similarly see different outcomes when the fact finder is asked to determine whether a particular injury is "permanent" or "not permanent." These differences arise not because we have an "unprincipled, incoherent system" but because such differences can arise in a principled and coherent system where every individual is guaranteed an opportunity to lay his own case before an impartial arbiter of the facts. In most cases, this is a jury. In cases such as the one before us, the ALJ, as fact finder, brings his own background, training, experience and expertise to the task of weighing and evaluating very sophisticated evidence. The child’s advocate likewise brings his own communication and strategic skills to the fact-finding process; and finally, the evidence in each case will vary in its power to persuade. This will be especially true in cases where the opinions of experts are considered.

[A]s judges, we learn, early on, that there are always fact situations at the margins where it is very difficult to determine the side of a line on which a particular decision will fall. That is one reason why our review is limited to whether the decision was supported by substantial competent evidence. The Birnie ALJ considered the evidence given to him, weighed its credibility and reached a decision about Eric. Likewise, the ALJ in this case considered the evidence given to him, weighed its credibility and made a decision about Raven. Each judge weighed the evidence he was given and reached a result that the evidence supported. The fact that they were different results, even though certain of the evidence was similar, does not make one decision wrong and the other right. Evidence that can support a fact-finder’s conclusion is far different from evidence that compels a particular conclusion.
In a concurring opinion, Judge Torpy framed the issue in terms of judicial restraint. He explained that the result the court reached was legally correct, given the statutory scheme and controlling case law, though it was probably not the result the Legislature intended.

Hopefully the Legislature is paying attention to all this. Maybe NICA could benefit from a definition of mental impairment.



Wednesday, January 07, 2004
 
Phone Rate Appeal. Florida's PSC recently decided to raise consumers' phone rates, and today Attorney General Crist appealed that decision. The appeal stays the increase until the case is resolved. You can read the AG's notice here.

 
Gary Hearing Halted. The AP reports here that a hearing to determine whether famed Florida attorney Willie Gary and one of his law partners violated Florida's ethics rules ended midstream when a trial judge dismissed the matter.

 
Schiavo News. News in the Terri Schiavo case has been rare of late, as everyone waits for the Second District to resolve the appeals concerning venue and jurisdiction in the constitutional case. Today, though, the St. Pete Times reports here that Terri's parents have requested that a new guardian be appointed for Terri, that Jay Wolfson (who was previously appointed as a special guardian ad litem) be appointed to determine if Terri's marriage to Michael Schiavo can be dissolved, and that Wolfson be permitted to oversee swallowing tests to determine whether Terri can eat on her own.

 
More To Come… There are still two more noteworthy decisions from New Year's Eve, but time this a.m. is tight for me. I'll post about them later in the day. Before I go, though, I'll add one news post. It concerns the highest profile Florida law case of this last year.

 
Fifth District: Sovereign Immunity. Interested in when a municipality can be liable for the negligent actions of its chief building officer? Check out the discussion in this decision from the Fifth District.

 
Fifth District: DCA Jurisdiction. Appellate types who enjoy jurisdictional issues may wish to check out this decision from the Fifth District, which dismissed the portion of a criminal appeal in which the defendant challenged the adminstrative order that governed the trial judge's appointment. The court explained that only the state supreme court has jurisdiction to review judicial appointments.

 
Fifth District: Automobile as Dangerous Instrumentality. This case from the Fifth District has the potential to shake up Florida's common law on automobiles as dangerous instrumentalities.

The dangerous instrumentality doctrine essentially holds that certain items, such as automobiles, are just plain dangerous, and if you own them, you are generally responsible for harm they cause even if someone else uses them. So the owner of a car who allows another to drive it can be liable when the borrower causes an accident. The doctrine has limits, though, and some of them are explored by the Fifth District's decision in this case. In short, the court held that the doctrine is not limited to situations where the borrower of a car negligently causes an accident, but the doctrine does not encompass situations where the borrower intentionally uses the car as a weapon to cause harm to another. In reaching these conclusions, the court certified conflict with two other district court decisions, setting the case up for review by our state supreme court. The Fifth District's decision is well written and provides some excellent legal background on the dangerous instrumentality doctrine. A recommended read for everyone.

 
Catching Up. I'm still not fully caught up with the noteworthy decisions that were released on New Year's Eve. I hit a few yesterday from the Fourth District, and today I'll begin blogging by mentioning some from the Fifth.



Tuesday, January 06, 2004
 
Rush News. The problem with short stays in cases is that they quickly expire, and even if another is granted, there may be a break between one's expiration and the next one's commencement. Rush Limbaugh experienced this firsthand when the 15-day seal on his medical records expired before a new seal was ordered. The seal is in place to allow Rush a meaningful appeal from a trial court's ruling that local authorities can review the records while investigating Rush's prescription pill-buying activities. Read about it here in today's Sun-Sentinel.

 
Fourth District: Child Support. In all likelihood, this will truly disturb some people and be refreshingly logical to others: where a parent's parental rights are terminated, the parent cannot be required to pay child support. Read about it in this decision from the Fourth District.

 
Fourth District: Interest on Unearned Premiums. Is an insurer liable for interest on an unearned premium, such as where a policy is cancelled? Yes, under a common law claim for monies owed, according to this decision from the Fourth District.

 
Fourth District: Moving Borders. Florida is obviously a coastal state, and case law involving whether a ship sitting offshore lies within Florida or United States waters simply fascinates me. You may recall this opinion from the Third District back in November which decided that, for purposes of Florida tort law, Florida's territory extends to the greater of three miles or the edge of the Gulf Stream from Florida's eastern shoreline. That allowed the court to hold that a cruise ship doctor's alleged acts 11.7 miles off Florida's shores, at a point where the Gulf Stream began 14 miles offshore, occurred within the State of Florida. Now, in this case, the Fourth District has held that the eastern border of the United States is three miles from Florida's eastern shoreline, for purposes of permitting officials to search a vessel that has crossed America's border and may be carrying contraband or dutiable materials. The case involved the federal "border search exception" found here. Ouch.

 
Fourth District: Setting Off Nondefendants' Settlements. If you're interested in the recently evolving area on when nonsettling defendants can set off settlement amounts from a judgment, or if you're interested in how derivative liability compares to vicarious liability for purposes of joint and several liability, check out this decision from the Fourth District. Also worthy of note is that the case concerns a claim against an HMO for "negligently credentialing" a health care provider.



Monday, January 05, 2004
 
Happy, Happy. Joy, Joy. I hope everyone had a wonderful holiday weekend. As you can see, I took a break from blogging, which was good. I'm now charged up for a great 2004 filled with interesting legal news involving our sunny little state. The real job has me quite busy this morning, though, so the new year's substantive posts will not begin until later today.





 
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