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Wednesday, March 31, 2004
 
Still More Schiavo News, Part II
The blitz of Schiavo-related posts today wouldn't be complete without linking this story from today's Tampa Tribune.

 
I'll Be Watching For AbstracterAppeal.com
The title above will make sense if you read this interesting story from today's Tampa Tribune. The story concerns the Legislature's efforts to tighten the process by which citizens can try to amend the state constitution.

 
More Sixth District News
Today's Tampa Tribune has an editorial with a good dose of criticism for the current proposal to create a sixth district court of appeal. Read it here.

 
Still More Schiavo News
A reader has emailed me links to Mary Schindler's affidavit (here) and Heidi Law's affidavit (here). I now understand Judge Greer's decision.

Update: The Heidi Law affidavit referenced above was apparently not the one used in connection with the contempt motion. This one was. (And, yes, I still see why the judge ruled what he did.)

 
New Meaning to the Term "County Crime"
Today's Sun-Sentinel has this depressing story about how Palm Beach County's commissioners are looking into importing drugs from Canada, in violation of federal law. Apparently, the county officials believe no one will be prosecuted and that this makes violating the law all right. Unbelievable.

 
More Schiavo News
As some of you know, or could guess, moving to a new place and a very busy work schedule the past two months have made it tough for me to follow the trial court proceedings in the Schiavo matter. I'm going to try to catch up and provide some explanations on what seems to be going on.

We've had news recently on two fronts, one involving the Schindlers' motion to intervene before Judge Baird, and the other involving the Schindlers' motion asking Judge Greer to find Michael Schiavo in contempt of court. The Schindlers lost both motions. This post will address the latter item.


Here goes:

Back in 1996, Judge Penick entered an order in the guardianship proceedings that, among other things, required Michael Schiavo (1) to notify any nursing home caring for Terri that he has no objection to the nursing home discussing Terri's condition with the Schindlers, and (2) to inform the Schindlers of any "significant changes" in Terri's medical condition. You can read that order here.

Last month, the Schindlers filed a motion asking Judge Greer (who now has the guardianship case) to find Michael Schiavo in contempt of court for failing to comply with the 1996 order. The motion, which is available here, relates the following: (1) Michael has not given the Schindlers a written notification from him to the nursing home where Terri currently resides saying that the caregivers there may speak with the Schindlers; (2) on February 14 and 15, 2004, Terri vomited; and (3) Mary Schindler was told by Terri's nurses and physician that Michael will not permit them to discuss Terri's condition with her. The motion concludes by requesting that Michael Schiavo be held in contempt of court. The motion is signed by Mary Schindler, who swore its facts to be true, and the Schindlers' attorney, Pat Anderson.

A Florida judge has the inherent authority to punish persons , typically through imprisonment, for contumacious actions committed either within or outside the judge's presence. Contumacious acts are those that offend the authority of the court or interfere with the administration of justice.

Where a contumacious act occurs in the actual presence of the judge, and as a result the judge has firsthand knowledge of it, the form of contempt is referred to as direct contempt. Where the action takes place outside the judge's presence, and therefore the judge must determine that the supposedly contumacious act in fact took place, the form of contempt is referred to as indirect contempt.

Contempt is always serious. Where the point of a contempt proceeding is to punish a person (as opposed to getting the person to comply with an order), the offense is generally considered criminal contempt, and the same sort of protections that apply to an accused in a criminal case generally apply to the alleged contemnor.

Here, the Schindlers asked that Michael be found in criminal contempt -- they asked to have him punished. Typically, that means jail.

To help ensure that an accused, like Michael, receives due process, Florida's Rules of Criminal Procedure set out the procedure for handling criminal contempt proceedings. The proceeding begins when a judge issues what is called an order to show cause, and Rule 3.840(a) has this to say about when such orders may be entered:

The judge, on the judge's own motion or on affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring the defendant to appear before the court to show cause why the defendant should not be held in contempt of court.
Under this rule, a criminal contempt proceeding may begin when the judge acts either on his or her own motion or on the testimony of any person. As if the emphasized language isn't clear enough, in the case of a person's testimony, Florida case law requires that the testimony be sworn and that the witness have personal knowledge of the facts.

Judge Greer denied the Schindlers' motion, and you can read that order here. The order states that affidavits were submitted to the court by Mary Schindler and Heidi Law, and neither affidvait relates facts, based on personal knowledge, showing that Michael Schiavo violated the 1996 order.

Did Judge Greer get that right? I don't know. The judge refers to two affidavits -- a March 23, 2004 affidavit by Mary Schindler and an affidavit by Heidi Law. I have not seen either document. If anyone has copies of them or, better, links to them, please let me know. In the meantime, I can offer two comments: the sworn motion that Mary Schindler signed does not appear to satisfy the rule's requirements, and the judge's reason for denying the Schindlers' motion is certainly a valid one under the law.

So that's the scoop, from my perspective.

 
Schiavo News
Today's St. Pete Times has this update on Terri Schiavo's arm wounds. Apparently, the source of the wounds is still unknown.

More Schiavo news to come later this morning…

 
Sixth District
Have you ever met a lawyer who couldn't stop talking? I've met several who couldn't stop talking about the Legislature's current proposal to expand Florida's intermediate appellate court system to six districts. (Some might say I'm one of them.) This is Florida legal news of the largest magnitude, particularly given what some see as the accelerated, heavy-handed, and constitutionally questionable form of the current proposal.

You may know that, last week, the proposal was tagging alongside an appropriations bill. This week, however, the proposal to create a new Sixth District has been filed in the form of this House bill and this Senate bill. These are definitely worthwhile reads.

More to come…

 
Here We Go
It's already been a long morning at work, but I'm going to squeeze out some time in the next couple of hours to post on the most recent events in the Schiavo saga and a few other very important developments. Stay tuned.



Tuesday, March 30, 2004
 
Schiavo News
The AP has the latest news in the Schiavo case here. The report covers two fronts. First, the cause of the puncture marks recently discovered on Terri's arms is still unknown. Second, and this isn't entirely clear to me, it appears Judge Greer yesterday denied a request by the Schindlers for further, perhaps evidentiary, hearings on the issue of whether Michael Schiavo should be held in contempt for failing to share information on Terri's condition with her parents. Such sharing is required by a longstanding court order.

 
Asked And Answered?
The answer to last week's Florida law trivia question involved a proposed law that would (at least attempt to) eliminate the longstanding Florida practice of allowing a criminal defendant who presents trial testimony by no one other than himself to argue last during closing arguments. The impetus for the bill puzzled me, though, and in this post I questioned why this long-followed practice should be changed. I also asked anyone with any insight to please email it to me at Abstract Appeal.

Well, the good folks at Florida Today were kind enough to talk with the bill's sponsor, Rep. Carole Green, and Abstract Appeal reader (and Tallahassee attorney) Rob Telfer was kind enough to forward me this link to the resulting story. As you can see, Rep. Green indicates that she was motivated by a recent acquittal in a high-profile rape case and that she wants "to make sure we're getting to the truth." She also cites the current practice's 150-year-old tenure as impugning its validity, saying, "It has been on the books for 150 years . . . and 150 years ago a woman like me could never have served on a jury, and they were hanging people for stealing horses."

My thanks once again to Florida Today for speaking with Representative Green. I must wonder, though, why the Representative believes that "truth" is better expressed in the State's closing argument than the defendant's, especially where most if not all of the evidence presented in the case came from the State. It's a trial. Both sides want to win, and each side should be expected to deliver a closing argument that, within the bounds of ethics and the evidence, presents the jury with the most compelling reasons to find in that side's favor. Neither side should be presumed to be naturally more aligned with "truth." In fact, Florida law is clear that juries may not hold against a defendant the fact that the defendant has been charged. Both sides in a criminal trial should begin on even ground.

I suppose I'm more informed now about the reasons behind this proposal, but I am still unsure that a need for change exists.

Also, I have a new question: Who was the attorney in the high-profile case referred to by Representative Green? Whoever must deliver one heck of a closing argument.

 
Schiavo News
Terri Schiavo was taken to a hospital yesterday because of puncture wounds in her arm, according to this story in today's St. Pete Times. At the moment, the source of the wounds is apparently unknown.

 
Introducing Carlie's Law
Today's Bradenton Herald has this story on a bill making its way to Congress in the wake of the Carlie Brucia tragedy. The proposed law would apparently tighten requirements for supervised released and expand the grounds for mandatory revocation of probation. The story also discusses a proposed Florida law that would change the criteria for determining whether a person on probation is a risk to the community.

 
Second District: More Attorney's Fees
Rule 1.525 of the Florida Rules of Civil Procedure imposes a 30-day requirement for motions for attorney's fees following entry of a judgment. In this case, the Second District made clear that this rule applies in family law cases. The court also held that fee requests under section 61.16 must be founded on a claim for fees in the requesting party's pleadings.

 
Second District: Appellate Attorney's Fees and Law of the Case
Does an appellate court's ruling on a motion for attorney's fees based on an offer of judgment constitute law of the case on the offer's sufficiency? Yes, said the Second District in this interesting case. The court went on to conclude, however, that its earlier decision to grant an unopposed motion for appellate attorney's fees should not prevent the court from reaching a contrary decision on review of an award granting trial court attorney's fees, based on recent case law on offers of judgment. Ub dissent, Judge Stringer argued that the initial decision was never law of the case regarding the offer's sufficiency.

 
First District: Employing University Employees
If you work for a state university, you may be interested in this decision from the First District, which held that the public employer of those who work at each state university is the individual Board of Trustees for that university. The case includes a brief account regarding the demise of the old Board of Regents.

 
Second District: Tax Exemptions
If a charitable organization is constructing a building that will be exempt from property taxes, is the property tax-free during the construction process? No, as explained in this decision from the Second District.



Monday, March 29, 2004
 
Cases, Cases
Where did the case law go? This weekend I managed to catch up on most of my reading, but I didn't have time to blog the interesting recent cases. Expect short posts on cases routinely over the next two days.

 
Conflict of Interests?
As a new condo owner -- Debbie and I love living in downtown St. Pete -- I'm intrigued by this story in today's Sun-Sentinel. The story describes how Florida law permits condo association attorneys to collect what could be considered quick fees for sending form letters when residents are 15 days or more late on an association payment. At the same time, I'm an attorney, and the story paints attorneys in a rather poor (and somewhat undeserved) light.

By the way, the House and Senate versions of the bills the story references can be read here and here.

 
Time For A Change
The Palm Beach Post has this interesting story on a proposed bill to root out and change racially offensive local geographic names as they're officially recognized by the state. A story and a proposal worth reading.

You can check out the current House and Senate versions of the bill here and here.



Saturday, March 27, 2004
 
Schiavo News
Today's Sun-Sentinel has an update on a hearing held yesterday before Judge Greer in the Schiavo saga. According to the story, available here, Judge Greer is contemplating further hearings to detemine whether Michael Schiavo is violating a court order to share information on Terri's condition with her parents.

 
At Least She Won The Contest
According to this story in today's Sun-Sentinel, the Sixth Circuit has vacated an injunction that blocked numerous web sites from showing a certain wet t-shirt contest video. The video was apparently shot in Key West and the subject was a Cincinatti newswoman who later sued to block the video's broadcast. There's a lesson to be learned here about public displays, especially when you know people are taking pictures.

 
Got Mold?
Some folks think the Manatee schools do, and according to this story in today's Bradenton Herald, they're getting ready to sue over it.



Friday, March 26, 2004
 
Thoughts on Trivia
Hunter's question and answer this week were interesting, especially about the proposed law. I can't help but wonder, though, about what prompted the proposal. I am a civil attorney by most definitions, but my understanding is that the law on criminal closings has been the way it is now for a long, long time. If anyone has any idea what's going on here, please send me an email.

 
Friday Florida Law Trivia Answer
In a Florida state criminal prosecution, one side gives the first closing argument, the other side then gives its closing argument, and then the first side gets to give a "rebuttal" closing argument. The rebuttal argument is the "last word" given to the jury by the attorneys. Many people believe that having the last word is very important to their case. So who gets the last word?

The answer depends on the events at trial. If the defendant presents no testimony other than his or her own, then the defendant has the right to give the first and rebuttal closing arguments, with the State going only once, in the middle. If, however, a defendant presents testimony from someone else, the State is then entitled to present the first and rebuttal closings, and the defendant goes only once, in the middle. This procedure is set forth in Florida Rule of Criminal Procedure 3.250.

So what changes might be on the horizon? This story from the News-Press reports on a proposed House bill (the Senate companion bill is here) providing that the State shall be entitled to the first and rebuttal closings regardless of what testimony a defendant presents. This portion of the bill would take effect upon becoming a law (meaning, majority vote in each house, plus governor's action). A second portion of the bill would repeal Rule 3.250 if "two third vote of the membership of each house" voted for it and it otherwise became law.

This bill will present some fascinating legal issues, should it become law. The rub here is that the Florida Supreme Court has the constitutional authority to make procedural rules for the courts, which the Legislature may repeal -- but not enact -- by a two-thirds vote of the membership of each house. The Legislature has the constitutional authority to enact substantive law. So, if the bill is enacted, expect a challenge in which a defendant contends the order of closing arguments is procedural and that the law is constitutionally invalid. The State will argue that the law is substantive.

While I have not independently verified the cites and I express no opinion on the merits, a good overview of these issues may be found in a deftly written staff analysis to the bill, available here. Have a good weekend.

 
Abundance of Riches
Looking over the case law that I've not blogged in the last week or so, wow -- there's a little something for everyone, and it's definitely looking like after-hours work for me. So maybe what I'll do is just start with some interesting news items…

First up, this story from the Associated Press, which reports on a bill that would make hazing a crime in Florida -- a third-degree felony for instances resulting in injury and a first-degree misdemeanor otherwise. This only begs the question: what's hazing? You can read the proposed answer here, though I won't promise that you'll find it helpful.

Also, today's Tallahassee Democrat has an interesting story on the push from Governor Bush and House Speaker Johnnie Byrd for a constitutional amendment limiting the amount of money attorneys may receive from their clients' recoveries in medical malpractice cases. Others apparently feel last summer's medical malpractice reforms were enough for now and should be given time to work. You can read the story here.

 
Friday Florida Law Trivia!
In a criminal prosecution in a Florida state court, which party has the "right" to give the "final" closing argument -- the State or the defendant? What changes might be on the horizon?

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

 
Trivia Coming Up
It turns out Hunter has his weekly question all ready to go. It's in two parts, and you're really good if you know both answers.

 
Hello Again
A good morning for everyone, I hope. Whenever I take a break from the blog, it's a safe bet that someone's about to get hit with a rather in-depth brief. In this case, it's one of the Florida district courts, and I'm already eager to see how things play out down the road. More on this later, perhaps.

Well, it's certainly time to blog again, and as you might guess, I'm raring to go. There's much to talk about concerning Florida law of late. First, though, I'm going to check on Mr. Hunter Carroll to see what sort of Florida law trivia he's cooked up this week. See you later this morning.



Wednesday, March 24, 2004
 
Blogging Break
To state the obvious, the day job has me consumed for the time being, so I don't expect to do much blogging today or tomorrow. The good news is that the cases I'm working on involve fascinating legal issues. See you soon.



Tuesday, March 23, 2004
 
Not So Important After All
I routinely post when the district courts of appeal certify questions of great public importance to the Florida Supreme Court. Perhaps I should also post when the Supreme Court decides those questions are not so important, as the court just did regarding the Fourth District's decision in Farinas v. Florida Farm Bureau. There, the Fourth Distrct certified the following question:

IN AN AUTOMOBILE ACCIDENT SCENARIO INVOLVING CLEAR LIABILITY, MULTIPLE CLAIMS, AND INADEQUATE POLICY LIMITS, DOES INSURANCE GOOD FAITH LAW REQUIRE THAT AN INSURER REASONABLY INVESTIGATE ALL CLAIMS PRIOR TO PAYMENT OF ANY CLAIM, KEEP THE INSURED INFORMED OF THE CLAIMS RESOLUTION PROCESS, AND ATTEMPT TO MINIMIZE THE MAGNITUDE OF POSSIBLE EXCESS JUDGMENTS AGAINST THE INSURED?
The Farinas decision (which answered the above question in the affirmative) is available here, the order certifying the above question can be found here, and the Supreme Court's recent order declining to answer the question is available here.

By the way, three justices dissented from the declination order.

 
Pleading Punitives
The Palm Beach County circuit judge hearing the high-profile claims of over 60 plaintiffs suing Menorah Gardens has denied their motion for leave to seek punitive damages, according to this story in today's Palm Beach Post. From the story, it seems the plaintiffs tried to make their prima facie showing of conduct supporting a punitive damage award by presenting general evidence of the funeral home's conduct, rather than evidence specifically applicable to each plaintiff.



Monday, March 22, 2004
 
Sixth DCA?
I heard this afternoon that a proposed bill is making its way around Tallahassee that would legislatively create a sixth district court of appeal. The new district would cover Florida's Tenth, Twelfth, and Twentieth Circuits, with its headquarters in Lakeland.

When I get more information or a link, I will post it. Meanwhile, if you've never thought about whether the Legislature has the constitutional authority to do such a thing, start thinking…

 
More Thoughts…
I'd like to thank the numerous people who wrote in to Abstract Appeal today to comment on the preceding post. Several folks mentioned that there are circumstances under which a public official can bring a court challenge against the constitutionality of a governing law. That is correct. Most of those exceptions, however, involve defensive positions that officials may take, where others have already brought the matter to court or the official must act to prevent harm to his or her office. The law in this area is designed to discourage officials from actively seeking to nullify controlling law.

The point of my earlier post was not to examine the instances in which public officials can bring court actions. They exist, and if you are a public official, consult counsel on precisely what actions are appropriate when you disagree with a law. The point of my post was to try to disspell the myth that any Florida public official, under the pretense of upholding the Constitution, can simply ignore a law whenever he or she believes it is unconstitutional.

 
More on Gay Marriage
You may recall my comments from this Abstract Appeal post last week about how Key West officials are dutifully following the Florida law that confines marriage to a union between one man and one woman. Well, I extend the same compliments to officials in Orange County, based on this story from the AP.

In related news, the St. Pete Times has this story on Tampa-area residents' efforts to change Florida's law on who can be married. That's the way the system should work -- officials follow the law, citizens voice their disapproval, officials reconsider the law.

By the way, last week, after I posted my compliments for the Key West officials who disagree with Florida's marriage laws but nonetheless continue to follow them, a South Florida lawyer wrote in to Abstract Appeal to ask about what a civil official ought to do if the official believes a law is unconstitutional. Generally speaking, the answer is this: in Florida, a public official -- whether a local or state offical -- should follow the law as it stands unless that law has been declared unconstitutional by a controlling court decision. With rather limited exceptions, public officials have no standing to challenge the constitutionality of law in court, and they never have the ability simply to declare a law invalid -- the job of a public official is to follow the law.

The principles at work here date back to the 1922 case of State ex rel. Atlantic Coast Line Railroad Co. v. Board of Equalizers, where the Florida Supreme Court considered whether public officials may declare laws unconstitutional. The following are excerpts from that case:

Every law found upon the statute books is presumptively constitutional until declared otherwise by the courts… [As for an act] not having been declared unconstitutional by the courts, ministerial officers must obey it, until in a proper proceeding its constitutionality is judicially passed upon.

* * *
The contention that the oath of a public official requiring him to obey the Constitution places upon him the duty or obligation to determine whether an act is constitutional before he will obey it is . . . without merit. The fallacy in it is that every act of the Legislature is presumptively constitutional until judicially declared otherwise, and the oath of office 'to obey the Constitution' means to obey the Constitution, not as the officer decides, but as judicially determined. The doctrine that the oath of office of a public official requires him to decide for himself whether or not an act is constitutional before obeying it will lead to strange results, and set at naught other binding provisions of the Constitution.

It is contended that an individual may refuse to obey a law that he believes to be unconstitutional, and take a chance on its fate in the courts. He does this, however, 'at his peril'; the 'peril' being to suffer the consequences, such as fine or imprisonment, or both, if the courts should hold the act to be constitutional. A ministerial officer refusing to enforce a law because in his opinion it is unconstitutional takes no such risk. He does nothing 'at his peril,' because he subjects himself to no penalty if his opinion as to the unconstitutionality of an act is not sustained by the courts. It is the doctrine of nullification, pure and simple . . . .

The right to declare an act unconstitutional is purely a judicial power, and cannot be exercised by the officers of the executive department under the guise of the observance of their oath of office to support the Constitution.
Further along in the same case, the Florida Supreme Court adopted this point made by the Illinois Supreme Court:

To the law every man owes homage, 'the very least as needing its care, the greatest as not exempted from its power.' To allow a ministerial officer to decide upon the validity of a law would be subversive of the great objects and purposes of government, for, if one such officer may assume infallibility, all other like officers may do the same, and thus an end be put to civil government, one of whose cardinal principles is subjection to the laws.
94 So. 681, 682-84.

I will note that there are distinctions to be drawn where an official has discretion to enforce the law, rather than where an official must merely follow it. In the case of gay marriage, though, there is no enforcement issue. It is simply a matter of following the law's requirements.

 
Hip-Hop Reports
Remember the stories about how Miami and Miami Beach cops keep track of hip-hop stars and their entourages when they visit South Florida?

 
A Teacher Walks Into A Bar…
It's Super Bowl Sunday, and when a fourth-grade teacher flashes her top at a local bar, a "friend" catches it on film. Eventually the pic makes its way to school authoriities, who have since placed her on leave. The teacher now intends to sue. All that according to this story in yesterday's Tampa Tribune.



Friday, March 19, 2004
 
Friday Florida Law Trivia Answer
In the event of vacancies in the offices of both Governor and Lieutenant Governor, this statute provides that the next in the executive succession line is the Secretary of State, then the Attorney General, then the Comptroller, then the Treasurer, then the Education Commission, and then the Agriculture Commissioner. If there are vacancies in each of those offices, the Legislature would convene and elect a Governor by a majority vote of each house.

This succession line was established in 1970 at a time when each of these six positions was a constitutional one elected by statewide vote. Collectively, these six elected officials sat as the Cabinet, which shared executive power with the Governor -- so it made sense to name the six positions as the Governor's successors.

In 1998, however, Florida voters approved a constitutional revision to "shrink" the Cabinet and vest more executive power in the Governor. Today, there are only three elected cabinet positions: the Attorney General, the Chief Financial Officer, and the Commissioner of Agriculture. This change in the composition of the Cabinet clouds the line of succession, which the Legislature should clarify.

Have a wonderful and safe weekend everyone. Hunter.

 
Friday Florida Law Trivia!
We talked yesterday about the succession of Florida's chief justices. Speaking of succession, who becomes Governor of Florida should both the office of Governor and Lieutenant Governor be vacant? And after that...And after that...

I'll post the answers about 4 p.m. today.

 
License Plate Troubles… For Want Of A Lawyer
Earlier this week, the AP ran this story about a Tampa-area man who was ticketed for improperly displaying a license plate. What did he do? Well, his New York Giants license plate frame obscured the words "Sunshine State" at the bottom of his license plate, in supposed violation of this Florida statute.

The story attempts to explain Florida law this way: "State law requires that everything on a plate - numbers, letters, expiration sticker, and words across the top and bottom - be visible from 100 feet. If they're not, a motorist can be cited…" An Abstract Appeal reader disagrees, though, and he wrote in to tell me about it. David Warren writes that, in 1997, Florida's Fifth District held that the law does not apply to "everything on a plate" -- it applies only to "identification marks." The Fifth District case concerned a license plate frame that obscured the county name found at the bottom of a tag. The Fifth District held:

The state has cited no authority for the proposition that obscuring the county name in such a fashion violates section 316.605. The state relies only on the language of the statute. We agree that in using the term, "identification mark" as applied to state license plates in section 316.605(1), the legislature did not intend to include the name of the state and county at the top and bottom of the plate that identify the name of the state or county. Although the language of section 316.605 is broad, the overall statutory scheme suggests that the "identification marks" that must be visible and legible are those that "identify" the "registration." See § 320.06(1)(b), (3)(a) (1995).

The use of license plate rims or frames which obscure the county name appearing at the bottom of the plate is a common practice of long-standing among the citizens of our state. They are frequently supplied by car dealers and many otherwise law abiding citizens install them specially to show allegiance to a club, fraternity, college or sports team or, as a means of other self-expression. It is extremely odd that such an obvious and prevalent practice has generated no reported decisions and no enforcement that the state can identify. Absent any more clear prohibition against this activity in Florida statutes, we decline to declare it a traffic infraction.
State v. St. Jean, 697 So. 2d 956 (Fla. 5th DCA 1997).

The county name at issue in this case was most likely located in the same place that contained the words "Sunshine State" on the bottom of the Tampa man's plate, and, as David points out, if a county or state name is not an identification mark, then it is hard to view "Sunshine State" as one. Unfortunately, though, the Tampa man seems not to have been represented by counsel.

 
Med Mal Reform
The AP has this story on how, despite one leader's wishes, some in the Legislature feel there is no immediate need to continue pushing medical malpractice reform.

 
Coronet Suit
A rather large suit was apparently filed yesterday in Hillsborough County against phosphate processor Coronet Industries, according to this story in today's St. Pete Times.

 
Rush News -- Gotcha!
Rush's attorneys have pulled a "gotcha!", according to this story in today's Palm Beach Post. The story refers to an argument in the reply that Rush's attorneys filed yesterday in the certiorari proceeding pending before Florida's Fourth District. To be more specific, in response to the state's argument that the right of privacy is no longer implicated once the state complies with the minimum requirements of the Fourth Amendment, Rush's attorneys relied on a 2002 Fourth District decision that confirmed the state's ability to adopt laws that provide citizens stronger search and seizure protections than the Fourth Amendment offers. Gotcha? Maybe. You can read the reply for yourself -- it's available here.

 
Foul Language… Close to Home
The St. Pete Times has this story today on St. Petersburg's intent to fine promoters of downtown park shows when the performers use foul language. $500 per profanity. As a new resident of downtown St. Pete, I have a strong suspicion that folks around here will be pleased by anything that cleans up the language.

 
Manatee Protection
Today's Sun-Sentinel has this story on bills pending in Tallahassee that could reduce the protections given to Florida's official marine mammal.

 
News, News, News
Lots of intersting news today. Some new, some not-so-new. Time to try to hit it.

 
Supreme Court: Sexual Predator Law
Yesterday, in this case, the Florida Supreme Court held that the Florida Sexual Predator Act is unconstitutional to the extent it considers a person a "sexual predator" even though that person's crimes had no sexual element. The court clarified that the issue is one of substantive due process, not equal protection, and that the Act implicates a person's constitutionally protected liberty interests. The defendant in the case was convicted of kidnapping a minor who was not his child, and there was indisputedly no sexual element to his crime. Under those circumstances, the court held, applying the Act to him violates due process.



Thursday, March 18, 2004
 
Learn about the Florida Supreme Court
In my earlier post this afternoon, I referenced a law review article written by former Justice Kogan and Public Information Officer Waters concerning the operation of the Supreme Court of Florida. A friend emailed me a link to the article this evening, which I appreciate. You may find the article here.

As I wrote earlier today, anyone interested in gaining an in-depth understanding of the Court should read this article.

 
Electing the Chief Justice
In an earlier post today, Matt asked whether Chief Justice Anstead's service as the Chief Justice would be longer than any other justice in recent years by virtue of the leap year and Chief Justice-elect Pariente's decision to take the oath on July 2, 2004, instead of July 1 (as detailed in this press release). This question, besides eliminating it as tomorrow's trivia question, is an excellent opportunity to discuss how a justice is elected as the Chief Justice.

The direct answer to Matt's question is no, Justice Anstead's tenure as the Chief Justice will not be the longest in recent memory. That distinction goes to former Justice Grimes, followed closely by former Justice Kogan. I'll explain, but let me first give a brief history.

The Florida Constitution does not provide for any set tenure for the Chief Justice. Rather, this provision provides that the Chief Justice "shall be chosen by a majority of the members of the court." In other words, the Florida Supreme Court theoretically could have a new Chief Justice every day or choose to retain a justice as the Chief Justice longer than two years. Historically, though, the Court has followed a practice of selecting a new Chief Justice for a two-year term commencing July 1 of every even year. The justice selected, by custom, is the most senior justice who has not previously served as the Chief Justice. See Gerald Kogan and Robert Craig Waters, "The Operation and Jurisdiction of the Florida Supreme Court," 18 Nova L. Rev. 1151, 1180 (Winter 1994). According to this article, this selection process reduces internal politics concerning the selection and prevents any one justice from taking indefinite control of the administrative functions of the Court.

Now, back to Matt's question. Florida's first female Chief Justice, Justice Rosemary Barkett, was supposed to be the Chief Justice from July 1, 1992 through June 30, 1994. While then-Justice Barkett was serving as the Chief Justice though, President Clinton nominated her to the Eleventh Circuit Court of Appeals. Justice Barkett resigned from the Florida Supreme Court and assumed her federal judgeship on April 21, 1994, leaving two months remaining in her tenure as the Chief Justice. It was decided that Justice Grimes and Justice Kogan "split" the remaining two months. Justice Grimes served as the Chief Justice from April 21, 1994 until May 31, 1996 -- a little more than one month more than two years. Justice Kogan then became the Chief Justice, and he served until June 30, 1998 -- one month longer than two years.

As a side note, I tried unsuccessfully to find a web site link to the law review article I cited above. That article is an excellent overview of how the Court works. It was authored by former Justice Kogan, and his then-staff attorney (and the Court's current Public Information Officer) Craig Waters. While it is dated in some instances, I would commend it to anyone who has a strong interest in learning more about how the Florida Supreme Court operates.

 
A New Chief for the Third District
According to a friend in Miami, the Dade County Bar Association held a "Breakfast With The Judges" meeting this morning featuring Judge Levy of the Third District. At the meeting, Judge Levy announced that he would become the court's new chief judge when Chief Judge Schwartz retires in the coming year.

So we'll soon have a new chief in the Third District. Chief Judge Levy.

Now, let me try to put this in perspective for those who may not follow Florida's chief judgeships. Chief Judge Schwartz has something in common with Pope John Paul II: they've held their respective positions for as long as many of us can remember. Chief Judge Schwartz was elected chief by his fellow judges in 1983. He has been repeatedly reelected to that position since that time. (For those curious, PJPII was elected Pope by the College of Cardinals in 1978.)

(note: this post was corrected to reflect who actually held this morning's meeting)

 
Congrats!
Congratulations to Justice Pariente, who on July 2, 2004, will become Chief Justice of the Supreme Court of Florida. You can read the court's press release on her selection here.

As an aside, the press release indicates that Justice Pariente will not be sworn in until July 2, rather than July 1, so that on July 1 the entire court can focus on honoring those responsible for implementing the shift toward unified judicial funding. That means Justice Anstead, the current chief justice, will have served a tiny bit more than a two-year term as chief. His term also gained a leap day this past February 29. Hmmm. Maybe that will make a modern record for days served? Perhaps Hunter can figure that out. I know he's working on a trivia question for tomorrow.

 
Fourth District: Sex Offense Creates Strict Liability
Florida law (specifically, this one) makes it unlawful for a person 24 years of age or older to engage in sexual activity with a person 16 or 17 years old. In this case, the Fourth District confirmed that this is a strict liability offense -- ignorance of the minor's age is no defense, and the state need not prove the defendant intended to engage in sexual activity with a 16- or 17-year-old person

 
Chief Judge Farmer: Reviewing the Standards of Review
In this criminal case involving a trial court's decision to preclude certain cross-examination of state witnesses, Chief Judge Farmer of the Fourth District has invited the Florida Supreme Court to reconsider the standards of review associated with trial court evidentiary decisions. A two-judge majority in the case held that the trial court did not abuse its discretion in precluding the testimony at issue. Dissenting, Chief Judge Farmer offered some systemic reasons to revamp the current evidentiary review standards, with a focus on creating a more principled state-wide evidentiary system. Here are some excerpts from the dissent:

With complete respect for the supreme court, I should like to suggest the possibility that the court may have erred in adopting abuse of discretion as the primary or only standard of review for evidence decisions. For I have come to believe that the standard of review for rulings on evidence ought to be primarily de novo or, under certain circumstances, a mixture of de novo and abuse of discretion.
* * *
Defenders of the system of broad appellate deference to individualized decisions on evidence should confront the question whether this standard of review has a tendency to "thwart the litigants' legitimate appellate rights ." 696 So. 2d at 1104. Many cases turn directly on some specific piece of evidence admitted or excluded. If there are good reasons for admitting or excluding a piece of evidence, the reasons should be equally good in most, even if not all, cases having the same or similar circumstances. This thought undoubtedly lay behind the supreme court's own determination that "[W]here evidence tends in any way, even indirectly, to establish a reasonable doubt of defendant's guilt, it is error to deny its admission." [e.s.]). Rivera v. State, 561 So. 2d 536, 539 (Fla. 1990). I therefore believe that it is time for the supreme court to rethink its formulation of the sole standard of review for the admission or exclusion of evidence.

It is time to retreat from the notion of broad discretion in trial judges and to adopt a standard recognizing that most evidence decisions express a system-wide application as to what is permissible evidence in our courtrooms.
I highly recommend reading the entire dissent.

 
Third District: Medicaid Statute Unconstitutional
It's not often you see a district court decision that the Florida Supreme Court will have to review, but here's one: in this case, the Third District declared an anti-kickback portion of Florida's Medicaid law unconstitutional, finding the state law to be preempted by federal law on the same subject.

 
Third District: Nonfinal JCC Orders
Nonfinal orders entered by a judge of compensation claims are enforceable by the judge, not the circuit court. Read about it in this case from the Third District.

 
Third District: Preserving Objections In Jury Selection
The Third District offers a reminder in this case on how to preserve an objection to a denial of a motion to strike a prospective juror for cause.



Wednesday, March 17, 2004
 
Eleventh Circuit: Sending a Message
How much can you pack into a dissent from a vote not to en banc a decision? Lots, as shown in this case by Judge Tjoflat's 80-page dissent from an en banc motion's denial. You may recall the panel decision, available here -- it held that with the enactment of 28 U.S.C. § 1367, Congress permitted district courts sitting in diversity to exercise supplemental jurisdiction over class members' claims that do not satisfy the amount-in-controversy requirement generally applicable to diversity plaintiffs. The circuits are split on this issue, and the dissent from the en banc denial urges the U.S. Supreme Court to take the case. I suspect they'll notice this dissent.

Judge Tjoflat's opinion offers a wealth of interesting points, procedural and substantive. (I particularly like footnote 6, which discusses how the Eleventh Circuit's en banc polling procedure differs from that of most other circuits.) It's highly recommended.



Tuesday, March 16, 2004
 
Key West on Gay Marriage
Florida law is clear that a marriage will be recognized by the state only where it is between one woman and one man. You can read the relevant statute here. Why bring this up? Well, according to this story in today's Miami Herald, Key West political leaders are about to declare their disagreement with the policies underlying this law, but apparently no city official is going to attempt to perform unlawful marriage ceremonies.

The Key West leaders should be given credit for recognizing what some of their counterparts in other states have refused to acknowledge: the legitimacy of controlling state law. We are all free to disagree with the law, and we all will from time to time on one subject or another, but everyone -- and especially a public official -- has the responsibility to follow the law as it stands.

 
Controlling Homeowners' Associations
Yesterday, Abstract Appeal included a post on a proposed bill to rein in Florida's condominium assocations. Here is a story in today's Sun-Sentinel on a similar proposed bill regarding homeowners' associations.

 
Juvenile Justice?
According to this story in today's Miami Herald, some want Miami-Dade prosecutors to stop their practice of getting juveniles to waive their right to spend no more than 21 days in jail pre-trial in return for not being charged as an adult.

 
Adult Entertainment Ordinance Challenge
This story in today's Bradenton Herald offers a brief discussion on Manatee County's efforts to appeal this Eleventh Circuit opinion to the United States Supreme Court. The circuit court opinion predates Abstract Appeal, so I have no blog on it, but to sum things up briefly, the case concerns a First Amendment challenge to the county's adult entertainment ordinances. The circuit court's decision reversed a summary judgment in favor of the county, remanding for further proceedings on the plaintiffs' challenge.

 
Attorney's Fees Constitutional Limitation: Speak Up
Last week, Abstract Appeal offered this post about how Florida's Attorney General has referred a proposed constitutional amendment to the Supreme Court of Florida for single subject and title/summary review. The proposed amendment would limit the amount of attorney's fees that may be collected from an injured claimant. On Thursday, the Supreme Court set the matter for oral argument on June 8, 2004, and invited any interested person to file a brief and request to be heard at the argument. You can read the court's order here.

Safe to say that the plaintiffs' bar will be highly interested in this proposal.

 
Name Change? Give Up Those Prints
A bill being floated in Tallahassee right now would require persons changing their names to submit their fingerprints to the state and report whether they've been arrested, according to this report from the AP. There would apparently be an exception for change associated with marriage or adoption.

 
Second District: Failure to Prosecute
If you are interested in a summary of the law on when a failure to prosecute can be excused based on the pendency of related cases, check out this decision from the Second District.

 
Second District: Tardy Briefs
Appellate lawyers: in a circuit court appeal from a county court order, if the circuit court dismisses the appeal for failure to timely file an initial brief, can you reverse that decision through a petition for writ of certiorari to the local district court? You will find the answer in this decision from the Second District. You will also find an interesting discussion about how the Second District views the law on dismissing appeals based on missed filing deadlines.

 
Second District: Burglary Elements
In this decision, the Second District joined the First District (remember this case?) in certifying the following to the Supreme Court of Florida as a question of great public importance:

HAS SECTION ONE OF CHAPTER 2001-58, LAWS OF FLORIDA, LEGISLATIVELY OVERRULED DELGADO V. STATE, 776 SO. 2D 233 (FLA. 2000), AS TO CASES NOT FINAL AT THE TIME OF SUCH DECISION IN WHICH THE OFFENSES WERE COMMITTED ON OR AFTER FEBRUARY 1, 2000, THEREBY PERMITTING A TRIAL COURT TO INSTRUCT A JURY THAT IT MAY FIND A DEFENDANT GUILTY OF BURGLARY, DESPITE EVIDENCE SHOWING A LEGAL ENTRY INTO THE PREMISES AND THAT AN OFFENSE WAS COMMITTED THEREIN WHILE THE DEFENDANT REMAINED WITHIN NON-SURREPTITIOUSLY?
You may recall that, in Delgado, the supreme court held that where someone commits a burglary by remaining in a dwelling (as opposed to entering the dwelling), the act of "remaining" must be done surreptiously. The Legislature has since disagreed and passed this law, which expressly seeks to overrule Delgado and return the law, retroactively, to its state prior to that decision's release. Significant issues exist about whether the Legislature can do that, and hence this certified question from the district courts.

 
First District: Final Orders
Appellate attorneys may be interested in this decision, in which the First District reminds us that it will only deem decisions "final" under McGurn v. Scott where an order purports to be a final money judgment with an improper reservation of jurisdiction to determine prejudgment interest.

With yet another decision on this subject, in this case the First District reminds us that an order reserving jurisdiction to determine collateral source set-offs is not a final, appealable order, even if the parties then file no collaterl source motions.

Finally, while I doubt that many Abstract Appeal readers check this site from the confines of prison, any that do might wish to remember, as explained in this decision, that a motion to reconsider an order denying a Rule 3.800(a) motion does not toll the time for appealing the denial.



Monday, March 15, 2004
 
How Many?
I've lived in Florida for most of my life, and I have certainly seen my share of elderly drivers inching down the state's roadways, sometimes going the wrong way. So it came as no surprise to see this story in today's Tallahassee Democrat about the new law that requires drivers over 80 to take a vision test when renewing their licenses. What did surprise me, though, was this statistic from the story: Florida has nearly a quarter of a million licensed drivers over age 85. Wow.

 
Rappers Constitutionally Violated?
You may recall from this post last week that the cities of Miami and Miami Beach have been keeping tabs on rappers and their entourages when they visit those South Florida hotspots. Today's Miami Herald has this interesting story on whether that surveillance is constitutional.

 
Condo Battles
Having just moved into a condo, my eye was drawn to a story in today's Sun-Sentinel on a bill to create a statewide condo ombudsman and reign in condo boards of directors. You can read the story, which also discusses mandatory homeowners' associations, here.

 
Water Woes
Today's Daytona Beach News-Journal has this interesting story on the unfortunate problem of moderating how much water is drawn from one of Florida's gorgeous springs, Blue Spring.

 
Sunshine Sunday
This weekend column from Howard Troxler (of the St. Pete Times) discussed the beauty of Florida's public records law, the law that lets the sun shine in on the actions of Florida's government officials. Howard's a bit critical, though, of the government's tendency to make some records off limits to the public. He makes a lot of sense, but I cannot help but point out that Florida's public records law has some reasonable limitations. There is the much litigated, Dale Earnhardt-inspired exclusion for autopsy photos, discussed in this prior post, and long time Abstract Appeal readers may remember "My View" on the subject of private email.

 
Trivia
By the way, what a wild question from Hunter this past Friday. I had no idea we have an official soil. According to this page, Myakka fine sand covers more area in Florida than any other sand and is unique to this state.

One more thing -- if you love Florida's outdoors and have not yet taken a canoe ride down the Myakka River, you should.

 
Moving On
Well, I took the weekend to finish setting up the new place, and great progress was made. Not quite done everything, but getting close. Now I have a ton of case law and news updates to highlight. Time to get started.



Friday, March 12, 2004
 
Friday Florida Law Trivia Answer
Yes, Florida does have an official state soil. According to this statute, Florida's official soil is "Myakka fine sand."

 
Friday Florida Law Trivia!
Matt, unfortunately will not be able to blog today. I have a Court hearing out-of-county this morning, so my trivia question is posted earlier than usual.

Does Florida have an official state soil? If yes, name it.

I will try to post the answer this evening by 6 p.m.



Thursday, March 11, 2004
 
Judge Appeals
The AP has this interesting story on the oral argument held yesterday before the Eleventh Circuit in an appeal by U.S. District Judge Ursula Ungaro-Benages. Judge Ungaro-Benages is attempting to overturn a statute of limitations decision that proved fatal to her effort to recover millions of dollars seized from her ancestors in the 1930s by order of the German Nazi government.

 
Manatee School Board Prayer
For the latest on the Manatee County School Board prayer saga, check out this story in today's Bradenton Herald.

 
Giving
If you give to your church and later feel you should not have, perhaps you can sue to get the money back. Check out this story in today's Sun-Sentinel about a woman who gave nearly everything she owned and now claims to have been taken advantage of because of mental and emotional handicaps.

 
Urine Conflict, Still
You may recall from this September 2003 Abstract Appeal post that the Second District (decision here) and the Fifth District (decision here) have disagreed over whether a former Florida law required the Florida Department of Law Enforcement to approve a urine testing procedure before a urine test could be used in a DUI prosecution. Yesterday, the Fourth District weighed in on the side of admitting such tests despite the lack of FDLA-approved standards. The court relied in part on a 2003 amendment to the statute at issue which made clear that FDLA approval is not necessary for urine testing procedures.

You can read the Fourth District's decision here. The Second District's decision remains pending before the state supreme court.

Also, today's Miami Herald has this story on the Fourth District's decision. Interestingly, the story makes no mention of the Fifth District's earlier decision reaching the same result or the 2003 amendment that should obviate this controversy with respect to post-amendment arrests.



Wednesday, March 10, 2004
 
More On Revision 7
Hunter's Florida law trivia question last week focused on Revision 7 and how it is forcing the Florida Legislature to make tough decisions on funding for Florida's trial court system. While the subject may make for a good trivia question, there is little, if anything, truly trivial about it. The state trial court system is a symbiotic one, with many parts coming together to function as a coordinated, socially critical whole.

This month's Florida Bar Journal has an excellent article on one of those parts -- the Office of the State Courts Administrator -- and how it and other elements of the court system stand to be affected by Revision 7. If you do not know much about the OSCA but have an interest in the court system, definitely check the article out. It's available online here.

 
Constitutional Cafeteria
In this petition letter filed yesterday, Florida's Attorney General requested an advisory opinion from the Florida Supreme Court on whether a proposed constitutional amendment meets the single subject and title/summary clarity requirements applicable to such proposals. This particular proposal seeks to amend the Florida Constitution to limit the amount of attorney's fees that can be collected from a medical malpractice claimant's recovery. According to the petition, the language of the proposed amendment reads as follows:

In any medical liability claim involving a contingency fee, the claimant is entitled to receive no less than 70% of the first $250,000.00 in all damages received by the claimant, exclusive of reasonable and customary costs, whether received by judgment, settlement, or otherwise, and regardless of the number of defendants. The claimant is entitled to 90% of all damages in excess of $250,000.00, exclusive of reasonable and customary costs and regardless of the number of defendants. This provision is self-executing and does not require implementing legislation.

 
Not So Wild
Prosecutors' efforts to keep the defendants in a case from obtaining copies of the "Girls Gone Wild" tapes the defendants themselves filmed have resulted in a ruling that an underage girl baring her chest on film is not pornography, according to this story from the AP. The state attorneys had argued that, as pornography, the materials were illegal contraband that should not be turned over. We will have to wait and see how this ruling affects the numerous criminal charges against the filmmakers.

 
And They Get No Sympathy…
Somebody's watching hip-hop celebs who visit South Florida, and the watcher wears a badge. Read about it here in today's Miami Herald.

 
Parental Notification Amendment
The latest on the Legislature's efforts to propose a constitutional amendment regarding parental notification for abortions can be found here in today's Tallahassee Democrat.

 
Manatee Protection
There are differences of opinion on whether it goes too far or not far enough, but, either way, Manatee County commissioners passed a new manatee protection ordinance this week. Read about it here in today's Bradenton Herald.

 
Moving Bills
The AP has this story on a bill wending its way through Tallahassee that would require police interrogations to be electronically recorded and this story on a bill that would prohibit Florida officials from keeping lists of gun owners.



Tuesday, March 09, 2004
 
Judge Pryor
Those interested in the political controversy over Judge Pryor's recess appointment to the Eleventh Circuit may wish to check out this letter from Senator Edward Kennedy, which invites the court to consider that Judge Pryor's appointment is unconstitutional. Thanks to How Appealing for the link.

I'm caught in a whirlwind right now that prevents me from analyzing the issues here in any significant detail. The bottom line is that President Bush appointed Judge Pryor during an intrasession Senate recess without the approval of the full Senate, the vote for which having been long blocked by a filibuster led in part by, well, Senator Kennedy. In his letter, the senator now urges the court to consider the constitutionality of Judge Pryor's presence on the court, and attached to the letter is an anonymously drafted legal memorandum that concludes Judge Pryor's membership is constitutionally invalid and threatens to taint all decisions in which he participates.

In the interest of brevity, I will quote two passages from the memo that should give folks a sense of what is going on. First, this passage seems to sum up the memo's view of Judge Pryor's intrasession recess appointment:

Judge Pryor’s appointment is inconsistent with any of the assumed purposes of the recess appointments clause. The recess during which Mr. Pryor was appointed is the shortest intrasession recess ever used to attempt to appoint an Article III judge. This appointment, to a court with eleven active judges and six senior judges, made on the afternoon of the last business day before the day the Senate session resumed, and to a vacancy that had been open and the subject of confirmation proceedings long before the recess, cannot be justified as urgently necessary for the conduct of the Court’s business or because the Senate was, due to the brief recess, unavailable to provide advice and consent regarding the nomination.
Second, this passage attempts to identify a lack of historical authority for the intrasession recess appointment practice:

It should be noted that the practice of intrasession as opposed to intersession recess appointments of any kind is a relatively recent phenomenon, without any roots in history. It appears that intrasession appointments were unknown until 1867, and that there were none between 1867 and 1928. Intrasession Article III appointments have been exceedingly rare, almost all in a cluster from 1947 to 1954. There have been none since 1954, until now.
I suppose we can just wait and see if Senator Kennedy's letter prompts any action by the court.

 
Some Proposals…
Today's St. Pete Times has this roundup of a few interesting proposals making their way through the hallowed halls of Tallahassee, such as one that would permit individuals to scalp tickets on the Internet.

 
Amending Re Amendments
A committee of Florida's House of Representatives is considering a proposed constitutional amendment that would restrict citizens' ability to propose constitutional amendments to issues involving government structure or individual rights. The proposal would also require citizens' proposals to include a price tag and receive 60 percent of the vote to pass. Read about it all here in today's St. Pete Times.

On a related point, check out Howard Troxler's column in today's Times. I wonder if Howard is really in favor of direct government by the people, or if he is just annoyed with this particular Legislature.

 
Stop The Bullet Train?
More efforts are underway to allow Florida voters a chance this November to nix the high-speed rail constitutional amendment they approved in the 2000 election. Read about it here in today's Sun-Sentinel.

 
Still Trying To Print
Today is the Democratic primary in Florida, so a little election-related legal news appears to be in order. Here's just the thing:

U.S. Representative Robert Wexler has filed a new suit to add printers to touch screen voting machines, according to this story in today's Sun-Sentinel. He is apparently contending that the lack of a uniform system for conducting manual recounts in Florida violates the federal constitution but could be corrected by adding printers to the touch screen machines.

 
Suit Over 30-Second Fight
The mother of a Jacksonville boy who was beaten up in a 30-second school bus fight has declared her intent to sue those responsible: the Duval County School Board and the bus company. The bus's cameras captured the fight on tape. Today's Times-Union has the story here.

 
Rush News
The Palm Beach County State Attorney's Office has filed its response in what's known as the Rush Limbaugh appeal pending in the Fourth District. (Technically speaking, the proceeding is one seeking a writ of certiorari and not actually an appeal.) Read about the prosecutor's views in this story from today's Sun-Sentinel.

 
School Board Prayer
There is talk of compromise between those dueling over what religious references can be made when opening Manatee County School Board meetings. Read about it here in today's Bradenton Herald.

 
Improving Farmworker Conditions
Governor Bush has set his sights on helping migrant farm workers through new legislation. Read about it here in this extensive press release from the Governor's office and here in this story from the AP.



Monday, March 08, 2004
 
Palm Beach Troubles
How do you divide a $106 million marital estate in a divorce? David Markin's wife got half, according to this story in today's Palm Beach Post. He's fighting to reduce that award on appeal.

 
Gay Marriage Poll
The St. Pete Times and Miami Herald have conducted a rather extensive poll on Floridians' reaction to gay marriage issues. Look here for the Times's report and here for the Herald's report.

 
Constitutional Exposure?
The AP has this story on an Ormond Beach woman who believes her Bike Week arrest for baring her top -- done in protest of Daytona Beach's public nudity ordinance -- was unconstitutional. Makes me wonder about how folks could "constitutionally" protest other forms of prohibited conduct.

Also, today's Daytona Beach News-Journal has this more extensive treatment of the story.

 
Abstract Greeting
An abstract hello to Professor Michael Froomkin, who teaches at the University of Miami's law school and runs the interesting Discourse.net blog. I'm now aware of two Florida law school-type blogs -- one by UM student Matt Stein, who runs Looking Up, and Discourse.net. Does anyone know of any others?

 
Fifth District: Mind Your Confessions
If you were an assistant attorney general and believed the defendant had a valid argument on appeal, would you confess error? Or would you be too worried that the court will disagree with your confession, as happened in this decision from the Fifth District? I will not even hazard a guess about how the state reacted to the dissent in the case, which agreed with the confession.



Friday, March 05, 2004
 
Friday Florida Law Trivia Answer
The structure and funding of Florida's trial courts is the most important issue facing the Legislature that will affect the judiciary. I'll admit that this answer is subjective, but let me explain.

Florida has 67 county courts (one for each county) and 20 circuit courts. The circuit and county courts represent all of Florida's state trial courts. Currently, the funding for Florida's trial courts come from a mixture of state and county funds. Some counties are more generous to the courts than other counties, which creates disparity in the level and type of services provided. Additionally, as the county budgets get "tighter," counties have been seeking ways to reallocate their funding priorities.

During the last constitution revision commission, the counties were successful in lobbying the commission to put "Revision 7" on the ballot. The apparent intent was to create a uniform trial court system, funded by the state. The voters approved Revision 7 during the 1998 general election. The last date the Legislature has to come into full compliance is July 1, 2004.

The Legislature has not yet completely responded to the 1998 constitutional amendment requiring state funding. The future structure and funding for Florida's trial courts is in the hands of the Legislature. I cannot emphasis the importance of fully funding Florida's trial courts, including the state attorneys, public defenders, and conflict counsel.

Additional information concerning the history of Revision 7 and the judiciary's response to it may be found by clicking on the "Article V/Revision 7" link found here.

The Senate committee and the House committee with apparent responsibility for implementing Revision 7 have been working on this project for a couple of years.

 
Rush News
Matt Drudge has this update on the latest angle in the Rush Limbaugh saga, involving a former Palm Beach County county judge who supposedly was also addicted to OxyContin.

 
Friday Florida Law Trivia!
Springtime is a wonderful time of year. There is basketball. There is baseball. And, there is the Florida Legislature. Yes, the Legislature began its constitutionally prescribed annual 60-day session on Tuesday. Until sine die (the end of the session), anything can happen.

While not technically a trivia question, in recognition of the commencement of the legislative session, the question I pose is: What is the single most important issue the Legislature will address this session that will affect Florida's judiciary for many years to come?

The startling answer will be posted this afternoon.

 
Coming Up This Morning…
Hunter's weekly Florida law trivia question…

 
Schiavo News
Following last month's ruling by the Second District that Judge Baird did not provide enough analysis in his order denying the Schindlers' motion to intervene in Michael Schiavo's constitutional challenge, the Schindlers have apparently renewed their motion. Read about it here in today's Sun-Sentinel. For more on the Second District's decision, see this earlier Abstract Appeal post, and to read that decision, look here.

 
Rush News
The Palm Beach Post continues its coverage of the Rush Limbaugh saga here. One good thing to come out of this ordeal is that the general public's vocabulary may soon include the term "pre-trial diversion program."

 
Bullet Train
Yesterday, Governor Bush announced that he is promoting a petition drive to ask Florida voters to repeal the high-speed rail constitutional amendment they approved in 2000. Read about it here in today's Tallahassee Democrat.

 
Supreme Court: Sex Offender Registrations
Speaking of "heavy" cases, the Florida Supreme Court yesterday decided that, to hold a person criminally liable for failing to register as a sex offender, the state must prove that the defendant was aware of a registration requirement. You can read the decision here.

 
First District: Veterinary Malpractice and the Impact Rule
The folks at the Florida Supreme Court certainly have their share of "heavy" cases, due to the court's mandatory jurisdiction over death penalty and most utility cases, and considering that most conflicts between the districts involve somewhat arcane, though significant, points of law. Well, our friends in Tallahassee may appreciate the relatively mundane conflict generated yesterday by this decision from the First District. (To view it, you may need to save the file and then open it with a word processor -- the court posted the file in WordPerfect format.) The case certifies a quite serious, albeit pet-related conflict with the Third District over whether a pet owner may recover emotional distress damages for injuries to a dog caused by a veterinarian's negligence. In cases from 1978 and 1992, the Third District approved a pet owner's ability to recover emotional damages for injuries to a pet. Yesterday's decision from the First District held that the impact rule bars such recovery.

 
Strange
Yesterday's opinions from the First District were all released in WordPerfect format, rather than Adobe's pdf format. Seems inadvertent, but I'm not sure.

 
Kudos
Congratulations to Sylvia and Bob, also of Carlton Fields's Appellate Practice Group, for this great win in the Fifth District. The decision reversed a nearly $27 million judgment against our client, a security company.

 
Fourth District: Deceptive and Unfair Employment Trade Practices
If you did not know that Florida's Deceptive and Unfair Trade Practices Act can overlap with the employment protections of Chapter 448, allowing an employee to sue an employer under FDUTPA for terminating her based on her patronage of the employer's competitor, you may wish to check out this decision from the Fourth District.

 
Fourth District: Foreign Forum Selection Clauses
Foreign forum selection clauses can work, as shown by this decision from the Fourth District. (Someone please tell the Fourth about the typo in Louise's name in the attorney listings…)

 
Fourth District: Litigation Privilege and Interfering With A Lawyer's Fee Agreement Through Settlement
If you are the defendant in a case, can you offer a settlement that not only provides an excellent sum of money to the plaintiff but minimizes the plaintiff's obligation to his or her attorney for fees? Apparently not, according to the majority in this case from the Fourth District, at least in the sense that when the attorney later sues you for intentional interference with the fee agreement, you will not be able to avail yourself of immunity under the litigation privilege. At least one person thinks that sounds wrong: Judge Gross dissented based on the supreme court's litigation privilege case law.

 
Fourth District: Laches and Child Support
Family law fans may wish to check out this decision from the Fourth District, which reversed a retroactive child support order based on -- wow -- laches.



Thursday, March 04, 2004
 
Questions, questions
For numerous years prior to 1999, Florida law simply capped punitive damages at three times the amount of compensatory damages in "any civil action based on negligence, strict liability, products liability, misconduct in commercial transactions, professional liability, or breach of warranty, and involving willful, wanton, or gross misconduct . . . ." But what exactly does "misconduct in commercial transactions" mean? Is a transaction a commercial transaction if it involves a consumer? Are the concepts "commercial transaction" and "consumer transaction" mutually exclusive?

The Fourth District has just weighed on these questions. In this case released yesterday, the court held that this statutory cap on punitive damages did not apply where a consumer successfully sued a car dealership for fraud in selling him a supposedly accident-free demo car that had actually been involved in an accident. (No, it was not a BMW dealership, it was a Cadillac dealership, but way to go with the free association…) The court held that "commercial transactions" do not involve consumers. The court also certified the following to the Supreme Court of Florida as a question of great public importance:

IS THE PURCHASE AND SALE OF AN AUTOMOBILE AT THE RETAIL LEVEL FOR THE BUYER'S PERSONAL OR HOUSEHOLD USE A "COMMERCIAL TRANSACTION" AS DEFINED BY SECTION 768.73, FLORIDA STATUTES (1995), THEREBY LIMITING PUNITIVE DAMAGES NOT TO EXCEED THREE TIMES THE AMOUNT OF COMPENSATORY DAMAGES?
As an aside, I'll note that I just bought a whole new entertainment center for the new condo, and it sure felt like a commercial transaction.



Wednesday, March 03, 2004
 
Fourth District: Orders Drafted By Counsel
For the latest appellate exposition on how trial courts should handle orders proposed by counsel, particularly in family law cases, check out this decision released today by the Fourth District.

 
Fourth District: "No Information"?
If you know what it means to file a "no information" in a criminal case, hurry up and tell the Fourth District, which decided that this strange filing seems more like a "no action" than a nolle prosequi. The court's decision is available here.

 
Third District: Not Kidding
The Third District could hardly have been more clear than it was in this case:

First, for what we think and hope is the first and last time in legal history, an assistant state attorney was permitted to be called as a witness in the case and to testify, allegedly as "background," to her investigation of the case itself, her opinion concerning the defendant’s guilt, her assessment of the victim’s credibility, and that the defendant had committed many other uncharged crimes against the victim. Even an intimation in argument by the prosecutor of any one of these matters is patent reversible error.
(footnotes omitted).

 
Standard Jury Instructions
Florida's standard jury instructions for civil cases now include a punitive damages instruction that expressly informs the jury that it "may not award an amount that would financially destroy" the defendant. See this opinion from the Florida Supreme Court.

 
Supreme Court: DUI Instruction Conflicts
In this recent case, the Florida Supreme Court resolved a set of district court conflicts over the presumption of impairment instruction used in DUI cases. The decision includes interesting analyses of what constitutes fundamental error in instructing a jury and harmless error.

 
Second District: Whistle-Blower Attorney's Fees
Those who litigate federal issues are probably familiar with the Christianburg standard for attorney's fees awards, which directs a court to apply different tests for determining entitlement to fees depending on whether the plaintiff or the defendant prevailed. In this case, the Second District held that standard inapplicable to the prevailing party attorney's fees provision in Florida's private sector whistle-blower's statute. At the same time, the court determined that fee awards under that statute were discretionary and declined to award appellate attorney's fees to the appellant, even though the appellee's position was legally meritless. The court reiterated its view that attempting to uphold a judgment is never frivolous.



Tuesday, March 02, 2004
 
Second District: Client Knows Best?
Sometimes.

 
Second District: Motions to Disqualify
I'm tempted to use this as a Friday trivia question the next time Hunter finds himself distracted by a trial, but, nah. I'm still catching up on last week's plethora of noteworthy decisions (fortunately, I've no intent to move again for years…), and I'm just going to blog this now. For fun, I'll do it in the form of a question:

We know that on a first motion to recuse a trial judge, the judge may not challenge the veracity of the motion's allegations but must merely determine whether, if true, the motion presents facts that require disqualification. We also know that, if the movant tries to disqualify a successor judge, then that judge can challenge the facts alleged in that motion. But what about a successive motion before the first judge? Can the first judge challenge the facts alleged in that motion? The Second District has the answer here.

 
Questions, questions
You may recall from this earlier Abstract Appeal post that the Fourth District recently held that the sentence a person is currently serving need not be for a sexually violent offense for the person to be committed under the Jimmy Ryce Act. Yesterday, in this case, the First District agreed. Like the Fourth District, though, the First District certified the following question to the Florida Supreme Court as a question of great public importance:

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

 
First District: Offers of Judgment
If you are interested in whether settlement amounts paid to other defendants can be considered when determining whether a plaintiff's recovery was sufficient to avoid the attorney's fees obligation resulting from a defendant's offer of judgment -- and it's easy to see why you wouldn't be -- check out this decision from the First District.

 
Minor Edit…
Looking back over that last post, I think "[a]fter being found guilty and receiving the death penalty . . . " is slightly inaccurate. I've changed it.

 
Going Up…
Yesterday, the United States Supreme Court granted a writ of certiorari in an appeal from this decision by the Supreme Court of Florida. The case, which has an extensive procedural history, involves a death row inmate whose attorney decided at trial to acknowledge the defendant's guilt to a heinous murder in hopes the client would not receive the death penalty. The attorney said to the jury, among other things:

In this case, there will be no question that Jeannie [sic] Bickner died a horrible, horrible death. Surely she did and that will be shown to you. In fact, that horrible tragedy will be proved to your satisfaction beyond any reasonable doubt. In this case, there won't be any question, none whatsoever, that my client, Joe Elton Nixon, caused Jeannie [sic] Bickner's death. Likewise, that fact will be proved to your satisfaction beyond any reasonable doubt. This case is about the death of Joe Elton Nixon and whether it should occur within the next few years by electrocution or maybe its natural expiration after a lifetime of confinement.
After being found guilty and being sentenced to death, the defendant asserted that his counsel was ineffective for using this strategy, even though the defendant knew of it. In a 2000 proceeding, the Florida Supreme Court held (in this opinion) that the defense attorney's conduct amounted to a guilty plea on his client's behalf and that the defendant was entitled to a new trial unless the state could show that the client affirmatively and explicitly agreed to the strategy. Following a hearing on remand, the case returned to the Florida Supreme Court, which held that no competent evidence showed the defendant affirmatively and explicitly agreed to the strategy. As a result, and over a vigorous dissent by Justice Wells (joined by Justice Shaw) and what I'll call an effective dissent by Justice Lewis, the Florida Supreme Court ordered a new trial.

We'll know by summertime how that decision will fare.

 
First District: AHCA Victory
Kudos to the folks at the Florida Solicitor General's office for their win in this case decided Friday by the First District. The case involved a $20 million jury award against Florida's Agency for Health Care Administration for supposedly breaching a Medicaid payment agreement with a nursing home. The court reversed the judgment, holding that the home's breach of contract claims were legally unsupportable (and largely efforts to avoid a settlement the home had previously made with the agency) and that equitable estoppel is a defense, not a cause of action that will support a damages award.

 
Eleventh Circuit: Your Neighborhood Allstate Agent
Having just moved into a new place, I'm headed to see my Allstate agent today to discuss some insurance issues. I wonder if she'll know about this case decided Friday by the Eleventh Circuit. The case concerns a Fair Labor Standards Act suit on behalf of Allstate agents for a supposedly unlawful failure to provide proper compensation when the agents' work weeks exceeded 40 hours. The court affirmed a summary judgment on Allstate's behalf with regard to the test plaintiffs in the case, agreeing they were exempt administrative employees under the act, but the court reversed the judgment as to the non-test plaintiffs based on a notice issue under Rule 56(c).

 
Eleventh Circuit: Retaliation in Employment Claims
Employment law fans may wish to check out this interesting decision from the Eleventh Circuit. The court addressed what constitutes an adverse employment action and the application of qualified immunity in a case involving a Georgia state university professor.

 
Eleventh Circuit: En Banc'ing Deportation Case
Last week, (yes, I'm still catching up) the Eleventh Circuit vacated its earlier opinion in this deportation case and voted to hear the case en banc. The en banc order, which I believe is the first published order to note Judge Pryor's recess appointment to the court, is available here.

 
Eleventh Circuit: First Amendment
If a good First Amendment decision requires an interesting speaker with interesting speech and a thorough legal analysis by a court, then this decision from the Eleventh Circuit qualifies as a good First Amendment decision. The case involves an establishment called Café Erotica and, in addition to general promotions, such unusual political ads as "James Acosta is a fat ass Barney Fife." The decision involves a challenge to a municipal ordinance that the court, over a partial dissent, ultimately finds unconstitutional.



Monday, March 01, 2004
 
Oops
What's wrong with this headline: "Broward jury to sentence man today for 1984 slaying of Lauderdale woman"?

 
Parental Rights Amendment
Mary Jo Melone has this column in today's St. Pete Times on why she appreciates Florida's moderate Republican leaders.

 
Catching Up
Last week has proved itself to have been a rough time to be absent from the blog. Our appellate courts were especially prolific. I'm catching up, though…

 
First District: Conflict Over Criminal Limitations Periods
Does a defendant's absence from the state toll the running of a criminal limitations period under section 775.15(6) if a delay in the defendant's prosecution is unreasonable? In this decision, the First District said yes and certified conflict on this point with an earlier case from the Second District.

 
First District: Arbitration
Fans of arbitration case law or nursing home litigation issues will want to check out this decision from the First District. The court reversed an order denying a motion to arbitrate nursing home claims brought under Chapter 400's nursing home "residents' rights" statutes.

 
First District: Corporate Shield Doctrine
Stayed at a Wyndham hotel lately? If so, or if you think personal jurisdiction case law is fun, then perhaps you might take a look at this decision from the First District. The case involves a suit by Florida's Attorney General against various companies that own or operate Wyndham hotels as well as executives of those companies, based on a $2.50 - $3.00 per night "energy surcharge" that the hotels charged. The narrow issue on appeal concerned the trial court's ability to exercise personal jurisdiction over the individuals. The trial court had relied on the corporate shield doctrine to reject personal jurisdiction, but the appellate court reversed, holding that the doctrine is not applicable to intentional misconduct expressly aimed at the forum state, which the AG alleged here.

 
First District: Election Law
Election law fans, as well as those who still cannot get enough of the legal side of the 2001 presidential election crisis, will want to check out this decision from the First District. The court relied on the Florida Supreme Court's decision in Gore v. Harris to rule that a trial court erred in an election contest by simply relying on the canvassing board's determination that undervoted ballots were not countable votes for any candidate. The First District pointed out that the Florida Supreme Court's decision on reexamining ballots had been subject to criticism in the U.S. Supreme Court's Bush v. Gore decision but that, since that portion of the Florida Supreme Court's decision had not been reversed, it remains the law of Florida.

 
First District: Jury Instructions
In this case, the First District reminds us that special hazard instructions are applicable in auto accident cases only when there is truly an exceptional traffic condition, not normal, everyday driving conditions.

 
First District: Worker's Compensation
If you are interested in workers' compensation law, and in particular the special or increased hazard doctrine, be sure to check out this case from the First District. The court rejected the doctrine's applicability in a case involving a fall onto a concrete floor, and in dissent Judge Ervin questioned whether the majority had actually rejected the doctrine in toto. (Well, he didn't use those words, but sometimes outmoded Latin phrases just work well.)

 
First District: Appealable Orders
This decision is a reminder from the First District that a trial court's reservation of jurisdiction to determine collateral source set-offs will prevent an otherwise final judgment from being a final, appealable order.





 
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